Brazel v Nicholls

[2003] NSWCA 387

CITATION:	Brazel v Nicholls [2003] NSWCA 387
HEARING DATE(S):	1 December 2003
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Meagher JA at 1; Tobias JA at 2; Palmer J at 89
DECISION:	Appeal dismissed with costs
CATCHWORDS:	NEGLIGENCE - Causation - Conflicting medical reports - Whether it was open to the trial judge to reject medical opinions in determining causation on the basis of unreliability - What is required to warrant an appeal court disturbing the finding of a lower court in relation to causation - Burden of proof - Damages - Whether trial judge should have awarded damages for non-economic loss - ND
LEGISLATION CITED:	Motor Accident Act 1988 , ss 79A
CASES CITED:	Jones v Bradley [2003] NSWCA 81 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 McGroder v Maguire (2002) NSWCA 261 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1964) 114 CLR 164 Shorey v P T Limited (2003) 77 ALJR 1104 Winston v Roach [2003] NSWCA 310
PARTIES :	Ivan Paul Brazel Suzanne Florence Nicholls
FILE NUMBER(S):	CA 41149/02
COUNSEL:	A: Ms Sharron Norton SC R: Mr John Guihot
SOLICITORS:	A: Stacks The Law Firm, Forster R: Vandervords, Sydney

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9/01
LOWER COURT JUDICIAL OFFICER :	Gibbs DCJ

CA 41149/02
DC 9/01

MEAGHER JA
TOBIAS JA
PALMER J

Friday 19 December 2003

IVAN PAUL BRAZEL v SUZANNE FLORENCE NICHOLLS

Judgment

1 MEAGHER JA: I agree with Tobias JA.

2 TOBIAS JA: The appellant (the plaintiff in the District Court) sued the respondent for damages arising out of a motor vehicle accident which occurred on the New England Highway on 19 August 1999. The respondent admitted that she owed the appellant a duty of care and that she had breached that duty. Accordingly, the issue before the primary judge was confined to the questions of causation and assessment of damages.

3 On 29 November 2002, Gibb DCJ entered judgment for the appellant and assessed damages in the sum of $2,296.20. Her Honour held that the appellant was not entitled to damages for non-economic loss and hence the damages awarded were confined to economic loss. The appellant seeks to challenge the primary judge's decision before this Court.

The background facts

4 The relevant facts are not in dispute. On 19 August 1999, the appellant was driving north on the New England Highway at a speed of approximately 100km per hour. The accident occurred when the vehicle driven by the respondent moved onto the highway in front of the appellant's vehicle, striking the respondent's vehicle broadside. The appellant was wearing a seatbelt at the time.

5 In his Statement of Particulars, the appellant claimed that he sustained injuries to both knees, both shoulders, cervical spine and chest. He further alleged that he suffered severe bruising to both elbows as well as injuries to his groin, testicles, right arm, right hand and back. He alleged nervous shock, post-traumatic stress and other similar…