DIMITROV v GIO OF NSW [1994] NSWCA 84

DIMITROV v GIO OF NSW SUPREME COURT OF NEW SOUTH WALES

CLARKE, HANDLEY AND SHELLER JJA 1 December 1994

[1994] NSWCA 84

DAMAGES — LIABILITY — EXACERBATION OF PRE-EXISTING CONDITION

Clarke JA On 31 October 1990 Judge Conomos gave judgment in two actions in which the appellant sought damages against different defendants. Both defendants were, however, represented by the same counsel who admitted that his clients had breached their duties but denied that the appellant had suffered any damage as a consequence of those breach of duties.

The issues which confronted Judge Conomos were, first, whether the appellant had established that he suffered any injury as a result of the first or second accident, or both, and, secondly, if he had suffered injury, what was the proper measure of compensation to award to the appellant. In the event Judge Conomos was not satisfied that the appellant suffered any consequences from either accident and he entered verdicts and judgments for both defendants.

The appellant has appealed upon the grounds that his Honour failed to give enough weight to the evidence of the appellant, that his Honour erred in drawing inferences reducing the weight of the appellant's evidence, that his Honour erred in drawing inferences from the appellant's evidence which were not supported by evidence from the defendants, and that his Honour's judgment was against the evidence and the weight of evidence. The final ground is, of course, not a proper ground of appeal from a decision of a judge sitting alone, but I will not take time with that matter.

In argument today counsel for the appellant who, I respectfully say, put everything that could be put on behalf of his client, submitted that the trial judge had reached erroneous factual conclusions and in doing so had not taken proper advantage of his position as a trial judge. On the contrary, according to the submission, the trial judge had misused his position and acted upon evidence which, if not irrational, was highly improbable.