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Carney v Newton

Carney v Newton

Case [2006] TASSC 4 15 February 2006

Appeal

Misdirection or non-direction

Balance of probabilities

Civil Litigation & Procedure

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[2006] TASSC 4

CITATION: Carney v Newton [2006] TASSC 4

PARTIES:  CARNEY, Deborah Katherine
  v
  NEWTON, Robert

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 95/2005
DELIVERED ON:  15 February 2006
DELIVERED AT:  Hobart
HEARING DATE:  6 – 8 February 2006
JUDGMENT OF:  Underwood CJ, Evans and Blow JJ

CATCHWORDS:

Appeal and New Trial – New trial – In general and particular grounds – Particular grounds – Misdirection or non-direction – Directions as to particular matters – Other matters – Balance of probabilities – Contradictory and confusing directions.

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, referred to.
Aust Dig Appeal and New Trial [177]

REPRESENTATION:

Counsel:
             Appellant:  D J Porter QC and J F Matthews
             Respondent:  K B Procter SC
Solicitors:
             Appellant:  Jo Matthews
             Respondent:  Murdoch Clarke

Judgment Number: [2006] TASSC 4
Number of paragraphs: 80

Serial No 4/2006
File No FCA 95/2005

DEBORAH KATHERINE CARNEY v ROBERT NEWTON

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD CJ
EVANS J
BLOW J
15 February 2006

Orders of the Court

Appeal allowed.
Judgment entered on 5 December 2005 is set aside.
There will be a new trial of action no 618/2004.

Serial No 4/2006
File No FCA 95/2005

DEBORAH KATHERINE CARNEY v ROBERT NEWTON

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD CJ
EVANS J
BLOW J
15 February 2006

Introduction

This appeal is brought against a judgment for the respondent following a jury trial. The grounds of appeal are confined to claimed errors by the learned trial judge in his directions to the jury.

It is a very sad case. In November 2002, the appellant was diagnosed with a node positive carcinoma of the right breast. The cancer had spread to the lymph nodes and beyond. The appellant's life expectancy is very short.

The appellant's case at trial

Both the appellant and the respondent are general medical practitioners. In about 1993, the latter became the former's general practitioner. By her statement of claim the appellant pleaded that she consulted the respondent on 26 January 2002. She did so in order to have a general medical check-up prior to attempting the conception of her second child. This is known as a "well-woman check". In the course of the examination, the respondent examined the appellant's breasts. All these facts are admitted on the pleadings.

The appellant pleaded and gave evidence to the effect that the respondent said that he detected what he described as a "gritty" area in the upper outer quadrant of the right breast. The appellant claimed that the respondent also said, "We'll just keep an eye on that. In your age group it's likely to be a fibro-adenoma and nothing to worry about. Just keep an eye …", but advised no further investigations or treatment. The appellant said that she then felt the area referred to and felt some freely moving tiny lumps like grains of half cooked rice.

After the consultation on 26 January 2002, the appellant undertook regular…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carney v Newton

Details

AGLC: Carney v Newton [2006] TASSC 4
Case: [2006] TASSC 4
Decision Date: 15 February 2006

CaseChat Overview and Summary

In the case of Carney v Newton, the matter came before the court of appeal to determine whether the trial judge had provided misleading or incomplete directions to the jury, which could potentially have resulted in a miscarriage of justice. The appeal centred on the trial of a personal injury claim, where the plaintiff, Carney, alleged that the defendant, Newton, was negligent in causing injuries. The court of appeal was tasked with assessing whether the trial judge's directions to the jury were contradictory or confusing, which could have led to an unjust outcome.

The primary legal issue before the court was whether the trial judge's directions to the jury regarding the assessment of damages and the standard of proof were sufficiently clear and free from contradictions. The court had to examine whether the directions, as given, could have led the jury to misapply the law or misunderstand the burden of proof. The court also had to consider whether the directions were comprehensive enough to enable the jury to make an informed decision based on the evidence presented.

In its decision, the court of appeal found that the trial judge's directions were indeed contradictory and confusing. The court highlighted several instances where the directions were not only unclear but also potentially misdirected the jury on fundamental aspects of the law. The court concluded that these deficiencies in the directions had the potential to affect the outcome of the trial, thereby warranting a new trial to ensure that the plaintiff received a fair assessment of their claim. The court did not find it necessary to address other potential grounds for appeal, as the issues with the directions were sufficient to warrant a new trial.

As a result of the findings, the appeal was allowed, and the case was remitted to the trial court for a new trial. The court did not make any further orders beyond directing that the case be retried to ensure a fair and just outcome for the parties involved.

Orders