Rider v Christou and Trimithia Enterprises Pty Ltd

[1994] QCA 182

IN THE COURT OF APPEAL	[1994] QCA 182
SUPREME COURT OF QUEENSLAND

Appeal No. 154 of 1993

Brisbane

[Rider v. Christou]

BETWEEN:

MARGUERITE ROSE RIDER

(Plaintiff)	Appellant
-and-

PETER CHRISTOU

(First Defendant)	Respondent
-and-

TRIMITHIA ENTERPRISES PTY LTD

(Second Defendant) Respondent

The Chief Justice Mr Justice Davies Mr Justice Thomas

Judgment delivered 06/06/1994

JOINT REASONS FOR JUDGMENT DELIVERED BY THE CHIEF JUSTICE AND MR JUSTICE DAVIES. MR JUSTICE THOMAS DELIVERING SEPARATE DISSENTING REASONS.

APPEAL ALLOWED. Orders made below set aside. In lieu, judgment should be entered for the plaintiff against the defendants for $228,775.64 with costs of the appeal and costs of the trial including reserved costs, if any, to be taxed. Liberty to the parties to apply reserved in respect of the form of the order with submissions, if any, in respect of it to be lodged with the Court in writing within seven days.

Appeal No. 154 of 1993

CATCHWORDS:	NEGLIGENCE - Motor vehicle accident - acceptance by trial judge of conflicting evidence - Appellate Court's function - whether trial judge misused advantage in assessing witnesses - interference by appellate court with findings of fact and credibility - whether new trial should be ordered or judgment entered.
Counsel:	Mr R. Hanson Q.C. with him Mr R. Myers for the appellant. Ms M. Wilson Q.C. with her Mr A. Innes for the respondents.
Solicitors:	Clayton Utz for the appellant Dillons for the respondents.
Hearing Date:	21/02/94

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 154 of 1993

Brisbane

Before The Chief Justice

Mr Justice Davies

Mr Justice Thomas

[Rider v. Christou]

BETWEEN:

MARGUERITE ROSE RIDER

(Plaintiff)	Appellant
-and-

PETER CHRISTOU

(First Defendant)	Respondent
-and-

TRIMITHIA ENTERPRISES PTY LTD

(Second Defendant) Respondent

The first defendant, who has also been accepted by the trial judge as a credible and

REASONS FOR JUDGMENT - THE CHIEF JUSTICE and MR JUSTICE DAVIES

Judgment delivered 06/06/1994

We agree with the reasons expressed by Thomas J. for concluding that the judgment entered below should be set aside but we have arrived at a different conclusion as to the orders which should be made by this court in consequence.

Since error justifying interference has been demonstrated, this court on appeal has a full formal power to act to correct it and this includes power to enter the judgment which should have been entered below: see Order 70, rule 11. The question is how the court should proceed in the very particular circumstances of this case.

In other cases if it should happen that fundamentally opposed versions are accepted by a trial judge or that a judge has not derived a relevant advantage from seeing and hearing witnesses, it may be appropriate to make an order for retrial. However, an appeal court is justified in adopting a particular and undoubtedly less usual approach when it is presented with a problem which calls for a special solution: c.f. Chambers v. Jobling (1986) 7 N.S.W.L.R. 1, and Whitehouse v. Jorda