THE NOMINAL DEFENDANT v HENRY [1994] NSWCA 237

THE NOMINAL DEFENDANT v HENRY [1994] NSWCA 237

The findings of the trial judge regarding the respondent's credibility were open on the evidence and not perverse or inconsistent with incontrovertible facts. The trial judge was entitled to accept that due search and inquiry was satisfied, and contributory negligence was appropriately assessed. Appeal dismissed.

Source-derived case information.

Parties
Appellant: The Nominal Defendant; Respondent: Henry
Jurisdiction
Australia
Judgment Date
26 August 1994
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Third Party Insurance, Unidentified Motor Vehicles, Due Search and Inquiry, Assessment of Witness Credibility, Contributory Negligence
Tort Law Insurance Law Third Party Insurance Unidentified Motor Vehicles Due Search and Inquiry Assessment of Witness Credibility Contributory Negligence

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Parties

The Nominal Defendant

Appellant

Henry

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the trial judge erred in accepting the respondent's account of the accident as credible
  2. 2 Whether due search and inquiry was established for the purposes of third party insurance concerning an unidentified vehicle
  3. 3 Whether contributory negligence was appropriately assessed

Ratio Decidendi

The findings of the trial judge regarding the respondent's credibility were open on the evidence and not perverse or inconsistent with incontrovertible facts. The trial judge was entitled to accept that due search and inquiry was satisfied, and contributory negligence was appropriately assessed. Appeal dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Costs on an indemnity basis from 17 September 1992 subject to the Appellant having leave within seven days to apply to vacate the costs order.