FARAGE v BUTTIEGIEG [1998] NSWCA 77

FARAGE v BUTTIEGIEG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and POWELL JJA 1 May 1998, 28 May 1998

[1998] NSWCA 77

Appeal and New Trial — Interference with Judge's findings of fact — Findings of primary fact — Function of appellate court — Where findings based on credibility of witness.

Priestley JA I agree with Powell JA. Sheller JA I agree with Powell JA.

Powell JA This is an appeal from a Judgment delivered and Orders made by Sidis DCJ in the District Court on 6 March 1997 in proceedings which had been brought by the Appellant against the Respondent seeking to recover damages in respect of injuries which she claimed to have sustained in a motor vehicle accident which occurred on 29 December 1994. In those proceedings Sidis DCJ found a verdict and entered Judgment in favour of the Appellant in the sum of $750 and ordered the Respondent to pay the Appellant's costs of the proceedings up to and including 20 February 1996, that being the date upon which the Respondent's solicitors had served upon the Appellant's solicitors an offer of compromise in a sum significantly in excess of that for which her Honour directed the entry of judgment in favour of the Appellant.

The Appellant's case at trial was that, on 29 December 1994, at which time she was then aged 18 years, she, accompanied by her mother who was a passenger in the front seat was the driver of a Datsun 180B 4 door sedan, owned by her brother, in the car park of the Westpoint shopping centre at Blacktown when a Cortina sedan which was owned, and was then being driven by, the Respondent reversed into the Datsun 180B sedan, the collision being such as to damage the sedan and to cause the Appellant to sustain an injury to her dorso-lumbar spine which produced significant continuing disabilities and incapacities.