DI PIETRO v HAMILTON [1990] NSWCA 53

DI PIETRO v HAMILTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, CLARKE and HANDLEY JJ 5 and 6, 6 September 1990

[1990] NSWCA 53

APPEAL — fact finding — trial judge accepts truth of evidence of defendant concerning happening of injury to plaintiff — challenge to finding — held: The decision as expressed was on the evidence called at the trial immune from disturbance by an appellate court — Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Jones v Hyde (1989) 63 ALJR 349; Powell and Wife v Streatham Manor Nursing Home [1935] AC 243, 267 applied. PRACTICE and PROCEDURE — District Court — judgment for defendant — trial judge hears and determines damages claim at further hearing contingently on reversal on appeal of decision on liability — held: (per Handley JA; Kirby P concurring) The expense and trouble of a further hearing was not warranted in the circumstances — where a further hearing has taken place for the determination of issues of damage after judgment on liability has been entered against the plaintiff there is no obligation on the part of the primary judge to determine the issue of damages. DISTRICT COURT — practice — judgment for defendant in personal injuries case — limits on obligation of primary judge to determine damages contingently on reversal of the decision on liability on appeal.

Kirby P Vincenzo Di Pietro (the appellant) was injured on 8 July 1982 at about 11.45 am. He claimed that his injuries arose out of the negligent driving of a motor vehicle JJG 618 by Laura Hamilton, the first respondent. He alleged that she had so negligently driven the motor vehicle that it caused a pedestrian with whom the appellant was walking in Crystal Street, Petersham to collide with him. The fellow pedestrian was Mr Fernado Horcada (the second respondent). On the appellant's case the collision with the second respondent caused him to fall over and injure himself.