Bond v Cerruto

[2003] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

Bond v Cerruto & Ors [2003] QCA 219

PARTIES:

LEESA MAREE BOND
(plaintiff/appellant)
v
JOHN MICHAEL CERRUTO
(first defendant)
ARTHUR JOSEPH PALK
(second defendant/first respondent)
COLES MYER LTD
(third defendant/second respondent)
NOMINAL DEFENDANT (QUEENSLAND)
(defendant by election/third respondent)
STATE OF QUEENSLAND
(fifth defendant)
THE COUNCIL OF THE SHIRE OF PINE RIVERS
(fourth defendant)
FAI GENERAL INSURANCE COMPANY LIMITED
ACN 000 327 855
(defendant by election)

FILE NO/S:

Appeal No 3631 of 2002
SC No 8760 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2003

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – STATEMENT OF REASONS FOR DECISION – where appellant complains that learned trial judge’s judgment was fatally flawed due to the failure to give sufficient reasons – where judgment did not make reference to credibility of first respondent or appellant’s witnesses – where respondent conceded that if it was found that the appellant could not understand from the learned trial judge’s reasons why she had not succeeded appellate court intervention may be appropriate – whether learned trial judge failed to express sufficient reasons for judgment

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – EVIDENCE – ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE – where appellant gave inconsistent account of incident in workers’ compensation claim forms to the account she gave in evidence – where appellant failed to explain why she gave critically different accounts – where onus of proof on appellant – whether appellant’s evidence failed to persuade on the balance of probabilities

Evidence Act 1977 (Qld), s 79, s101

Beale v Government Insurance Officer of New South Wales(NSW) (1997) 48 NSWLR 430, cited
Cochrane v Hannaford [1999] NSWCA 371, referred to

COUNSEL:

R Trotter for the appellant
G Mullins for the respondents

SOLICITORS:

Richardson McGhie for the appellant
McInnes Wilson for the respondents

1. McPHERSON JA:  The question that arose on the trial of this action for damages arising out of a motor vehicle collision on the highway turned on findings with respect to credibility and fact. The learned trial judge, for reasons which he gave, did not accept the plaintiff’s account of the incident as pleaded and given in evidence at the trial. There were prior written statements from her which were inconsistent with her testimony. His Honour was entitled to reject her evidence, and to do so despite some other contemporaneous accounts given to relatives or friends that coincided with that testimony.

1. The result was that the plaintiff’s case at trial failed to come up to proof.  She carried the onus, and the judge was entitled, if not bound, to dismiss her claim without having to scrutinise the defendant’s…