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)…" The hospital record further noted that the appellant had sprained her left wrist and fingers, had abrasions to her left finger and had bruised her left knee. 6 While it was open to the trial judge to criticise the appellant's evidence, his opinion that her attempts to describe what had occurred during a lengthy, hostile and at times confusing cross-examination involved substantial inconsistencies was unjustified. It was nonetheless open to his Honour to conclude that the appellant was an unsatisfactory and unreliable witness, and to conclude that she had not discharged her onus of proving that the respondent was negligent, but the conclusions which are set out in paragraph two above were not open to him, and were not urged upon him by the respondent. Regrettably, as a result of those conclusions, there was no finding concerning how the appellant was injured or whether the respondent's negligence caused or contributed to her injuries. The trial accordingly miscarried. 7 Especially having regard to the trial judge's opinion of the appellant's evidence, it would be inappropriate for this Court to decide what occurred and whether the respondent was negligent. 8 It follows that the appeal must be allowed, with costs, and a new trial ordered on all issues. While the action should be remitted to the District Court, it is a matter for future determination whether the action should be heard in that Court or the Local Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.