Appellant: K Rewell/M Cleary Respondent: J D Hislop QC/B G Smith
SOLICITORS:
Appellant: Dennis & Company Respondent: Curwood & Partners
CATCHWORDS:
PERSONAL INJURY - motor vehicle accident - appellant/plaintiff riding bicycle - recovered judgment for damages at $5,210.20 - appeal as to assessment of damages and costs - EVIDENCE - credibility and weight - issue as to whether appellant/plaintiff exaggerated symptoms - appellant/plaintiff testimony found unsatisfactory and without credit - inconsistencies in evidence - effect of appellant's lack of credibility on evidence of other witnesses - COSTS - depriving a successful party of costs - exercise of discretion to order successful party to pay unsuccessful party's costs - Pt 39A r 12 District Court Rules - whether appellant/plaintiff's action amounted to misconduct - offer of compromise by respondent/defendant less than judgment - Pt 39A r 25(6) District Court Rules - discussion of jurisdiction and discretion to award costs against a successful party. D
Appeal in respect of the verdict in the sum of $5,210.20 is dismissed; The appeal in respect of the costs order is upheld and the order made by the trial judge in regard to costs is set aside; The respondent pay the appellant's costs of the first day of the trial, to be taxed, those costs not to include any item relating to the specialist medical practitioners whose reports were tendered in evidence; The appellant pay the respondent's costs in respect of the rest of the trial; The appellant…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Arian v Nguyen [2001] NSWCA 5
Case
[2001] NSWCA 5
Decision Date
CaseChat Overview and Summary
The appeal concerned a motor vehicle accident in which the appellant, riding a bicycle, suffered injuries. The appellant had recovered judgment for damages in the amount of $5,210.20, but appealed this assessment and the subsequent costs order. The primary issue before the court was whether the appellant had exaggerated their symptoms, leading to a finding that the appellant's testimony was unsatisfactory and lacked credibility due to inconsistencies.
The court was required to determine the impact of the appellant's lack of credibility on the assessment of damages and the subsequent order regarding costs. Specifically, the court considered whether the appellant's conduct warranted depriving them of costs, or even ordering them to pay the respondent's costs, under relevant District Court Rules concerning offers of compromise and the court's discretion to award costs against a successful party.
The court found that the appellant's lack of credibility significantly undermined their claim for damages, leading to the dismissal of the appeal regarding the quantum of damages. However, the appeal concerning the costs order was upheld. The trial judge's costs order was set aside, and a new order was made: the respondent was to pay the appellant's costs for the first day of the trial, excluding costs related to specialist medical reports. Conversely, the appellant was ordered to pay the respondent's costs for the remainder of the trial and 75 per cent of the respondent's costs for the appeal.
Orders
Orders of the court
Appeal in respect of the verdict in the sum of $5,210.20 is dismissed; The appeal in respect of the costs order is upheld and the order made by the trial judge in regard to costs is set aside; The respondent pay the appellant's costs of the first day of the trial, to be taxed, those costs not to include any item relating to the specialist medical practitioners whose reports were tendered in evidence; The appellant pay the respondent's costs in respect of the rest of the trial; The appellant pay 75 per cent of the respondent's costs of the appeal, to be taxed.