Smith v McFarland

[2013] NSWCA 378

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v McFarland [2013] NSWCA 378

Hearing dates:

23 August 2013

Decision date:

14 November 2013

Before:

McColl JA at [1];
Meagher JA at [2];
Ward JA at [31]

Decision:

Appeal dismissed with costs.

[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:

TORTS - negligence - motor vehicle accident - collision between motor vehicle and cyclist - whether primary judge erred in concluding that there was insufficient evidence to find driver negligent - no question of principle

Cases Cited:

Water Board v Moustakas [1988] HCA 12; 180 CLR 491

Category:

Principal judgment

Parties:

Oliver Thomas Smith by his tutor Cathryn Coles (Appellant)
Graham McFarland (Respondent)

Representation:

Counsel:
Dr A S Morrison SC, J Gumbert (Appellant)
M Joseph SC, R O'Keefe (Respondent)
Solicitors:
Stacks Goudkamp (Appellant)
Curwoods (Respondent)

File Number(s):

2012/361128

 Decision under appeal 

Jurisdiction:

9111

Citation:

Smith by his tutor Coles v McFarland
[2012] NSWSC 945

Date of Decision:

2012-08-20 00:00:00

Before:

Simpson J

File Number(s):

2010/356970

Judgment

1. McCOLL JA: I agree with Meagher JA.

1. MEAGHER JA: On 3 December 2008 the appellant suffered a significant traumatic brain injury when he collided with a car whilst riding to school. He was thrown from his bicycle and his helmet unfastened and flew from his head, which then struck the road surface. That accident occurred on George Street, North Strathfield. The question whether the respondent, as driver of the motor vehicle, was liable in negligence was tried before the primary judge (Simpson J). The answer to that question, as will become apparent, depended upon whether the primary judge accepted that the collision occurred as described by Ms Kaddour, one of two independent witnesses who gave evidence.

1. The primary judge did not accept Ms Kaddour's version of events and entered a verdict for the respondent: Smith by his tutor Coles v McFarland [2012] NSWSC 945. Her Honour's decision not to accept that evidence was not based upon any assessment of Ms Kaddour's demeanour. The primary judge recorded at [28]:

"I saw no reason to form a view that she was deliberately fabricating her evidence, or a view otherwise adverse to her credibility. However, I am satisfied that her account is so inherently unlikely as to be quite implausible. That is based upon objective analysis of her account."

1. The appellant appeals from that decision. It is argued on his behalf that the primary judge erred in not accepting Ms Kaddour's evidence. It is also argued in the alternative that the primary judge erred in not concluding that there was other evidence on which a finding of negligence could…