New South Wales Court of Appeal CITATION : O'CONNOR v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES [1999] NSWCA 79 FILE NUMBER(S) : CA 40615/97 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 29 March 1999 PARTIES : Patrick Joseph O'Connor v State Transit Authority of New South Wales JUDGMENT OF : Priestley JA at 1; Powell JA at 11; Stein JA at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DCC 2378/95 LOWER COURT JUDICIAL OFFICER : Naughton DCJ COUNSEL : Appellant - D. Cutler Respondent - R. McIlwaine SOLICITORS : Appellant - Stewart Cuddy & Mockler Respondent - Adelsteins CATCHWORDS : Motor vehicle accident; Verdict for defendant; Pedestrian hit by Government bus. ACTS CITED : Motor Accidents Act 1988 DECISION : Dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40615/97 DCC 2378/95 PRIESTLEY JA POWELL JA STEIN JA Monday, 29 March 1999 O'CONNOR v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES 1 PRIESTLEY JA: Mr Patrick O'Connor, as plaintiff in the District Court, claimed damages from the State Transit Authority of New South Wales as defendant. The plaintiff had been hit by one of the defendant's buses in Carrington Street Sydney on 11 August 1993. He claimed damages based on injury which he asserted he suffered as a result of having been hit by the bus. The principal element in his damages claim was damage to his left shoulder. 2 The defendant admitted that the plaintiff had been hit as a result of the defendant's fault. 3 Naughton DCJ heard the plaintiff's claim. He was not satisfied that any damage of lasting significance had been done to the plaintiff's shoulder by the bus. In arriving at this conclusion, he accepted what had been said in a medical report from Dr Donaldson, which was tendered in evidence, namely that the plaintiff's ultimate physical disability as a result of the jarring that he may have suffered, which was not even sufficient to knock him over, would be negligible over and above the degenerative changes of ageing. The judge's final holding was that the plaintiff had failed to prove on a balance of probabilities that his ability to lead a normal life was significantly impaired by the injuries suffered by him in the accident. The judge said he had therefore failed to pass through the relevant jurisdictional gateway or threshold contained in s 79 of the Motor Accidents Act 1988. As a result, the plaintiff was not entitled to any damages so that his action must fail. 4 The plaintiff appealed against this judgment. 5 One of the grounds of appeal raised a question concerning the interpretation and application of s 79 of the Motor Accidents Act but that ground was abandoned when the appeal came on for hearing. In the event, the appeal was based entirely on criticisms of the trial judge's findings of fact. 6 Counsel for the plaintiff carefully took this Court through features of the plaintiff's case which he submitted the judge was wrong in not accepting. However, there were obstacles in the path of these submissions which in my opinion could not be overcome. That is because of the nature of the appeal in these proceedings. The appeal to this Court does not bring about a case here which is, as it were, a fresh start to the whole matter. This Court in the course of the kind of appeal which comes before it today is bound to consider the facts of the case for itself, but in doing so is also bound to take into account findings of fact by the trial judge based on credibility and demeanour and must take into account those findings in its own assessment of the facts. It will only not follow that course when it is plain that the trial judge has made some clear mistake in his assessment of the facts. In my opinion it has not been shown that in the present case the judge made any such mistake. 7 The trial judge did not accept the plaintiff's evidence concerning the effects on his shoulder of the bus accident. He gave reasons for his non-acceptance of the evidence, which were soundly based on a number of features of factual matters that emerged in the course of the hearing. For the reasons already mentioned, this Court is not in a position to overturn those findings. 8 A consequence of the trial judge's non-acceptance of the plaintiff's reliability was that he did not accept the opinions expressed in a number of medical reports tendered in the plaintiff's case which relied on a previous history of the plaintiff which the judge found on ample materials before him was a quite unsound history. This made the judge's acceptance of the opinion of Dr Donaldson which I have already mentioned quite justifiable and unchallengeable on the ground of any legal error. It also left it properly open to the trial judge to accept other medical opinions which undermined the plaintiff's case for damages. For example, Dr Bornstein had said in his report that "It was possible that the appearances on an x-ray of October 1994 could have taken their origin in August 1993. However, it would have been my view that they would have been present for a considerable period before this, despite his complaints to the contrary." (That is despite the plaintiff's complaints to the contrary.) 9 In light of the evidence that emerged before the trial judge concerning the previous history of problems with the plaintiff's shoulder, it became open to him to do what he did, which was to proceed on the basis that those appearances on the x-ray had been present prior to the August 1993 accident. A further report which the course of the evidence and the trial judge's findings of fact on it left it open to him to accept was that of Dr Spira, who said "In summary, it is difficult to dissect out the effects of the bus accident from Mr O'Connor's inter-current illnesses of spondylosis, osteoarthritis and Parkinsonism, each of which contribute to his disability. I have a strong suspicion that Mr O'Connor had significant chronic changes within both shoulder joints and it seems unlikely that his rotator cuff syndrome relates to the manner in which the bus impacted with his back." 10 It was on the footing of the combination of his rejection of the plaintiff's own evidence concerning his prior history, a rejection well founded in contemporary documentation, and his acceptance of opinions of the kind that I have referred to that the trial judge arrived at his conclusion. It may have been possible for the trial judge to take a different view of some of the facts and to have accepted some of the plaintiff's explanations of his not having told a number of medical experts anything like a full history of the past condition of his shoulder. It was well within the judge's province however not to accept the version of events which was pressed upon him on behalf of the plaintiff and which has been again pressed upon this Court today. I do not see any appealable error in any part of the trial judge's reasons or conclusion. I therefore think the appeal should be dismissed with costs. 11 POWELL JA: I agree. 12 STEIN JA: I also agree. 13 PRIESTLEY JA: The order of the Court then is that the appeal is dismissed with costs. ********** 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.