Collins v Tabart

Appeal Outcome: Special leave application granted by the High Court - 6 December 2007

New South Wales

Court of Appeal

CITATION:	Collins v Tabart [2007] NSWCA 78 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 March 2007
JUDGMENT DATE:	4 April 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 1; Tobias JA at 1
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal – interference with judge’s findings of fact – findings based on credibility of witnesses – whether trial judge erred in resolving conflicts in evidence - Appeal – inconsistency of plaintiff’s evidence with objectively established facts
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) s 45(4)
CASES CITED:	Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57
PARTIES:	Peter Charles Collins (Appellant) John Kimberley Tabart (Respondent)
FILE NUMBER(S):	CA 40463/06
COUNSEL:	BM Toomey QC; G Farmer (Appellant) SG Campbell SC (Respondent)
SOLICITORS:	Walker Smith Solicitors (Taree) TL Lawyers (Newcastle)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	26/2004
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	21 June 2006

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CA 40463/06

MASON P
BEAZLEY JA
TOBIAS JA

4 April 2007

Peter Charles Collins v John Kimberley Tabart

Short Reasons for Decision

1 THE COURT: The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s 45(4) of the Supreme Court Act 1970 (NSW), the Court’s reasons in short form are as follows.

2 The appellant bears the formidable task of overturning credibility-based findings which in turn led the trial judge to conclude that she was not persuaded to accept that the respondent was negligent or that any negligence on the respondent’s part had caused the accident.

3 The findings were further supported by unchallenged expert evidence that in turn drew upon data collected by police from the unit who attended the scene shortly after the accident. The expert evidence and police data that was translated into a plan (Exh 14) was capable of supporting the respondent’s case and corroborating a key witness, Ms Ferguson. Indeed, we consider it showed that the probabilities favoured the respondent, as her Honour concluded.

4 The appellant faced a further difficulty in that he gave inconsistent versions of how the accident happened. Even more difficult for the appellant is the fact that none of those versions, when compared to such objective evidence as there was, represented the likelihood of the accident happening as he said.

5 The appellant sought to challenge the trial judge’s reasons on the basis that there was an error in the process of fact finding: see Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57 per Hayne J at [129].

6 The respondent contended that…