HANNA v BARTOLIC [1996] NSWCA 240

HANNA v BARTOLIC

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and SHELLER JA 17 June 1996

[1996] NSWCA 240 DAMAGES — findings of fact — inconsistencies and circumstantial evidence.

On 9 September 1980 the plaintiff was struck by a sheet of corrugated iron in gusty conditions as she was standing on the footpath close to the defendant's house. After the first trial miscarried, the trial judge at the second trial found that evidence from the plaintiff and defendant's neighbour to suggest that the sheet came from the defendant's roof was inconsistent with that of others who had come to the plaintiffs assistance and held against this version and dismissed the case. The plaintiff appealed on the grounds that some of the circumstantial evidence had not been properly dealt with by the trial judge.

HELD: dismissing the appeal: The trial judge gave careful consideration to all the evidence and there was no basis for disturbing his findings of fact.

Handley JA. This is a plaintiff's appeal from a verdict and judgment for the defendant entered by Cooper DCJ on 2 October 1992. The judge heard an unusual plaintiff's claim for damages arising out of injuries sustained as long ago as 9 September 1980.

The plaintiff was struck by a sheet of corrugated iron as she was standing on the footpath close to the defendant's house at 131 Willison Road, Carlton. The long delay in the case is explained in part by the fact that the trial judge was hearing a second trial, the first trial having miscarried, the judgment at that trial having been set aside by this Court and a new trial ordered.

The plaintiff said that she had driven her car to the street in which the defendant lived and parked her car on the opposite side of the road. She hadcrossed the road to visit a friend of hers, a Mrs El-Tachce who lived next door to the defendant's house. As she was standing in the footpath in very windy and gusty conditions, she noticed a sheet of corrugated roofing iron flying through the air at the roof height of her friend's house where it struck a television aerial and then continued on and struck her on the body.