Daw v Toyworld (NSW) Pty Ltd

Reported Decision: (2001) 21 NSWCCR 389

New South Wales

Court of Appeal

CITATION:	Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
FILE NUMBER(S):	CA 40427/99
HEARING DATE(S):	2 February 2001
JUDGMENT DATE:	22 February 2001
PARTIES :	Terrence Mervyn Daw (Appellant) Toyworld (NSW) Pty Ltd (Respondent)
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2502/98
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL:	G B Hall QC/A J Lidden (Appellant) M J Neil QC/G J Bellew (Respondent)
SOLICITORS:	Brydens (Appellant) Bruce & Stewart (Respondent)
CATCHWORDS:	Evidence - Credibility of plaintiff in personal injury claim - Whether new trial should be ordered - Whether trial judge erred - Whether substantial wrong or miscarriage occasioned by errors of trial judge - Documents of unknown origin - Lack of objection to tender of evidence - Unproven doctor's history as part of expert evidence - Supreme Court Rules Pt 51 r 25 - Evidence Act 1995 (NSW), ss 55(1), 56(2) and 60. ND -
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Browne v Dunn (1893) 6 R 67 Devries v Australian National Railways Commission (1993) 177 CLR 472 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 Ramsey v Watson (1961) 108 CLR 642 R v Masters (1992) 26 NSWLR 450 R v O'Halloran [2000] NSWCCA 528 R v Welsh (1996) 90 A Crim R 364
DECISION:	Appeal dismissed; the appellant is to pay the responent's costs of the appeal

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40427/99
DC 2502/98

PRIESTLEY JA
SHELLER JA
HEYDON JA

22 February 2001

DAW v TOYWORLD (NSW) PTY LIMITED

Evidence - Credibility of plaintiff in personal injury claim - Whether new trial should be ordered - Whether trial judge erred - Whether substantial wrong or miscarriage occasioned by errors of trial judge - Documents of unknown origin - Lack of objection to tender of evidence - Unproven doctor’s history as part of expert evidence - Supreme Court Rules Pt 51 r 25 - Evidence Act 1995 (NSW), ss 55(1), 56(2) and 60.

The appellant, who was the plaintiff at first instance, was employed by the respondent company and on 27 March 1990 he was injured whilst in that employ. The appellant claimed damages from the respondent for that injury, alleging at trial that the injury resulted from a carton falling onto him. The trial judge did not accept the appellant’s evidence, instead finding that the accident on that day was caused by his lifting of a carton. The plaintiff’s evidence in relation to back injuries and treatment prior to the accident was also disbelieved by the trial judge. A document was admitted into evidence (Exhibit 13) which stated that the appellant had experienced previous back problems and had undergone traction. Exhibit 13 was treated by the trial judge as the notes of a Dr Thurai on the appellant’s medical history. The appellant’s…