Bymore Pty Limited (trading as Hogsbreath Cafe) v Bardino [1999] NSWCA 240

New South Wales Court of Appeal CITATION : Bymore Pty Limited (trading as Hogsbreath Cafe) v Bardino [1999] NSWCA 240 FILE NUMBER(S) : CA 40880/97 HEARING DATE(S) : 2 July 1999 JUDGMENT DATE : 2 July 1999

PARTIES : Bymore Pty Limited (trading as Hogsbreath Cafe) v Anthony David Bardino JUDGMENT OF : Meagher JA at 1; Stein JA at 10; Giles JA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 82/94 LOWER COURT JUDICIAL OFFICER : Mahoney DCJ

COUNSEL : Appellant: J. Poulos QC/E. Romanuik Respondent: J.D. Hislop QC/P. Doherty SOLICITORS : Appellant: Parish Patience Respondent: G. W. Stevens CATCHWORDS : Negligence - damages - quantum - evidence - credibility of witnesses - findings cannot be reversed unless manifestly unreasonable. DECISION : Dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40880/97 MEAGHER JA STEIN JA GILES JA

Friday 2 July 1999

BYMORE PTY LIMITED v ANTHONY DAVID BADINO JUDGMENT

1 MEAGHER JA: The plaintiff in this matter suffered an accident on the defendant's premises on 7 May 1994. He sued the defendant and the case was heard by his Honour Judge Mahoney in the District Court. His Honour found for the plaintiff in the sum of $746,015.60 made up as follows, general damages $200,000.00; interest on general damages $ 6,000.00; past economic loss $ 53,160.00; interest on past economic loss $ 4,168.80; future economic loss $194,696.80; past care $ 27,300.00; interest on past care $ 4,914.00; future care $175,000.00; out-of-pockets, past and future, $ 80,776.00. 2 The defendant appeals from this verdict. 3 The first, and perhaps the principal point, is that the defendant alleges that his Honour's finding on credibility should be reversed. 4 A trial judge's principal job is to determine the credibility of the witnesses who appear before him. Once he has made findings on this issue, as is notorious, it cannot be reversed unless the findings are manifestly unreasonable. His Honour, in the present case, broadly believed the plaintiff and to my mind that finding is made all the stronger by virtue of the fact that his Honour recognised that the plaintiff's evidence was in many ways tainted with mendacity. In these circumstances the defendant's attack on his Honour's findings and credibility seems to me to fail to meet the standard required. 5 The appellant's next attack was on the figure for general damages. That figure was $200,000. Certainly at first blush it may appear to be a little excessive though on the whole, I do not think we should interfere with it even if it is at the upper range of permissible figures. After all, the plaintiff, according to the evidence which was believed by his Honour, was in constant pain. He had maximum amount of medication, he suffered from depression and he has lost all his capacity for sexual relations. These disabilities would seem to be permanent and he often contemplated suicide. His life is dominated by pain and according to his Honour, there were 32 years of that misery left in him. Under those circumstances, I cannot think the figure for general damages can be disturbed. 6 As far as future care is concerned, considering what has to happen, I do not think that his Honour's figure which works out to be $160 per week can also be tampered with. 7 As far as past and future economic loss is concerned his Honour's standard was $360 a week, and bearing in mind that the plaintiff was once a skilled motor mechanic, that does not seem to me to be excessive. 8 There is one matter in addition which the defendant/appellant raised. That was that his Honour should have granted an adjournment which he did not. We are at a loss to determine this point in any sensible way because the appellant has not put before us any sensible evidence about what happened at the trial in this respect. We know that the hearing took place on 2 and 3 December 1997 and judgment was given on 4 December of that year. Now we know that some application for an adjournment was made to furnish the court with some medical reports. This morning we were shown those medical reports and as they were dated 24 July 1996, twice, and 24 November 1997, that would leave a total lack of explanation as to why, if the defendant wished to rely on those medical reports, he could not have put copies of them in the hands of the plaintiff's legal representatives long before the trial began. So without being able to rule with any precision on the adjournment application, insofar as we have documents relating to it, there would be no occasion to upset his Honour's finding on that matter either. 9 In all those circumstances I dismiss the appeal with costs. 10 STEIN JA: I agree with Justice Meagher and would simply add these short remarks. The credit findings made by his Honour in relation to the plaintiff were open to his Honour to make. The general damages were within the discretionary range, even if generous. Past and future economic loss findings, and the damages which flowed thereon, were open on the evidence and the inferences available to be drawn by his Honour. So too, the findings and awards for domestic care. 11 As to the refusal of the adjournment, the appellant of course bears the onus of demonstrating that his Honour's discretion miscarried. In my opinion that onus is unable to be discharged particularly in the absence of the judgment on the adjournment application. 12 I agree with the order proposed by Meagher JA. 13 GILES JA: I agree with what has been said both by Justice Meagher and by Justice Stein. The only matter that I would add, is in relation to the question of adjournment. 14 It was suggested in submissions that even on the material which we have before us, it could be argued that the adjournment should have been granted because any detriment could have been remedied in costs. The affidavit placed before the trial judge in support of the application for the adjournment included, "I acknowledge that the plaintiff is prejudiced in not having his claim determined in the special sittings". We do not have his Honour's reasons, but that acknowledgment makes it impossible for it to be said to us that the failure to grant an adjournment, even in the absence of knowing his Honour's reasons, was erroneous. 15 MEAGHER JA: Well in light of that, the order of the court is the appeal is dismissed with costs.