Ross v Vaughan [2016] NSWCA 188

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ross v Vaughan [2016] NSWCA 188 Hearing dates: 15 March 2016 Decision date: 05 August 2016 Before: Beazley P at [1], Simpson JA at [2], Harrison J at [59] Decision: In District Court proceedings No 2012/192903 (Daniel Mark Ross v Mark Anthony Vaughan): (1) Allow the appeal, set aside the verdict and judgment for the defendant (Mark Anthony Vaughan) and the order that the plaintiff pay the costs of the proceedings; (2) Order that there be judgment for the plaintiff (Daniel Mark Ross); (3) Remit the proceedings to the District Court for assessment of damages; (4) Order that the respondent pay the costs of the appeal, and of the proceedings in the District Court; (5) Order that, if otherwise entitled, the respondent have a certificate under the Suitors' Fund Act 1951 (NSW).

In District Court proceedings No 2013/145816 (Mark Anthony Vaughan v Daniel Mark Ross): (1) Set aside the verdict for the plaintiff on the issue of liability; (2) Order that there be judgment for the defendant (Daniel Mark Ross); (3) Order that the plaintiff (Mark Anthony Vaughan) pay the defendant's costs of the proceedings in the District Court and of the appeal. Catchwords: TORTS – negligence – motor vehicle accident – collision between two motor vehicles – competing versions of events – primary judge accepted version of events given by respondent and found appellant's vehicle was on wrong side of road

APPEAL – civil – challenge to findings of fact – function of appellate court in relation to fact finding at trial – factual findings of primary judge not based on assessment of credit – appeal by way of rehearing – Supreme Court Act 1970 (NSW), s 75A – no impediment of kind stated in Fox v Percy [2003] HCA 22; 214 CLR 118 – primary judge erred in findings of fact – skid marks – debris – position where vehicles came to rest – more probable than not respondent's vehicle was on wrong side of road – appeal allowed Legislation Cited: Supreme Court Act 1970 (NSW), ss 75A, 101 Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 Category: Principal judgment Parties: Daniel Mark Ross (Appellant) Mark Anthony Vaughan (Respondent) Representation: Counsel: R S McIlwaine SC (Appellant) R Stitt QC/T Berberian (Respondent)