POPA v JACKSON [1988] NSWCA 116

POPA v JACKSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and MCHUGH JJA 16 March 1988, 16 March 1988

[1988] NSWCA 116

Appeal — reasons for decision at first instance — absence of reasons sufficient to enable parties to know basis of decision- appeal allowed and new trial ordered. ORDERS (1) Appeal upheld; (2) Cross appeal struck out; (3) Judgment below set aside; (4) New trial ordered limited to damages; (5) Costs of the first trial to be costs in new trial; (6) Respondent to pay costs of the appeal and to have a certificate under the Suitors Fund Act in respect of those costs.

Priestley JA Regrettably the reasons for the judgment from which this appeal is brought are completely unsatisfactory. In a case heard before his Honour Godfrey-Smith DCJ brought by a plaintiff who had been injured in a car accident and in which the defendant had admitted liability, a number of issues important to the decision of the case arose. Because in my opinion the only way that this appeal can end is in an order for a new trial, I will not do more than speak in general terms of what happened in regard to these issues.

One issue was that of the credibility of the plaintiff. To take one example in regard to which that issue arose, the plaintiff was questioned by her own counsel in examination in chief about her driving of a motor car. Her answers, judging by the transcript, were very wary and evasive, even to her own counsel. The impression she gave in her evidence in chief was that she tried to drive but found it so painful that she did very little driving.

When cross-examined on this topic her wariness and evasiveness, again judging by the transcript, became greater than they had been in answer to her own counsel. She eventually did give some evidence indicating that she drove a car more extensively than she had admitted previously in her evidence. Film which was shown to the Court showed her driving a car, apparently quite freely, on a number of occasions.