Hering v Martin & Anor

[2004] QCA 70

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Interference with judge's findings of fact
4. › Functions of appellate court
5. › Where findings based on credibility of witnesses
6. › Whether trial judge's conclusion glaringly improbable or inconsistent with incontrovertible facts
1. Appeal
2. › General principles
3. › Interference with judge's findings of fact
4. › Where trial judge unable to determine which party's case more probable
5. › Failure to discharge onus of proof
1. Tort
2. › Negligence
3. › Motor vehicle accident
4. › Onus of proof
5. › Where no independent witnesses
6. › Where expert evidence equivocal

Quick Take

Expert evidence based on photographs acknowledged to be potentially misleading does not constitute 'incontrovertible facts' capable of displacing a trial judge's credibility-based findings. A trial judge's conclusion that neither party's version is more probable, resulting in the plaintiff failing to discharge the onus of proof, will not be disturbed on appeal unless glaringly improbable or inconsistent with incontrovertibly established facts.