BABIC v ESSO AUSTRALIA LTD [1993] NSWCA 16

BABIC v ESSO AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, CLARKE and SHELLER JJA 23 November 1993, 23 November 1993

[1993] NSWCA 16

Appeal — Trial Judge does not accept plaintiff's evidence — Decision based on credibility — Whether case one in which appellate court may interfere — No question of principle involved.

Powell JA This is an appeal from a judgment delivered, and orders made, by Newman J. on 30 May 1991, when His Honour dismissed, with costs, the proceedings which the Plaintiff ("Mr Babic'') had brought against his employer ("Esso"), seeking to recover damages in respect of an injury which he claimed to have suffered as a result of what was alleged to have been Esso's negligence.

At the time of his alleged injury in July 1984 Mr Babic - a native of Yugoslavia, who was born in 1941, and who had come to this country in 1968 - was, as he had for the better part of the previous ten years been, employed by Esso as a petrol tanker driver, his task being to deliver bulk petroleum products to service stations either owned, or supplied, by Esso.

It would seem that, at all material times, Mr Babic was employed on what was described as the night shift, which shift would appear to have commenced at about 5.30 in the afternoon of each day, and concluded at about 1.15 in the early morning of the following day.

It was Mr Babic's case that, on 31 July 1984, at about 6.00 pm, he arrived at a service Station in Earlwood where he was to deliver petrol. It is a measure of some of the confusion and inconsistencies which attended Mr Babic's case, first, that, in the original statement of claim which was filed, on his behalf, in October 1985, the service station in question was said to be located in Homer Street, Earlwood, while, in the amended and re-amended statements of claim filed, on his behalf, in 1990, the service station was said to be located at Wardell Road and Permanent Avenue, Earlwood, a distance of about one and a half kilometres away; and second, that, at a very early stage of his evidence in chief at the hearing (see Appeal Book p37), Mr Babic identified as a photograph of the service station, a photograph (see Appeal Book p50) which seems to depict neither service station, but, rather, depicts yet another service station situated at Mitchell Road, Alexandria.