KOMURCU v NOUR [1997] NSWCA 180

KOMURCU v NOUR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, BEAZLEY JA and DUNFORD AJA 24 February 1997

[1997] NSWCA 180

Beazley JA. The appellant sustained severe injuries to his right leg in a motor vehicle accident on 13 December 1993. He and the respondent gave almost directly opposing versions of the accident during the course of the trial. The trial judge preferred the respondent's version and entered a verdict in his favour.

The appellant appeals against the verdict and seeks a new trial for the reassessment of damages. I do not propose to restate the opposing versions of the parties. They are fully set out in the judgment below and in the respondent's written submissions.

It is sufficient to record that the appellant's version was supported, save in one material matter, by his wife, who was a passenger in the appellant's vehicle. The respondent's version was supported by his former wife, who was a passenger in the respondent's vehicle, and also by four reports all made on the day of the accident, namely the ambulance report and the reports of the triage nurse on admitting the appellant to Liverpool hospital, the intern and the orthopaedic registrar, both of whom saw the appellant within a few hours of his admission to hospital. There was also a report of Dr Bliss, orthopaedic surgeon, dated 29 August 1995, whose initial statements as to probable cause of the injury did not support the appellant's version.

On its face this appeal is governed by the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167. The question is whether there was anything which takes it outside those principles. The appellant asserts that there is one matter which does establish appealable error, namely that the trial judge failed to consider the evidence of Dr Bliss as to the nature and cause of the injury. I should, however, state that as the appealable error was framed during the course of argument this morning, it was that the trial judge did not say why she did not pay attention to Dr Bliss" evidence as to the nature and cause of the injury.