CRISP v ROSS [1995] NSWCA 107

CRISP v ROSS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ and COLE JA

7 December 1995, 7 December 1995 [1995] NSWCA 107

DAMAGES — no question of principle.

Cole JA The appellant was awarded $15,434.80 damages by Judge Flannery on 7 December 1987 for injuries suffered in a motor vehicle accident which occurred on 24 July '981. The verdict was made up of the following amounts:

General damages: $10,000.00 Past loss of earnings: $250.00 Interest on past general damages and past loss of $5,000.00 earnings:

Past out of pocket expenses: $184.50 Total: $15,434.50

The appellant seeks a new trial on the question of damages.

An amended notice of appeal raises five grounds of appeal. The first is that the trial judge erred in rejecting the credibility of the appellant by reference to a number of matters which were not the subject of cross-examination namely:

(a) that he borrowed money in order to take various commercial flights between Perth and Sydney;

(b) his reluctance to give Professor Jones his litigation history; and

(c) his reluctance to describe persons with whom he dealt otherwise than by their first or nicknames.

The remaining four grounds of appeal all assert that the trial judge misunderstood the evidence of Dr Seaton.

In my opinion the first ground of appeal fails. The trial judge rejected the appellant as a witness of good credit on a number of bases. They included his unimpressive demeanour, his changing account regarding the manner in which he travelled to Perth, his reluctance to indicate persons from whom he had borrowed money or with whom he had ridden, his poor memory of events, the objective circumstance that he was able to ride motorcycles shortly after various accidents yet said he was unfit for work, inconsistency of his complaints regarding his injuries, as well as the matters the subject of the first ground of appeal. Regarding the borrowing of money to take flights to Perth, the trial judge said it was "not the most important matter which exercised my mind"!. In my opinion where the appellant's credit has been rejected on a multitude of bases an appellant can not overturn such a finding by attacking some few only of those bases. There was an abundance of evidence upon which the trial judge was entitled to reach the finding of credit which he did.