HALL v SLOANE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 14 October 1994, 14 October 1994 [1994] NSWCA 120 FACTS: The appellant challenged assessment of disability in an award of damages. HELD: (1) His Honour's findings can only be explained on the basis that there was a limited acceptance of her evidence and being credibility based cannot be disturbed. ORDERS: (1) Appeal dismissed with costs. Priestley JA I will ask Meagher JA to deliver the judgment. Meagher JA Mrs Sloan who was born on 18 August 1970 was involved in a tor vehicle accident on 17 March 1989. First, she sued by arbitration where she was apparently disbelieved and it came to nothing. She appealed to his Honour Judge McLachlan in the District Court who found for her and awarded her a verdict of $21,017. The negligent driver involved in the accident has appealed. The facts which I were found by his Honour are as follows: The accident was apparently of some severity, that it caused pain in the lower back and in the knees and that that pain was still existing at the time of the hearing. This story is to some extent corroborated by the account she gave to her initial GP and supported by the hospital records. Her complaints are also supported by a neurological expert, Doctor Frith whose diagnosis I think was accepted by his Honour but not the prognosis. In these circumstances I take it his Honour concluded that the plaintiff was virtually unemployable in any active occupation requiring bending, lifting or carrying or serving behind a counter but this was by no means a permanent condition. Such a finding must involve a finding that she has lost a large proportion of a possibility open to her. At all events his Honour found the accident and her impairment was 18 per cent of the most extreme case. The plaintiff s case at the trial was pitched somewhat higher and his Honour obviously did not believe the plaintiff s case as it was put at the trial. Although it is not quite clear on his Honour's utterances, one must infer the findings which I have recited were in fact arrived at. As far as the plaintiff s general credibility is concerned at no stage did his Honour say that he rejected it but he did say "I have some reservations about credibility." However, his Honour's findings can only be explained on the basis that there was a limited acceptance of her evidence and since the appellant's arguments as I understand them seem to me to involve no more than a re-agitation of her credibility, they should be rejected. I commend the appeal should be dismissed with costs. PRIESTLEY JA: I agree. 2 UNREPORTED JUDGMENTS Handley JA I also agree. His Honour was prepared to accept the plaintiff s evidence if it was supported by other evidence it seems to me the appellant's case must fail. Her evidence was supported by other evidence. First of all the accident was a severe one. Secondly, the plaintiff was supported at least as to her present condition by Doctor Frith; and thirdly it is apparent the plaintiff had consulted Doctor Cornwall well before the arbitration hearing November 1992. In these circumstances his Honour;s findings are credibility-based and cannot be disturbed by this Court. PRIESTLEY JA: The order of the Court is the appeal is dismissed with costs. Appeal dismissed with costs. Representation: Counsel for the appellant: D Russell Solicitors for the appellant: GM Meadows Counsel for the respondent: D Andrews Solicitors for the respondent: SELF