ECHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1990] NSWCA 57

ECHEGARAY vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 11 October 1990, 14 December 1990 [1990] NSWCA 57

APPEAL — appellate court — entitlement to disturb findings based on credibility — limited circumstances — Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Chambers v Jobling (1986) 7 NSWLR 1 applied — error in rejecting claim of brain injury — injury established by CT scan — other compelling evidence substantially uncontradicted — held: Error by trial judge authorises Court of Appeal to set aside judgment — new trial ordered limited to damages. Jones v Hyde (1989) 63 ALJR 349, 351 and Abalos v Australian Postal Commission, unreported, High Court of Australia, 15 November 1990 referred to.

EVIDENCE — entitlement to reject complaints — suggestion not put expressly to witness — rule in Browne v Dunn (1893) 6 R 67; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 — held: No breach of duty of fairness — suggestion of exaggeration obvious from medical evidence.

ORDERS

1. Appeal allowed;

2. Judgment of his Honour Judge Staunton dated 1 February 1989, set aside. New trial ordered limited to damages;

3. Costs of the first trial to be costs in the new trial; and

4. The respondent to pay the costs of the appeal.

Kirby P I agree with Clarke JA.

Ihave given particular attention to the question whether this Court is prevented from giving effect to the conclusions to which I have come by virtue of the recent authority of the High Court of Australia in Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission, unreported, High Court of Australia, 15 November 1990. In each of those decisions McHugh J, writing for the Court, has reminded courts such as this of the great care which must be taken in disturbing the decision of a trial judge which depends on the subtle influences of impressions as to the credibility of witnesses giving evidence in the trial. This principle is to be observed by appellate courts, whether or not the trial judge has expressly referred to the impression of credibility.