HAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 189

HAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy P, HANDLEY JA and POWELL JA 21 April, 6 June, 19 December 1995

[1995] NSWCA 189

APPEAL — credibility findings — demeanour of party and witnesses — two claims — claim of slipping fall in supermarket — rejection of hearsay statement allegedly made by customer who fell shortly before plaintiff — alleged mistake in use of medical evidence — judge rejects plaintiff as witness of truth — second incident concerns alleged impact with plaintiff's motor vehicle in carpark — driver denies that plaintiff was in motor vehicle at the time it was struck — judge believes driver and disbelieves plaintiff — held: The findings were impervious to appellate disturbance. Being based in part upon the judge's assessment of the credibility of the plaintiff and of other witnesses, they were open to the judge and were not such as to show that the judge had misused his advantage as the judge of trial seeing the witnesses. Appeals dismissed. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 172 applied.

EVIDENCE — hearsay — admissibility of — alleged statement made out of court by person allegedly injured by slipping on floor of supermarket shortly prior to plaintiff's fall — whether report of statement by plaintiff admissible — whether within res gestae exception to hearsay rule — whether sufficient contemporaneity — whether alleged statement maker has an interest in the subject — whether element of spontaneity sufficiently present — trial judge (Lusher AJ) excludes evidence and declines to act upon it — upon appeal — held: (1) It was open to the trial judge to exclude the evidence as outside the res gestae exception to the hearsay rule. Ratten v The Queen [1972] AC 389 (PC); Vocisano v Vocisano (1974) 130 CLR 267; Pollitt v The Queen (1992) 174 CLR 558; Sydney Electricity vy Giles, Court of Appeal (NSW), unreported, 25 November 1993 applied; (2) In any case, no relevant miscarriage had occurred which would warrant allowing the appeal on this ground.