KOZUL v GIO [1995] NSWCA 249

KOZUL v GIO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE and ROLFE AJA 27 March 1995, 27 March 1995

[1995] NSWCA 249 DAMAGES — NO QUESTION OF PRINCIPLE

Priestley JA Mr Justice Cole will deliver the reasons.

Cole JA This is an appeal from a decision of Judge Rummery sitting in the District Court, which was delivered on 29 November 1991. I should refer to the chronology in this matter as it is important for a number of reasons.

The appellant was injured in an accident on 30 July 1984. He issued a Statement of Claim seeking damages for injuries suffered in that accident on 26 November 1985. The hearing occurred between 26 February and 12 September 1990 over a period of some six days. Judgment was delivered on 29 November 1991. A notice of appeal was filed on 20 December 1991 and the matter comes on for hearing today. It is thus almost eleven years since the accident.

The appellant saw Dr Strinich three days after the accident, that is on 3 August 1984. The learned trial judge found that on that occasion the appellant made no complaint to Dr Strinich regarding his neck, his lumbar spine or his right knee. The trial judge found that the appellant first made complaint regarding those three matters some eight months later when he saw Dr Strinich on 10 August 1985. That finding was clearly wrong, as appears both from Dr Strinich's oral evidence and from his report dated 28 May 1985 which appears at Appeal Book at 217.

This is one of those occasions where there are inconsistent facts incontrovertibly established contrary to a finding of fact made by the trial judge [See Devries and Another v Australian National Railways Commission and Another [1]] [1. (1993) 177 CLR 472 at 479]

The trial judge's finding of fact in this respect was important in two regards. First, his Honour approached the consideration of the nature and extent of the appellant's injuries in assessing the appellant's credit upon the basis that he had made no complaint regarding them for some eight months after the accident. Secondly, the finding was important in relation to the question of causation and the medical issues associated with that.