Suvaal v Cessnock City Council

Negligence – Causation - Appellant suffered injury in bicycle accident - Factual finding that appellant was injured as result of bicycle coming into contact with potholes following loss of concentration - Version of events not advanced by either party - Whether sufficient evidence for trier of fact to make that finding - Whether trier of fact can decline to accept the versions of events advanced by the parties - Whether trier of fact can adopt a version of events not advanced or tested by either party - Whether rejecting a plaintiff's version of events amounts to a finding of credibility - Whether trier of fact entitled to consider alternative case, in drawing inferences and reaching conclusions, where alternative case open on the pleadings and evidence - Whether consideration of alternative case amounts in the circumstances to procedural unfairness.

Appeal – Powers of appellate court - Restrictions on disturbance of findings and conclusions of trier of fact dependent on impressions of the credibility of witnesses and consideration of the entirety of the evidence - Whether entitled to intervene in conclusion reached by trier of fact contrary to evidence of plaintiff - Whether trier of fact precluded from reaching her own conclusion as to probable facts different from that asserted by plaintiff based on other evidence - Relevant appellate principles.

Supreme Court Act 1970 (NSW) – s 75A.