DIMOVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (GIO); ZORANKO v GIO; DURDEVIC v GIO [1995] NSWCA 126

DIMOVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (GIO); ZORANKO v GIO; DURDEVIC v GIO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 18 May 1995, 27 June 1995

[1995] NSWCA 126

MOTOR VEHICLE ACCIDENT — APPEAL IMPROPER USE OF CREDIBILITY FINDING FINDING BY TRIAL JUDGE NOT BASED ON OBJECTIVE EVIDENCE — RETRIAL ORDERED

FACTS

There was a motor vehicle accident between two vehicles. The trial judge did not accept that the accident was fortuitous and between two drivers unknown to each other. However, there was no evidence that the appellants had falsified the accident. Although the respondent had successfully destroyed the appellants' credibility, the respondent had not pleaded fraud or conspiracy.

HELD

Her Honour had acted upon an unproven suspicion that each of the appellants was involved in a deliberate decision to stage the accident. However, her Honour can only act on the evidence in the light of the issues raised in the case.

Her Honour had misused findings on credibility in a significant way which could and should be seen to reflect on the judgment as a whole. Her Honour made critical findings on credibility in relation to the damages claims without carrying out any analysis of the medical evidence to determine whether, and to what extent, the two appellants' complaints were supported by objective evidence.

The appeal is thus allowed.

ORDERS

(1) Appeals allowed;

(2) Judgment of Karpin DCJ of 20 July 1993 set aside;

(3) In lieu thereof direct entry of judgment for each of the plaintiffs and remit the matters to the District Court for the assessment of damages in each case;

(4) The respondent should pay each of the plaintiff's costs of the hearing at first instance and of the appeal.

Clarke JA At about 6.30am on 19 June 1985 a Hughes Hire Car mini bus, driven by Dzardz Malaj crashed into the rear of a stationary Holden, the driver of which was the appellant, Durdevic, in Regent Street, Chippendale. The evidence given by Durdevic established that he had been driving his vehicle in a northerly direction in Regent Street when he was forced to stop by traffic control lights and while stationary was struck from behind. The driver of the mini bus, Malaj, died before being able to give evidence and therefore gave no oral evidence. Nor was there any written statement from him. The appellants Zoranko and Dimovski, who were passengers in the mini bus and Durdevic sued claiming they had received significant injuries in the accident and the case was heard by Judge Karpin for three days in December 1991 and two days in August 1992. She gave judgment for the respondent, the Government Insurance Office, on 20 July 1993.