Hering v Martin - [2004] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

Hering v Martin & Anor [2004] QCA 70

PARTIES:

MANFRED KARL HERING
(plaintiff/appellant)
v
GARRY THOMAS MARTIN
(first defendant)
SUNCORP GENERAL INSURANCE LIMITED
ACN 075 695 966

(second defendant/respondent)

FILE NO/S:

Appeal No 7206 of 2003

DC No 242 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury – Liability Only

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

19 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2004

JUDGES:

Davies and Williams JJA and McMurdo J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. Appellant to pay respondent’s costs of the appeal to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where injury arose from motor vehicle accident – where there were no other witnesses other than the parties involved – where expert evidence was given as to the likely sequence of events – where trial judge was unable to conclude which party’s case was more probable

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, cited
Devries v Australian National Railways Commission (1993) 177 CLR 472, cited
Fox v Percy (2003) 77 ALJR 989, cited

Nesterczuk v Mortimore (1965) 115 CLR 140, cited

COUNSEL:

R W Trotter for the appellant

S C Williams QC, with P W Hackett, for the respondent

SOLICITORS:

Schultz Toomey O’Brien Lawyers (Mooloolaba) for the appellant

Quinlan Miller & Treston for the respondent

DAVIES JA: I agree with the reasons for judgment of McMurdo J and with the orders he proposes.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of McMurdo J and there is nothing I wish to add thereto. The appeal should be dismissed with costs to be assessed.

McMURDO J: On 11 May 1997, the appellant was driving home along Stanley River Road, Maleny, when his car collided with a tractor travelling in the opposite direction. He was injured in the collision and sued the tractor’s driver, Mr Martin, and his insurer, the present respondent, in the District Court. Quantum was admitted in the sum of $110,000. Each driver claimed that the collision was caused by the other’s driving partly on his incorrect side of the road. The trial judge felt unable to conclude that one version was more probable than the other, and so he held that the appellant had not proved his case and his claim should be dismissed. The appellant seeks orders to set that aside and for judgment in the admitted sum.

The determination of the question of negligence effectively turned upon whether the appellant proved that, more probably than not, the tractor was partly on its wrong side of the road. No one other than the two drivers saw this collision occur. Each of them…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hering v Martin

Details

AGLC: Hering v Martin [2004] QCA 70
Case: [2004] QCA 70
Decision Date: 19 March 2004

CaseChat Overview and Summary

The appeal in Hering v Martin was heard by the Supreme Court of New South Wales. The appellant, Mr Hering, sought to overturn a decision that dismissed his claim for damages arising from a motor vehicle accident. The respondent, Mr Martin, was the driver of the vehicle that collided with Mr Hering’s bike. The primary judge found that there was insufficient evidence to determine which party's account of the accident was more probable.

The primary legal issue before the court was whether the appeal court should interfere with the trial judge’s findings of fact, given that they were based on the credibility of the witnesses. The court needed to determine if the trial judge’s inability to conclude which party’s account was more probable amounted to an error that warranted interference. The appeal also challenged whether the trial judge had correctly applied the principles in assessing the credibility of the parties and the expert evidence provided.

The court held that the trial judge’s findings were within the bounds of the judge's discretion and that the appeal court should not interfere with such findings absent clear error. The trial judge had carefully considered the evidence, including the expert testimony, and was unable to determine which party's version of events was more probable. The court found that this was a classic case where the trial judge’s assessment of credibility was not open to interference by the appellate court. The appeal court emphasised that its role was not to re-evaluate the evidence but to ensure that the trial judge had applied the correct legal principles. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay respondent’s costs of the appeal to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hering v Martin & Anor [2004] QCA 70
PARTIES:	MANFRED KARL HERING (plaintiff/appellant) v GARRY THOMAS MARTIN (first defendant) SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966 (second defendant/respondent)
FILE NO/S:	Appeal No 7206 of 2003 DC No 242 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury – Liability Only
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	19 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2004
JUDGES:	Davies and Williams JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. Appellant to pay respondent’s costs of the appeal to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where injury arose from motor vehicle accident – where there were no other witnesses other than the parties involved – where expert evidence was given as to the likely sequence of events – where trial judge was unable to conclude which party’s case was more probable Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, cited Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Fox v Percy (2003) 77 ALJR 989, cited Nesterczuk v Mortimore (1965) 115 CLR 140, cited
COUNSEL:	R W Trotter for the appellant S C Williams QC, with P W Hackett, for the respondent
SOLICITORS:	Schultz Toomey O’Brien Lawyers (Mooloolaba) for the appellant Quinlan Miller & Treston for the respondent