SILVA v TURNER CORPORATION LTD [1995] NSWCA 426

SILVA v TURNER CORPORATION LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and MEAGHER JJA 29 March 1995, 29 March 1995 [1995] NSWCA 426

FINDING OF CREDIBILITY BASED ON EVIDENCE — MISTAKE FACTS: Appeal from trial judge's findings on credibility based on evidence and consequent award of damages on quantum.

HELD: (1) His Honour made such findings as were available to him on the evidence and in

these circumstances his findings cannot be disturbed. ORDERS:

(1) Appeal dismissed with costs.

Meagher JA The appellant, and the plaintiff, obtained a verdict from Sackville AJ, for the amount of $11,560. He had been a rigger who had the terrible experience of falling four floors in a building, and almost miraculously escaping very serious injury. He, nonetheless, claimed before his Honour that he was then permanently incapacitated, had been incapacitated since the accident, and apparently would be in the future.

Unfortunately, his Honour did not believe him or his witnesses, or his medical experts. His Honour found that the plaintiff did not give credible evidence; that he sought to maximise the physical consequences of the accident; he exaggerated his symptoms; that he postured in court; overstated and exaggerated his claim for discomfort; that he tailored his evidence to advance his case; that he was not to be believed in his denial of capacities; and that his evidence was contradicted by certain films which had been made of him.

The defendant's doctors, on the other hand, were of the view that whilst his disabilities were real, they were far from being total and he was at the time of trial, and had been for some time before then, capable of sedentary and partly sedentary employment. As a matter of history, we know for some three years he had been a partner in the running of an art gallery.