Daw v Toyworld (NSW) Pty Ltd

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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…

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Details
Case
[2001] NSWCA 25
Decision Date

CaseChat Overview and Summary

The appeal in *Daw v Toyworld (NSW) Pty Ltd* concerned a personal injury claim brought by the plaintiff, Daw, against the defendant, Toyworld (NSW) Pty Ltd. The plaintiff sought a new trial, alleging that the trial judge had erred in a manner that occasioned a substantial wrong or miscarriage of justice. The appeal was heard in the Supreme Court of New South Wales by Priestley, Sheller, and Heydon JJA.

The central legal issues before the Court of Appeal were whether the trial judge had erred in admitting certain evidence, specifically documents of unknown origin and an unproven doctor's history as part of expert evidence, and whether the lack of objection to the tender of this evidence at trial precluded the plaintiff from raising these issues on appeal. The Court was required to consider the application of the *Supreme Court Rules* Pt 51 r 25 and ss 55(1), 56(2), and 60 of the *Evidence Act 1995* (NSW) in determining whether a substantial wrong or miscarriage had occurred.

The Court of Appeal dismissed the appeal. While the precise reasoning is not detailed in the provided text, the outcome suggests that the Court found no substantial wrong or miscarriage of justice had been occasioned by any alleged errors of the trial judge. This likely involved a consideration of whether the evidence admitted, despite its alleged defects, did not ultimately prejudice the plaintiff's case to the extent of requiring a new trial, or whether the failure to object at trial was a significant factor in the Court's decision.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

Appeal dismissed; the appellant is to pay the responent's costs of the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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