The WA Supreme Court, Court of Appeal recently found against the appellant, Mr Nankivell, in Nankivell v Insurance Commission of Western Australia  WASCA 143.
At around 2pm on 22 July 2011, Mr Nankivell was driving a prime mover southbound on Kwinana Freeway when he was involved in an accident. He claims the unidentified driver of a small car cut in front of him without indicating and then braked suddenly. He said this forced him to take evasive action and in doing so he lost control of the prime mover and suffered a number of soft tissue injuries. He also said the driver of the small car did not stop.
The Respondent’s position was that the accident was attributable to Mr Nankivell’s negligence in either failing to keep a proper lookout or travelling too close to the vehicle in front.
In the first instance, DCJ Fenbury was not convinced the driver of the small car had cut in front of Mr Nankivell, but instead found that Mr Nankivell had been following directly behind the small car for some time before the accident.
There was no mention of the small car switching lanes in Mr Nankivell Workers’ Compensation Form, Employer’s Report of Injury form, WorkCover WA Workers’ Compensation First Medical Certificate, or the Fremantle Hospital Department of Emergency Medicine notes.
Further, an undated Crash Report Form completed about three weeks after the accident and sent to the respondent suggested the small car had passed Mr Nankivell earlier, moved into the same lane and stayed there for a couple of minutes before braking.
There were also inconsistencies between Mr Nankivell’s written statement provided 18 months after the accident and his evidence in chief.
Mr Nankivell’s claim was dismissed as His Honour found he had failed to prove that the unidentified driver of the small car caused the accident.
Supreme Court Appeal
Mr Nankivell appealed the decision of DCJ Fenbury, his Appeal papers contended His Honour erred in:
- law in finding the likely causes of the accident;
- law in finding there were ‘significant differences’ or ‘variation’ between Mr Nankivell descriptions of the accident prior to and after January 2013; and
- fact in concluding that “if the accident occurred as [the appellant] says it did in his evidence, then it is inconceivable he would not have made mention of that in the documentation immediately post-accident” when that conclusion could not reasonably be drawn from the evidence.
The Court of Appeal stated that as the appellant, Mr Nankivell carried the burden of persuading the trial judge on the balance of probabilities that, as a result of the negligence of the unidentified driver of a small car, he was forced suddenly to take evasive action and, in the course of taking that action, he lost control of the prime mover and it rolled over.
And further that – it is insufficient for an appellant who challenges a trial judge’s findings of fact merely to demonstrate that an alternative finding was available on the evidence. Mr Nankivell must demonstrate that the trial judge made an error of fact.
Based on the above the Court of Appeal was not convinced that any of the grounds of appeal had been made out and concluded DCJ Fenbury’s reasoning and decision was correct.
The appeal was dismissed.
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