Collins v Tabart

HIGH COURT OF AUSTRALIA

GLEESON CJ
KIRBY, HAYNE, CRENNAN AND KIEFEL JJ

PETER CHARLES COLLINS   APPELLANT

AND

JOHN KIMBERLEY TABART  RESPONDENT

Collins v Tabart
[2008] HCA 23
16 April 2008
S638/2007

ORDER

1.        Special leave to appeal revoked.

2.        Appellant to pay the respondent's costs.

On appeal from the Supreme Court of New South Wales

Representation

B M Toomey QC with G A Farmer for the appellant (instructed by Walker Smith Solicitors)

S G Campbell SC with J P Guihot for the respondent (instructed by TL Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GLEESON CJ.   In this matter I will ask Justice Kirby to give the first judgment.

2. KIRBY J.   This appeal, by special leave, challenges a judgment of the Court of Appeal of the Supreme Court of New South Wales[1].  That Court, comprising Mason P, Beazley and Tobias JJA, unanimously dismissed an appeal by Mr Peter Collins ("the appellant") against a judgment of the District Court of New South Wales, constituted by Gibb DCJ.  Her Honour had entered judgment at trial in favour of the respondent, Mr John Tabart, which the appellant contests in this Court.

   [1]Collins v Tabart [2007] NSWCA 78.

3. The appeal arises out of a collision that occurred on 2 July 2002.  The collision took place between a truck, driven by the appellant, and a silver Subaru sedan, driven by the respondent.  The collision happened on a clear winter's day on a straight stretch of the F3 freeway, north of Sydney.  Radically different versions of the events were given by the two drivers. 

4. Put shortly, the appellant's case was that the respondent drove his vehicle across the lanes of traffic in front of his truck, from the second lane of traffic, through the first lane, towards the breakdown lane.  According to the appellant, this movement caused him to swerve left, at which point he heard a thud, by inference the collision with the Subaru.  The appellant's truck finished up going over the western embankment of the freeway, causing him to be seriously injured, allegedly as a result of negligence on the part of the respondent in his driving of the Subaru.

5. The respondent's case was that he was stationary in the breakdown lane at the time of impact.  Upon this version of events, if accepted, there would be no relevant negligence on the part of the respondent.  Accordingly, resolving where the truth probably lay was crucial to the outcome of the trial.

6. In her conclusions, the primary judge accepted that the version given by the respondent was to be preferred.  She therefore entered judgment in favour of the respondent.  She concluded that the appellant gave his evidence honestly, but that his evidence was unreliable, and the evidence of the respondent was to be preferred.  The difficulty of disturbing such a conclusion on appeal is self-evident.

7. The Court of Appeal gave its reasons in the appeal in short form,…