FURNEAU v VAUGHAN [1995] NSWCA 158

FURNEAU v VAUGHAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and COLE JJA

13 March 1995, 13 March 1995

[1995] NSWCA 158

FINDING TRIAL JUDGE INCORRECT ON EVIDENCE

FACTS:

Appellant appealed on quantum.

HELD

(1) The finding of trial judge was based on an incorrect interpretation of the evidence.

Meagher JA Mr Louis Eugene Furneau was injured in an accident caused by the defendant's negligence on 16 September 1988. His Honour Judge Phelan awarded him a modest verdict of $22,400. In the circumstances of this case this seemed a smallish amount and hence there has been an appeal by the plaintiff.

The explanation of the verdict is that at his trial the plaintiff complained of pain in the lower back caused by the accident and his Honour disbelieved him. His Honour held that there was no such complaint at the time. He also held that the plaintiff's credibility was diminished by pretending to have made such a complaint when he had not done so.

There may be no doubt what his Honour found. On one occasion he said there is no note of pain in the lower back. He says the same thing several times. Unfortunately, his Honour was quite wrong.

At the date of the accident, the plaintiff saw Dr Coomeran and on the evidence the doctor said the plaintiff did complain of pain in the lower back at the time of the accident and his contemporaneous notes say the same thing. We are, therefore, confronted with a situation where his Honour's main reason for holding that there was no injury to the lower back was wrong. His Honour's main reason for disbelieving the plaintiff was wrong.

Mr Shore for the defendant sought to extricate his client from the consequences of those facts by arguing that his Honour's admitted error could be viewed as ultimately irrelevant to the conclusion at which his Honour arrived. In my view, he was not successful in this effort.