SMITH v WHITTINGTON [1993] NSWCA 248

SMITH v WHITTINGTON [1993] NSWCA 248

The trial judge made irreconcilable findings of fact: both that the orthodox method was used (favouring defendants) and that the plaintiff's leg was entangled by the rope (favouring plaintiff). Both derive from credibility findings this court cannot resolve. Accordingly, the judgment cannot stand and a new trial is necessary.

Parties
Plaintiff: N Smith; Defendant: T Whittington; Defendant: Sheryl Whittington; Defendant: Peter Frey
Jurisdiction
Australia
Judgment Date
18 February 1993
Procedural Posture
Appeal / Judgment on Appeal, Setting Aside Trial Judgment and Ordering New Trial
Outcome
Judgment set aside; new trial ordered
Legal Topics
Negligence, Water Skiing Accident, Findings of Fact, Inconsistent Evidence, Standard of Care
Torts Personal Injury Negligence Water Skiing Accident Findings of Fact Inconsistent Evidence Standard of Care

Case Brief

Summary, issues, holding and outcome

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Parties

N Smith

Plaintiff

T Whittington

Defendant

Sheryl Whittington

Defendant

Peter Frey

Defendant

Procedural Posture

Appeal / Judgment on Appeal, Setting Aside Trial Judgment and Ordering New Trial

Legal Issues

  1. 1 Whether the defendants were negligent in failing to ensure the tow rope was taut and visible before commencing the water ski tow
  2. 2 Whether inconsistent findings of fact at trial vitiated the judgment

Ratio Decidendi

The trial judge made irreconcilable findings of fact: both that the orthodox method was used (favouring defendants) and that the plaintiff's leg was entangled by the rope (favouring plaintiff). Both derive from credibility findings this court cannot resolve. Accordingly, the judgment cannot stand and a new trial is necessary.

Court Disposition

Judgment set aside; new trial ordered

Orders

  • Judgment set aside
  • New trial to be had