Srecko Biscan v Kryst Lewinski and Douglas Willans No. Scgrg-88-1908, Scgrg-88-1909 Judgment No. 3498 Number of Pages 6 Appeal - [1997] SASC 3498

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, MATHESON AND OLSSON JJ

Appeal - functions of appellate court - findings of credibility of plaintiff - Conflict of evidence - Whether trial judge's decision should be disturbed SS Hontestoom (Owners) V SS Sagaporack (Owners) [1927] AC 37; Brunskill V Sovereign Mayne And General Insurance Co Ltd (1985) 59 ALJR 842, applied.

ADELAIDE, 9 March 1992 (hearing), 3 July 1992 (decision)

#DATE 3:7:1997

#ADD 4:9:1997

Appearances :

Counsel for appellant: Mr T Anderson, QC with Ms A Faulkner

Solicitors for appellant: Johnston Withers

Counsel for respondent: Mr S Walsh, QC

Solicitors for respondent: Finlaysons

Order: appeal dismissed.

DEBELLE J

The appellant was involved in two separate motor vehicle accidents. He instituted two actions claiming damages for injuries alleged to have been suffered in respect of each accident. Liability was admitted by the defendant in each action. By consent the two actions were heard together. The defendants, the respondents in this appeal, agreed also that there was no need to apportion damages between them so that one judgment for the damages as assessed might be given against both. There is one judgment and one appeal from that judgment.

The first accident occurred on 12 December 1985. On that evening the appellant had gone with some friends to the Istrian Club on Grand Junction Road during the evening. At about 1.00 a.m. he left the club and went to his car. He sat in the driver's seat. While his car was still stationary, it was struck forcibly from behind. The force of the impact caused the plaintiff to be thrown about inside the car. As a result of the injuries he sustained, he was off work for some time.

On 9 July 1986 the appellant returned to work on light duties as a courier delivering letters. On 14 November 1986 he was sitting in his vehicle in a stationary position when a heavy truck stopped a few feet behind his vehicle. Both vehicles were on a slight downhill gradient. The respondent in that action failed properly to apply his brakes and his vehicle rolled forward . few feet and bumped the rear Of the appellant's vehicle. Although the respondent's vehicle was a heavy one, its speed and impact was no more than one or two kilometres per hour and the impact was; slight. The trial judge found that the impact was not such an impact that in normal any injury or discomfort circumstances would cause appellant. to a person in the position of the appellant.

There was a dispute as to the extent to which the injuries received by the appellant had incapacitated him. On the night of the first accident the appellant was taken, to the Queen Elizabeth Hospital. He complained of a sore neck which was worse on movement. He had no other injuries. X-rays were taken of his cervical and thoracic spine. He consulted a general practitioner, Dr Rositano, who, in his evidence, said that…

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: Srecko Biscan v Kryst Lewinski and Douglas Willans No. Scgrg-88-1908, Scgrg-88-1909 Judgment No. 3498 Number of Pages 6 Appeal [1997] SASC 3498
Case: [1997] SASC 3498
Decision Date: 3 July 1997

CaseChat Overview and Summary

The case involves an appeal by Srecko Biscan against the judgment of the trial judge in two consolidated actions for damages for personal injuries arising from two separate motor vehicle accidents. The respondents, Kryst Lewinski and Douglas Willans, admitted liability in both actions. The trial judge found that the appellant had exaggerated his symptoms and had misled the doctors who examined and treated him. The trial judge concluded that the appellant had played soccer in 1986 and 1987, contrary to his denial, and awarded damages of $43,855.32. The appellant appealed against the assessment of damages on the ground that it was manifestly inadequate. The primary legal issue was whether the trial judge's findings on the credibility of the appellant's evidence were correct. The Full Court held that the trial judge's findings on the credibility of the appellant's evidence were correct and dismissed the appeal. The Full Court noted that the trial judge had the benefit of seeing the appellant give his evidence and forming an impression as to his truthfulness. The inferences drawn by the learned trial judge were fairly open on the documents. The appellant did not deny that he had been registered as a player in 1986 and in 1987. He disputed only that he had played soccer in those years. The entries in the year books concerning a person named "S. Biscan" under the name of the club in the grade in which it was alleged the appellant played coupled with the admitted fact of registration were, in the absence of any evidence to the contrary, compelling evidence from which the trial judge could infer that the appellant had played soccer in those years. The Full Court also held that the soccer documents had been admitted without objection and that the appellant was represented at the trial by experienced counsel. Ordinarily speaking, a party to an appeal is bound by the way he has conducted his case in the court below and, on the hearing of an appeal, is precluded from seeking to rely on a point of law not taken in the Court below. There is nothing in this case which justifies a departure from that rule. The Full Court dismissed the appeal. The respondents also cross-appealed but the cross-appeal was dismissed by consent during the hearing.

Orders