OREC and ANOR v NEGDET [1996] NSWCA 412

OREC v NEGDET

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY JA 5 December 1995, 28 March 1996 [1996] NSWCA 412

Motor vehicle accidents — Negligence admitted Two cases heard together — Small awards of damages — Credibility of witnesses — Review of findings by Appeal Court — Use of collateral evidence of other actions of witnesses

APPEAL FROM DISTRICT COURT — Motor vehicle accidents — Negligence admitted — Trial by judge — two cases heard together — Small awards of damages — Appeals against quantum — Credibility of witnesses — Basis of assessment by trial judge. — REVIEW OF FINDINGS BY APPEAL COURT — Inferences to be drawn from medical evidence, from evidence of witnesses, and from collateral evidence. — USE OF COLLATERAL EVIDENCE of other actions of witnesses in assessing witnesses' credit — Error in admitting collateral evidence in the proceeding. — SHOULD A RETRIAL BE ORDERED? — New trial should be ordered.

ORDERS

1. Appeal upheld, judgment set aside.

2. New trial, limited to assessment of damages. 3. Respondent to bear appellants' costs of appeal. 4. Costs of first trial to abide result of new trial.

Mahoney P On the evening of 16 August 1989 a motor vehicle accident occurred in which Mr Mato Orec and his wife Mrs Bozica Orec were involved. A motor vehicle driven by the defendant Mr Negdet struck the motor vehicle in which they were riding. It is accepted that the defendant was negligent. Mr and Mrs Orec each brought separate proceedings against the defendant. On 31 August 1994, his Honour Judge Mahoney gave judgment for Mrs Orec for $266 and for Mr Orec for $2066.55. Each of them has appealed to this Court against those judgments.

At the trial and before this Court, the two proceedings have been dealt with together. No point has been taken in relation to the adrnissibility of the evidence other than that to which I shall refer.