NSW INSURANCE MINISTERIAL CORPORATION v BICANIN; NSW INSURANCE MINISTERIAL CORPORATION v BINOVSKI [1997] NSWCA 233

NSW INSURANCE MINISTERIAL CORPORATION v BICANIN; NSW INSURANCE MINISTERIAL CORPORATION v BINOVSKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA, HODGSON and STUDDERT AJJA 5 March 1997

[1997] NSWCA 233

Hodgson AJA This is an appeal by the defendant from the decision of Garling DCJ, given on the 19th December 1994 in two personal injury cases brought in respect of the same motor vehicle accident, in which his Honour found verdicts for both plaintiffs, who are the respondents to the appeal.

It is convenient to outline briefly the background circumstances in respect of which there was little, if any, dispute, in order to clarify the issues in respect of which there was some dispute.

Prior to the accident both respondents, Mr Binovski and Mr Bicanin, were employed by the State Rail Authority at Tempe and worked in the same gang of about 30 or 40 men, Mr Binovski as a time-keeper and Mr Bicanin as a labourer. Mr Binovski lived at 6 Richmond Close, St Johns Park and Mr Bicanin at flat 34/65 McBurney Road, Cabramatta.

According to the respondents, the accident occurred on 4th June 1985 in Vale Street, Canley Vale, when a motor vehicle driven by one Wendy Markham was struck from the rear by another motor vehicle driven by one Osman Suhovic. According to Mr Binovski's statement of claim, he was a passenger in the car driven by Ms Markham; and according to Mr Bicanin's statement of claim, he was a passenger in the car driven by Mr Suhovic. Both alleged negligence by Mr Suhovic and claimed damages for personal injuries.

The police were not called to any such accident. However, there is in evidence a document in Ms Markham's handwriting, signed by Mr Suhovic and witnessed by Mr Binovski and Mr Bicanin, in the following terms.:

I Osman Suhovic reg No NDC 606 Toyota my lic no 9542JD. Take responsibility for this accident on 4.6.85 cnr Vale & Chancery St's Canley Vale. And agree to repair damage to KDI 193 owned by Wendy Markham.