Percy v Fox

[2001] NSWCA 100

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Percy v Fox [2001]  NSWCA 100

FILE NUMBER(S):
40955/99

HEARING DATE(S): 7 March 2001

JUDGMENT DATE:    12/04/2001

PARTIES:
Megan Percy
Barbara Fox

JUDGMENT OF:        Handley JA Beazley JA Fitzgerald JA   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):             9/93

LOWER COURT JUDICIAL OFFICER:        Herron DCJ QC

COUNSEL:
Appellant:     H G Shore
Respondent: P Menzies QC/C R Burge

SOLICITORS:
Appellant:    Sparke Helmore
Respondent: Beston Macken McMannis

CATCHWORDS:
Accident between a motor vehicle and a horse and rider
Inference with Judge's findings of fact
Evidence
Conflict between police officer attending scene and expert's report.

LEGISLATION CITED:
Suitor's Fund Act 1951 (NSW)

DECISION:
Appeal allowed

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA         40955/99
  DC         9/93

HANDLEY JA
  BEAZLEY JA
  FITZGERALD JA

Thursday, 12 April 2001

PERCY v FOX

FACTS

The respondent was seriously injured when the horse she was riding collided with a Kombi van driven by the appellant.  The trial judge held that the collision occurred because the appellant’s vehicle was on the wrong side of the road at the time of impact.  In coming to that conclusion the trial judge made findings of credit in favour of the respondent and her riding companion, Mr Murdoch, and against the appellant.  Both parties had retained traffic engineer experts who provided reports on the accident tendered as evidence in the trial, but neither expert was called to give oral evidence.  The police officer who attended the accident observed and measured skid marks which were on the appellant’s correct side of the road.

HELD per Beazley JA (Handley JA agreeing)

(i) It appears that this Honour’s core finding was based on acceptance of the respondent’s expert’s first report on the accident.  However, there were a number of shortcomings with this report which the trial judge did not deal with, most notably the expert’s report was based on several matters which were either not proved or not supported by the evidence.

(ii) Since the respondent’s expert was not called to give oral evidence, there is no principle which provides protection for his Honour’s acceptance of his reconstruction of the accident.  Accordingly, the trial judge erred in his acceptance of the respondent’s expert report: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.

(iii) His Honour’s acceptance of the evidence of the respondent and Murdoch could not stand given its inconsistency with facts incontrovertibly established by the evidence, and in particular, the evidence of the police officer of skid marks on the appellant’s correct side of the road: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588.

(iv) There was nothing in the transcript to support the appeal ground based on bias.

Per Fitzgerald JA dissenting

(v) It is impermissible for…