Shimokawa v Lewis [2009] NSWCA 266

Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s267/2009

New South Wales Court of Appeal

CITATION: Shimokawa v Lewis [2009] NSWCA 266

HEARING DATE(S): 14 July 2009

JUDGMENT DATE: 11 September 2009

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Ipp JA at 199

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff for $1,444,851 and the order that the defendant pay the plaintiff's costs; (3) Remit the proceedings to the District Court for a new trial on all issues except whether the appellant had failed to take reasonable care in his driving; (4) Costs of the first trial to be in the disposal of the judge conducting the new trial; (5) Respondent pay appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: TORTS - negligence - motor vehicle accident - whether plaintiff in vehicle at time defendant collided with it - appellate review of trial judge's findings - various elements in challenge to fact-finding - in particular failure to note consistency of evidence of two unconnected groups of witnesses - detailed consideration of judge's reasons - appellate court must conduct real review - errors in process of fact-finding despite credibility-based findings - new trial ordered save for an issue not the subject of appeal.

Abalos v Australian Postal Commission (1990) 171 CLR 167; Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452; Briginshaw v Briginshaw (1938) 60 CLR 336; Container Terminals Australia Ltd v Huseyin [2000] NSWCA 320; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Jones v Hyde (1989) 63 ALJR 63; CASES CITED: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1; Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; (2008) 249 ALR 663; Pateman v Higgin (1957) 97 CLR 521; Rebenta Pty Ltd v Wise [2009] NSWCA 212; SS Hontestroom v SS Sagaporack (1927) AC 37; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343; Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85.