Attinger v State Transit Authority [1999] NSWCA 249

New South Wales Court of Appeal CITATION : Attinger v State Transit Authority [1999] NSWCA 249 FILE NUMBER(S) : CA 40538/97 HEARING DATE(S) : 15/07/99 JUDGMENT DATE : 5 August 1999

PARTIES : Heather Ann Attinger v State Transit Authority JUDGMENT OF : Mason P at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 3331/97 LOWER COURT JUDICIAL OFFICER : Naughton DCJ

COUNSEL : C A Fairbairn (Appellant) K W Andrews (Respondent) SOLICITORS : In person (Appellant) Gordon & Johnstone (Respondent) CATCHWORDS : Motor accident; negligence; contributory negligence; trial judge's erroneous conclusion that no accident occurred in circumstances in which such a finding was not open; no point of principle. DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40538/97 DC 3331/97 MASON P BEAZLEY JA FITZGERALD JA

Thursday, 5 August 1999

Heather Ann ATTINGER v STATE TRANSIT AUTHORITY JUDGMENT

1 MASON P: I agree with Fitzgerald JA. 2 BEAZLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: On 19 January 1987, the appellant was injured when she fell as she alighted from a bus operated by the respondent. The trial judge dismissed her action for negligence on 24 July 1997, and the appellant has appealed to this Court. She seeks an order that judgment be entered in her favour for damages to be assessed. 4 The trial judge did not accept the appellant as a witness of truth. His Honour said that he was " … not satisfied on the balance of probabilities that the [appellant] sustained injury on or about 19 January 1987 as alleged by her", and that she had "failed to persuade" him, on the balance of probabilities, "that the alleged bus accident on 19 January 1987 occurred at all". 5 As his Honour noted, the appellant was the only person to give oral evidence, but he wrongly concluded that there was no independent corroborative evidence. In the course of the trial, he had correctly observed that the appellant's essential account was corroborated by a Marrickville District Hospital record dated the day following the accident which included the following: "… HPI - Bus trip yesterday 1800- Back of dress caught in bus door & [patient] fell out onto hands & knees … walked home - (L) knee (L) wrist painful (no assistance from driver)…"