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. She was taken into the house of the defendant by Mrs Bartolic and in due course was joined there by Mrs Bartolic's father, Mr Fenech, and later by the plaintiffs friend, Mrs El-Tachce. The dispute at the trial concerned the origin of the roofing iron which struck the plaintiff. The plaintiff's case was that the roofing iron had come from the rear of the defendant's house where it had been resting, held down by some bricks, but otherwise not fastened. There was a dispute as to whether the roofing iron at the back of the defendant's house, which in general was of brick and tile construction, had been held down by bricks prior to the day in question, the plaintiff relying upon the evidence of Mrs El-Tachce that this was the situation. She also relied upon her own evidence that when she first observed the flying roofing iron she noticed bricks in the air. The clear implication of this evidence was that a strong gust of wind had caught the roofing iron and lifted it from its position, scattering the 2 UNREPORTED JUDGMENTS bricks through the air. The plaintiff relied on Mrs El-Tachce's evidence that after the incident she noticed some bricks on her side of the dividing fence and on the defendant's side, which had not been there prior to the accident. The plaintiff's case about the origin of the flying roofing iron was circumstantial apart from evidence given by Mrs El-Tachce. She said that at some point after she had arrived and seen the plaintiff and Mrs Bartolic, she had gone into her own home to the kitchen where she had prepared some food for her infant son. While doing this she noticed that roofing iron was missing from the back of the defendant's property. Having completed that task she rejoined the group and Mr Fenech, the plaintiff and herself had gone to St George Hospital where the plaintiff received medical treatment. Later that day, following her return from the hospital, she noticed, according to her evidence, that the roofing iron had been replaced on the back of the defendant's property. As the trial judge indicated, this evidence relating to the absence of the roofing iron from the back of the defendant's property immediately after the accident, and its replacement in the course of the day prior to Mrs El-Tachce's return, was the linchpin of the plaintiff's case and the only direct evidence that the flying roofing iron had come from the defendant's property. The trial judge was not satisfied about this evidence from Mrs El-Tachce. He preferred the evidence of Mrs Bartolic that Mrs El-Tachce had not left the group to go back into her own home before accompanying the plaintiff in Mr Fenech's car to the hospital. Her evidence in that respect at page 112 of the appeal book is reasonably clear, Mrs Bartolic saying that MrsEl-Tachce remained with the group until she left to go to hospital with the plaintiff. Mr Fenech's evidence in that respect is not as clear and it is possible that the learned trial judge took more from Mr Fenech's evidence in this respect than it clearly established. Nevertheless, although Mr Fenech did not say directly that Mrs El-Tachce did not go back into her house, he certainly does not support the plaintiffs case that she did and there is perhaps an implication from his evidence that the group remained together until they left to go to the hospital. Nevertheless, Mr Little has made good to some extent his criticism of the judgment of the learned trial judge, who was mistaken in thinking that Mr Fenech gave evidence that Mrs El-Tachce had not gone back into her home. It is clear that if Mrs El-Tachce did not go back into her own home before leaving for the hospital she would have had no opportunity to observe the state of the roof at the rear of the defendant's property and to see that roofing iron was missing from where it had been previously. Apart from the question of the movements of Mrs El-Tachce immediately prior to going to the hospital, Mr Little also relied upon what he submitted was the judge's failure to deal with her evidence about the location of the bricks on both sides of the dividing fence which had not been there prior to this incident. His Honour, however, explicitly referred to this evidence and it cannot be said that he overlooked it. He made no express findings about the plaintiff's evidence of seeing the bricks in the air along with the flying roofing iron, nor did he expressly deal with Mrs El-Tachce's evidence about the bricks. He limited himself to noting the evidence in the defendant's case that there were a lot of bricks in the back of the defendant's property which the children used to play with and made no further findings. URJ HANNA v BARTOLIC (Clarke JA) 3 It is clear, however, that his Honour was not satisfied about the evidence in the plaintiff's case about the bricks either being in the air or being found on both sides of the dividing fence later in the day where they had not previously been located. His Honour carefully considered all the evidence and set it out very fully in his reasons for judgment. There were a number of matters which he relied on in coming to his conclusion that the plaintiff had failed to satisfy him on the balance of probabilities that the sheet of corrugated iron had come from the defendant's house. He referred in particular to the, at that stage, friendly relations between Mrs El-Tachce and the Bartolics and the absence of any reference by Mrs El-Tachce to noticing the absence of roofing iron from the back of the Bartolics" property prior to leaving to go to hospital with the plaintiff. He also referred to an inconsistency between evidence given by the plaintiff and some evidence given by her at the first trial. I have not been persuaded that the two particular matters which Mr Little for the appellant fastened on in his submissions in support of the appeal have been established either at all, or to the extent which would be necessary if this otherwise careful judgment were to be disturbed. I therefore would propose that the appeal fail and that it should be dismissed with costs. Clarke JA. I agree. Sheller JA. I also agree. Clarke JA. The order of the Court is the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: P J Little Solicitors for the appellant: Crichton-Browne Crossley Counsel for the respondent: R L Arden Solicitors for the respondent: Curwood and Partners