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. In my opinion the appeal must fail. Her Honour sets out in her judgment the evidence of Dr Bliss upon which the appellant relied in the court below, and which he again sought to rely upon in this Court to establish that his version of the accident should have been accepted. Having referred to that evidence her Honour said that notwithstanding those responses she did not accept that the injury occurred in the waywhich the appellant described it. She then set out her reasons for coming to that conclusion. In my opinion her Honour clearly understood the differences between the various versions of the evidence. She clearly understood that Dr Bliss" evidence did not support the respondent's specific version of the accident. However, the onus is upon the appellant to prove that the respondent was negligent. He gave a version of events which was inconsistent with the opposing version which her Honour was entitled to accept and which she did accept. In any event Dr Bliss" 2 UNREPORTED JUDGMENTS evidence did not, at the end of the day, support the appellant's version nor the circumstances. The verdict of her Honour was clearly open to her and the appeal should be dismissed with costs. Handley JA. I agree. Dr Bliss" statement that the appellant's version was not impossible did not establish an incontrovertible fact which was inconsistent with the trial judge's findings. Dunford AJA. I also agree. Handley JA. The order of the Court, therefore, is that the appeal is dismissed with costs. Orders accordingly.