BELL v VEIGEL; BELL v BROUGHTON; BROUGHTON v VEIGEL [2008] NSWCA 36

Appeal Outcome: Special leave refused with costs by the High Court - 28 August 2008(S163/2008; S164/2008; S165/2008; S167/2008; S168/2008; S199/2008; S200/2008; S201/2008)

New South Wales Court of Appeal

CITATION: BELL v VEIGEL; BELL v BROUGHTON; BROUGHTON v VEIGEL [2008] NSWCA 36

HEARING DATE(S): 29, 30 August 2007

JUDGMENT DATE: 20 March 2008

JUDGMENT OF: Mason P at 1; Giles JA at 243; Tobias JA at 244

DECISION: Each appeal and Mrs Broughton's cross-appeal upheld with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – New trial – in general and particular grounds – particular grounds – verdict against evidence or weight of evidence – verdict against weight of evidence – when new trial granted – preponderance of evidence in favour of unsuccessful party – where findings on liability not necessarily supported because of gaps within the evidence - APPEAL AND NEW TRIAL – Appeal – general principles – interference with judge's findings of fact – proof and evidence – other matters – where gap in evidence supporting findings of liability should have been addressed – where conflicting evidence of witness relied upon should have been addressed - PROCEDURE – Judgments or orders – amending, varying and setting aside – other cases adequacy of reasons – whether complainant should have brought adequacy of reasons up prior to entry of judgment – whether complainant should have brought it up when opportunity was given - TORTS – Negligence – contributory negligence – particular cases – road accident cases – whether failure to give way – whether defendant not keeping proper lookout – where defendant has right of way

CATEGORY: Principal judgment

Adami v The Ethical Standards Officer [2005] EWCA Civ 1754 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 CASES CITED: Edwards v The Queen (1993) 178 CLR 193 Martinez v Western Australia [2007] WASCA 143, 172 A Crim R 389 Smith v Australia and New Zealand Banking Group Ltd, [1999] NSW Conv R 56,904 (55-884), [1996] 7 BPR 15, 069 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 Whisprun Pty Ltd v Dixon (No 2) [2004] HCA 2, 78 ALJR 321