CORNEY v COLUMBUS OVERSEAS LINE and ANOR [1995] NSWCA 98

CORNEY v COLUMBUS OVERSEAS LINE and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA and ROLFE AJA 31 March 1995, 31 March 1995

[1995] NSWCA 98

EVIDENCE: Rejection by Trial Judge of evidence tendered on behalf of the appellant without explanation, and acceptance by Trial Judge of evidence subject to a condition inconsistent with that evidence

Mahoney v Kruschich (Demolition) Pty Ltd (1985) 156 CLR 522 considered

Meagher JA The court is in a position to give judgment now and I will ask Rolfe AJA to do so.

Rolfe AJA The plaintiff/appellant suffered personal injuries in a motor vehicle accident, which occurred on 1 March 1989, in circumstances whereby the defendant/respondent stated at the hearing, before McDevitt DCJ, that it was negligent. The matter thus proceeded before his Honour to an assessment of damages.

The appellant gave evidence that he suffered, after the accident, from headaches and neck and back pain. Although he received no medical treatment at the scene of the accident, shortly thereafter he attended at Burwood Medical Centre and was referred to an orthopaedic surgeon, Dr Bannister. Dr Bannister gave a number of reports which were tendered. He was not, as I understand it, required for cross-examination, but his Honour said, (appeal book 224), he did not regard any of Dr Bannister's reports as being reliable. The reason for his Honour's rejection of the reliability of Dr Bannister's reports is not disclosed and counsel has been unable to point us to any reason why those reports should not have been accepted, at least at face value. Accordingly, so it seems to me, his Honour excluded from consideration medical evidence favourable to the appellant and to which, in the absence of any attack upon them, he should have had regard.

Dr Bannister prescribed various treatment for the appellant. His Honour recorded: