Warry v PB Pty Ltd

[1999] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

Warry v P B P/L [1999] QCA 154

PARTIES:

IAN DOUGLAS WARRY
(Plaintiff/Appellant)

v

P B PTY LTD  ACN 009 976 836
(Defendant/Respondent)

FILE NO/S:

Appeal No 6298 of 1998
DC No 1284 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against action for damages for personal injuries

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 December 1999

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 1999

JUDGES:

Davies and Pincus JJA and Atkinson J

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – ADMISSIBILITY OF EVIDENCE

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER MATTERS

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT INVOLVING MISCARRIAGE – WHERE NEW TRIAL WOULD LEAD TO SAME RESULT

Appeal against judgment dismissing action for damages for personal injuries – appellant leased premises from respondent – alleged fell down stairs due to lack of handrail – conflicting evidence of employees that injury occurred in the course of a water fight and not due to lack of handrail – judge below rejected appellant's account – judge below admitted evidence of appellant's prior conviction – whether evidence of conviction admissible – s 252 Corrective Services Act 1988 – whether evidence of charge admissible – s 5(3) Criminal Law (Rehabilitation of Offenders) Act 1986 – whether relevant to witness' credit – other evidence to justify judge's conclusion that appellant was an unreliable witness – whether appellant entitled to a new trial

Corrective Services Act 1988, s 252
Criminal Law (Rehabilitation of Offenders) Act 1986, s 5
Kabadanis v Panagiotou (1980) 47 FLR 221, applied
Vocisano v Vocisano (1974) 130 CLR 267, applied

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE

Appellant sought to adduce fresh evidence – whether could have been obtained with reasonable diligence for use at the trial – whether would probably have had an important influence on the result of the trial – whether credible

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404, applied
Langdale v Danby [1982] 1 WLR 1123, applied

COUNSEL:

Appellant appeared on his own behalf
Mr J B Rolls for the respondent

SOLICITORS:

Appellant appeared on his own behalf
Bennett & Philp for the respondent

1. THE COURT:  This is an appeal against a judgment given in the District Court on 12 June 1998 dismissing an action for damages for personal injuries alleged to have been caused by the negligence of the defendant respondent.  It was accepted by the learned trial judge, who otherwise rejected the appellant's version of events, that on 6 December 1993 the appellant fell down some concrete steps inside the front door of a warehouse.  It is also common ground that the warehouse was owned by the respondent and the appellant had…