Suvaal v Cessnock City Council [2003] HCA 41

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, CALLINAN AND HEYDON JJ

ANTHONY PETER SUVAAL APPELLANT

AND

CESSNOCK CITY COUNCIL RESPONDENT

Suvaal v Cessnock City Council

[2003] HCA 41

6 August 2003

S384/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

G O'L Reynolds SC with D R Conti for the appellant (instructed by McClellands)

D F Jackson QC with D T Miller for the respondent (instructed by Moray & Agnew)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Suvaal v Cessnock City Council

Negligence – Causation – Appellant suffered injury in bicycle accident – Factual finding that appellant was injured as result of bicycle coming into contact with potholes following loss of concentration – Version of events not advanced by either party – Whether sufficient evidence for trier of fact to make that finding – Whether trier of fact can decline to accept the versions of events advanced by the parties – Whether trier of fact can adopt a version of events not advanced or tested by either party – Whether rejecting a plaintiff's version of events amounts to a finding of credibility – Whether trier of fact entitled to consider alternative case, in drawing inferences and reaching conclusions, where alternative case open on the pleadings and evidence – Whether consideration of alternative case amounts in the circumstances to procedural unfairness.

Appeal – Powers of appellate court – Restrictions on disturbance of findings and conclusions of trier of fact dependent on impressions of the credibility of witnesses and consideration of the entirety of the evidence – Whether entitled to intervene in conclusion reached by trier of fact contrary to evidence of plaintiff – Whether trier of fact precluded from reaching her own conclusion as to probable facts different from that asserted by plaintiff based on other evidence – Relevant appellate principles.