DIMITRY v McPHEE [1995] NSWCA 125

DIMITRY v McPHEE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, MEAGHER JA and POWELL JA 24, 29 March, 30 June 1995

[1995] NSWCA 125

EVIDENCE — admissibility of documentary evidence — personal injuries damages action — young pedestrian collides with tow truck — conflict as to speed and position of truck — tender of P4 traffic accident report — primary judge (Cole J) rejects tender expressed to be under the Evidence Act 1898 s14B — held: (by the Court) The report was admissible (per Meagher and Powell JJA) under s 14CE of the Evidence Act or possibly (per Kirby P) under s 14B as tendered-but the rejection of the tender was not material — the report, even if it had been admitted, would not disturb the judge's findings that the claim should be dismissed upon Cole J's acceptance of the credit of the defendant and two independent witnesses called by him about the way the accident happened. Utting v Luhatala, Court of Appeal (NSW), unreported, 9 November 1983; 6 Petty Sessions Review, 2857; R v Hawes (1994) 35 NSWLR 294 (CCA) consd.

APPEAL — credit finding — motor vehicle accident involving collision between young pedestrian and tow truck — pedestrian suffers amnesia — primary judge (Cole J) accepts evidence of tow truck driver and independent witnesses — dismisses claim of negligence — whether finding glaringly improbable — whether Court of Appeal authorised to disturb finding — held: It is not. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied.

DAMAGES — multiple injuries — psychiatric damage — response of injury to young boy alleged over-protectiveness — whether subsequent mental disturbance could be attributed to such accident as a result of the consequent over-protectiveness of the boy's parents — held: On the evidence, it could not. Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 (CA) distinguished.