Lewis v Shimokawa - [2012] NSWCA 300

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lewis v Shimokawa [2012] NSWCA 300
Hearing dates: 27 July 2012
Decision date: 24 September 2012
Before: Bathurst CJ; at [1]
McColl JA; at [2]
Hoeben JA; at [3]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORT - negligence - motor vehicle accident - consecutive collisions - whether appellant was in her vehicle at time of second collision - credit findings by trial judge - rejection of appellant's evidence and acceptance of evidence of witnesses of respondent - whether evidence of respondent's witnesses had been contaminated by post-accident discussions and the conduct of an investigator - whether "incontrovertible facts" inconsistent with his Honour's findings existed - whether his Honour's findings were "glaringly improbable" or "contrary to compelling inferences" - whether content of an expert report should have been specifically referred to by his Honour - no basis for interfering with the decision of trial judge established.
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Director General of Department of Community Services, Re Sophie [2008] NSWCA 250
Fox v Percy [2003] HCA 22; 214 CLR 118
Palmer v Dolman [2005] NSWCA 361
Shimokawa v Lewis [2009] NSWCA 266
Category: Principal judgment
Parties: Rebecca Lewis - Appellant
Shizunori Shimokawa - Respondent
Representation: Counsel:
Ms S Norton SC/Ms M Fraser - Appellant
Mr K Rewell SC/Mr A Renshaw - Respondent
Solicitors:
Brydens Law Office - Appellant
Sparke Helmore - Respondent

File Number(s): 2007/290379
Decision under appeal

Date of Decision:

2011-07-01 00:00:00

Before:

Colefax DCJ

File Number(s):

2007/290379

Judgment

BATHURST CJ: I agree with Hoeben JA.

McCOLL JA: I agree with Hoeben JA.

HOEBEN JA:

Nature of appeal

The appellant brought proceedings in negligence against the respondent claiming damages for personal injury in respect of a motor vehicle accident which occurred on 21 November 2003. There was no issue that a collision occurred between a vehicle driven by the respondent and the appellant's vehicle. The only issue was whether the appellant was inside her vehicle at the time of the collision.

The matter was heard in the District Court between 20 - 29 September 2010 and 24 - 25 May 2011. Colefax DCJ delivered judgment on 1 July 2011. His Honour found in favour of the respondent. The appellant has appealed from that decision.

Background

On the afternoon of 21 November 2003 the appellant in the course of her work was driving a Toyota Hi Ace van south along the F6 Freeway from Sydney to Wollongong. The Freeway in that direction consisted…

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 Lewis v Shimokawa

Details

AGLC: Lewis v Shimokawa [2012] NSWCA 300
Case: [2012] NSWCA 300
Decision Date: 24 September 2012

CaseChat Overview and Summary

The appeal in *Lewis v Shimokawa* concerned a motor vehicle accident and allegations of negligence. The appellant, Ms Lewis, appealed a decision of the trial judge who had made findings of fact adverse to her. The primary dispute revolved around whether Ms Lewis was inside her vehicle at the time of a second collision.

The Court of Appeal was required to determine whether the trial judge erred in rejecting Ms Lewis's evidence and accepting the evidence of the respondent's witnesses. Specifically, the court considered whether the evidence of the respondent's witnesses had been improperly contaminated by post-accident discussions and the actions of an investigator. Further issues included whether there were "incontrovertible facts" inconsistent with the trial judge's findings, and whether those findings were "glaringly improbable" or "contrary to compelling inferences." The court also considered whether the content of an expert report should have been specifically referred to by the trial judge.

The Court of Appeal found no basis to interfere with the trial judge's decision. The court applied principles relating to appellate review of findings of fact, particularly concerning the credit of witnesses. The trial judge's findings were upheld, with the court concluding that the appellant had not established that the findings were demonstrably wrong or that the evidence relied upon by the respondent had been rendered unreliable.

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 the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lewis v Shimokawa [2012] NSWCA 300
Hearing dates:	27 July 2012
Decision date:	24 September 2012
Before:	Bathurst CJ; at [1] McColl JA; at [2] Hoeben JA; at [3]
Decision:	(1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORT - negligence - motor vehicle accident - consecutive collisions - whether appellant was in her vehicle at time of second collision - credit findings by trial judge - rejection of appellant's evidence and acceptance of evidence of witnesses of respondent - whether evidence of respondent's witnesses had been contaminated by post-accident discussions and the conduct of an investigator - whether "incontrovertible facts" inconsistent with his Honour's findings existed - whether his Honour's findings were "glaringly improbable" or "contrary to compelling inferences" - whether content of an expert report should have been specifically referred to by his Honour - no basis for interfering with the decision of trial judge established.
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Director General of Department of Community Services, Re Sophie [2008] NSWCA 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Palmer v Dolman [2005] NSWCA 361 Shimokawa v Lewis [2009] NSWCA 266
Category:	Principal judgment
Parties:	Rebecca Lewis - Appellant Shizunori Shimokawa - Respondent
Representation:	Counsel: Ms S Norton SC/Ms M Fraser - Appellant Mr K Rewell SC/Mr A Renshaw - Respondent Solicitors: Brydens Law Office - Appellant Sparke Helmore - Respondent
File Number(s):	2007/290379
Decision under appeal	Date of Decision: 2011-07-01 00:00:00 Before: Colefax DCJ File Number(s): 2007/290379