Rayment v James

[1999] NSWCA 101

CITATION:	Rayment v James [1999] NSWCA 101
FILE NUMBER(S):	CA 40811/97
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	21 April 1999
PARTIES :	Allan John RAYMENT v Michael JAMES
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Fitzgerald JA at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 42/87
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ

COUNSEL:	J.L. Glisson QC/D.S. Wilkins (Appellant) H. Di Suvero (Respondent)
SOLICITORS:	Barry F. Cosier & Associates (Appellant) Holman Webb (Respondent)
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - who was the driver of the vehicle? - unsigned statement made to police by respondent admitting that he was the driver - prior inconsistent statement made by witness - evidence of rescuers - evidence corroborative of the appellant's - weight to be attached to evidence - inferences to be drawn from the evidence
ACTS CITED:	n/a
CASES CITED:	SRA (NSW) v Earthline Constructions Pty. Ltd (1999) 73 ALJR 306 Warren v Coombes (1978 - 1979) 142 CLR 531
DECISION:	Appeal Allowed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40811/97
DC 42/87





SHELLER JA
STEIN JA
FITZGERALD JA

Wednesday, 21 April 1999


Allan John RAYMENT v Michael JAMES

On 27 August 1983 the appellant/plaintiff and the respondent/defendant were travelling in a motor vehicle when it careered off the road and struck a telegraph pole. Several facts were undisputed. The appellant and respondent had been drinking together for many hours prior to the accident. Whilst the two were drinking at a hotel the respondent’s estranged wife and his defacto arrived. An argument then ensued between the respondent and his defacto. This led the group to leave the hotel, moving across the road to a small park. There the respondent and his defacto continued to argue. The respondent’s defacto seized his keys and the two then struck each other.

The appellant contended that the two women then left the park heading towards the police station to obtain help. The respondent then followed the women in the subject vehicle with the appellant as passenger. Later that evening, whilst travelling along Mudgee Road, Wallerawang, the appellant and respondent were involved in the car accident. Two individuals witnessed the accident some 200 m away and hurried to the scene. Both observed that the appellant was leaning against the passenger side door of the vehicle and that the unconscious respondent was lying across him.

In a unsigned statement made to the police on 14 November 1983, the respondent admitted that he was the driver of the vehicle. Further, in proceedings before the Magistrates Court on 30 October 1984, the respondent’s estranged wife, Pamela James, gave evidence that it was the respondent who was driving the vehicle. However, during District Court proceedings on 4 - 5 November 1997 she claimed it was the appellant who was driving the vehicle at the time of the accident. The respondent’s defacto, Annette Hart, also gave evidence in the District Court that it was the appellant who had obtained the car…