Ross v Vaughan

In the Supreme Court of New South Wales, the appeal concerned a motor vehicle accident between the appellant, Daniel Mark Ross, and the respondent, Mark Anthony Vaughan. The primary judge in the District Court had accepted the respondent's version of events, finding that the appellant's vehicle was on the wrong side of the road at the time of the collision. This finding led to judgment being entered for the respondent.

The appeal raised questions regarding the function of an appellate court in reviewing findings of fact made by a primary judge, particularly when those findings were not solely based on an assessment of witness credit. The court was required to determine whether the primary judge had erred in their factual findings concerning the position of the vehicles and the circumstances of the collision, and whether the evidence, including skid marks, debris, and the final resting positions of the vehicles, supported the conclusion that the respondent's vehicle was on the wrong side of the road.

The Court of Appeal, applying the principles of a rehearing under s 75A of the *Supreme Court Act 1970* (NSW) and considering the limitations on appellate intervention in factual findings as discussed in *Fox v Percy*, found that the primary judge had erred. The appellate court concluded, based on its own assessment of the evidence, that it was more probable than not that the respondent's vehicle was on the wrong side of the road.

Consequently, the appeal was allowed. The verdict and judgment for the respondent in the first set of proceedings were set aside, and judgment was entered for the appellant, with the proceedings remitted to the District Court for an assessment of damages. In the second set of proceedings, the verdict for the plaintiff (the respondent in the appeal) on liability was set aside, and judgment was entered for the defendant (the appellant in the appeal). The respondent was ordered to pay the costs of the appeal and the District Court proceedings in both matters.