Nankivell v Insurance Commission of Western Australia

[2017] WASCA 143

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Motor vehicle accident
4. › Claim against nominal defendant for injuries caused by unidentified driver
5. › Whether plaintiff discharged burden of proving negligence of unidentified driver
6. › Whether prior inconsistent statements justified rejection of plaintiff's trial evidence
1. Appeal
2. › Appeal from findings of fact
3. › Standard of appellate review
4. › Whether trial judge's findings demonstrated to be wrong
5. › Advantage of trial judge in seeing and hearing witnesses
6. › Whether findings glaringly improbable or contrary to compelling inferences
1. Evidence
2. › Credibility
3. › Prior inconsistent statements
4. › Weight to be given to prior accounts inconsistent with trial evidence
5. › Whether failure to mention key facts in contemporaneous accounts justified adverse credibility finding
1. Practice and Procedure
2. › Rule in [name withheld] v [name withheld]
3. › Whether propositions must be put to witness in cross-examination
4. › Exception where matter clearly in issue on the pleadings
5. › Flexibility in application of the rule

Quick Take

A trial judge's rejection of a plaintiff's evidence based on material inconsistencies between trial testimony and contemporaneous post-accident accounts is a finding of fact that an appellate court will not disturb unless demonstrated to be wrong by incontrovertible facts, uncontested testimony, or because the findings are glaringly improbable or contrary to compelling inferences. The rule in [name withheld] v [name withheld] does not require that alternative causes of an accident be put to a plaintiff witness in cross-examination where those causes are squarely raised in the pleadings.