KESKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 163

KESKI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 17 November 1994

[1994] NSWCA 163

Cole JA Acting Judge James heard this matter and another (Santo La Rosa v Government Insurance Office of New South Wales (GIO)) together on the 30th and 31st of August and 1st September 1989. Mr Keski had alleged that a vehicle being driven by Mr La Rosa collided with the rear of his vehicle pushing him sideways into a pole on his left hand kerb side. Mr La Rosa had contended that Mr Keski had changed lanes causing him to break and swerve to avoid a collision, causing him to collide with a third vehicle.

After lunch on the third day, the trial Judge heard submissions from counsel upon the credit of Mr Keski and Mr La Rosa. His Honour then remarked:

"It is conceded by Counsel for Keski there appears to be no objective corroboration in a material particular, except the prior consistent account, in so far as it is a consistent account given in the police report, the reference to the damage code and the damage code referable to the rear of the vehicle by an independent trained observer. Beyond that, Mr Smith (Counsel) concedes no independent corroboration of Mr Keski and also submits there is no independent corroboration of Mr La Rosa".!

The transcript then notes:

"For his Honour's judgment in the case of plaintiff Keski, see separate transcript".2 His Honour's judgment is in the following terms:

I cannot accept the credit of Mr Keski. The reasons are the inconsistent accounts, the manner in which Mr Keski gave his evidence, inconsistencies in cross-examination, a substantial element of reconstruction, and that Mr Keski was totally not conversant in English, although he apparently understood a considerable amount of what was going on in that language. Further, there is no such sufficient explanation by way of the damage to the vehicle or both vehicles, which would assist me to overcome those problems by means of corroboration.