Percy v Fox [2001] NSWCA 100

New South Wales Court of Appeal

CITATION : Percy v Fox [2001] NSWCA 100 FILE NUMBER(S) : CA 40955/99 HEARING DATE(S) : 7 March 2001 JUDGMENT DATE : 12 April 2001

PARTIES : Megan Percy Barbara Fox JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Fitzgerald JA at 75

LOWER COURT JURISDICTION : District Court LOWER COURT 9/93 FILE NUMBER(S) : LOWER COURT Herron DCJ QC JUDICIAL OFFICER :

COUNSEL : Appellant: H G Shore Respondent: P Menzies QC/C R Burge SOLICITORS : Appellant: Sparke Helmore Respondent: Beston Macken McMannis CATCHWORDS : Accident between a motor vehicle and a horse and rider - Inference with Judge's findings of fact - Evidence - Conflict between police officer attending scene and expert's report. LEGISLATION CITED : Suitor's Fund Act 1951 (NSW) Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR DECISION : Appeal allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40955/99 DC 9/93

HANDLEY JA BEAZLEY JA FITZGERALD JA

Thursday, 12 April 2001

PERCY v FOX

FACTS

The respondent was seriously injured when the horse she was riding collided with a Kombi van driven by the appellant. The trial judge held that the collision occurred because the appellant's vehicle was on the wrong side of the road at the time of impact. In coming to that conclusion the trial judge made findings of credit in favour of the respondent and her riding companion, Mr Murdoch, and against the appellant. Both parties had retained traffic engineer experts who provided reports on the accident tendered as evidence in the trial, but neither expert was called to give oral evidence. The police officer who attended the accident observed and measured skid marks which were on the appellant's correct side of the road.