SREDOJEVIC v DIMIC [1991] NSWCA 256

SREDOJEVIC v DIMIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA MEAGHER JA HANDLEY JA 4 October 1991, 4 October 1991

[1991] NSWCA 256

APPEAL AND NEW TRIAL — Positive finding by trial judge in favour of defendant based on credibility — Whether plaintiff on appeal established error by trial judge in reaching this conclusion.

EVIDENCE — Available witness not called to corroborate defendant's evidence — Operation of Jones v Dunkel principle.

held. A Court of Appeal will not interfere to order a new trial on the basis of minor errors of fact not going to the substance of the judge's finding on credibility. Failure by a party to call corroborating witnesses does not require a tribunal of fact to reject the uncorroborated evidence. Appeal dismissed with costs. Dearman v Dearman (1908) CLR 549 Jones v Dunkel (1959) 101 CLR 298

Handley JA This is an appeal by the plaintiff from a judgment for the defendant entered by Gallen DCJ in a motor vehicle case.

The essential facts are that the appellant was crossing Johnston Street, Annandale on Sunday morning, 5 February 1984, when, as he alleges, he was struck on his right side and knocked to the ground by a car driven by the defendant which was reversing northwards in Johnston Street away from Parramatta Road. The appellant at the time said he was looking to the left and did not see the respondent's vehicle until he was hit. He fell first onto the boot and then onto the road. According to the appellant, the respondent and her husband both got out of the car and lifted him out of the gutter where he was lying and assisted him to sit on the footpath and later the respondent's husband helped him walk to his home, which was some two hundred metres away.

The respondent's version of the events was somewhat different but there was much common ground. She said that she was reversing her car in Johnston Street close to the eastern kerb at a very slow speed, according to her, maybe five kilometres an hour. She had looked to the rear and then reversed for just one or two metres. She said "Then I heard first something bang, something was bump". She stopped the car and the appellant said her "You hit me". She recognised the appellant, as both were of Yugoslav origin and had formerly lived in the same street. However, according to the respondent, after the bump the appellant was still standing near the back of the car and had not been knocked to the ground. She got out of the car and had a short conversation with him and then drove off. According to her, the appellant walked home without any assistance from her husband. The husband was not called as a witness. The appellant alleged that he sustained significant injuries as a result of this accident.