De Groot v The Nominal Defendant

Case [2005] NSWCA 61

NEW SOUTH WALES COURT OF APPEAL

CITATION:      De Groot v The Nominal Defendant [2005]  NSWCA 61

FILE NUMBER(S):
40998/02; 41166/03

HEARING DATE(S):               07-10/3/2005

JUDGMENT DATE: 15/12/2005

PARTIES:
Daniel Rory De Groot - Appellant
The Nominal Defendant - Respondent

JUDGMENT OF:       Giles JA Bryson JA Gzell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          2012/01

LOWER COURT JUDICIAL OFFICER:     Gibb DCJ

COUNSEL:
L. King SC, P. McGuiness, J. Priestley - Appellant
J. Poulos QC and J. Morris - Respondent

SOLICITORS:
Conroy & Stewart - Appellant
Abbott Tout - Respondent

CATCHWORDS:
NEGLIGENCE - Motor Vehicle - The plaintiff aged 4 as passenger was injured by wheel cleat from unidentified vehicle travelling in opposite direction - challenges to DCJ's findings on negligence and on extent and nature of injury and continuing disabilities - numerous factual issues on liability and damages - consideration of - mitigation of damages MAA s.39 where infant's treatment decided by parent - allowance under s.45 of MAA for sums paid by insurer where payments exceeded damages assessed - claim for special order for costs under Calderbank offer - claim for order for costs against plaintiff's legal representatives.

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW) s 98
District Court Act 1973 (NSW) ss 127(1)(c), 148B, 148E
District Court Rules 1973 (NSW) Pt 39A r 14
Motor Accidents Act 1988 (NSW) ss 39, 45, 70A, 79; Sch 4 Pt 7 cl 17 (7A)
Motor Accidents (Amendment) Act 1989 (NSW) No. 47
Motor Accidents (Amendment) Act 1995 (NSW) No. 66
Supreme Court Act 1970 (NSW) s 75A

DECISION:
(1) Appeal dismissed with costs
(2) Upon the Summons for leave to cross-appeal
     (a) grant leave to cross-appeal with respect to liability
     (b) direct that Notice of Cross-Appeal be filed and served within 7 days
     (c) save as aforesaid, dismiss the Summons
(3) Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40998/02
DC 2012/01

GILES JA
BRYSON JA
GZELL J

15 December 2005

DANIEL RORY DE GROOT (an infant by his tutor Arlena Van Oosten) v THE NOMINAL DEFENDANT

Judgment

  1. GILES JA:  Subject to the following additional observations, for the reasons given by Bryson JA and Gzell J orders should be made as proposed by Bryson JA.

  2. In his consideration of Ground 4, Bryson JA refers to Professor Werry’s opinion to the effect that the neuro-psychological testing purporting to show the appellant’s pre-accident ability was unreliable.  The judge accepted that opinion. 

  3. Professor Werry said that the testing was designed primarily to measure current function and ability, although accepting also pre-injury ability “in part”.  He did not consider that great reliability could be placed on the wide-ranging tests administered by Ms Packer, describing one of them as “quick and dirty”.  He said that the more comprehensive Weschsler test administered by Dr Boon was “subject to considerable error”, that it did not permit deduction of “pre-morbid” ability with 100 per cent accuracy,…

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AGLC
De Groot v The Nominal Defendant [2005] NSWCA 61
Case
[2005] NSWCA 61
Decision Date

CaseChat Overview and Summary

This case concerned an appeal and a cross-appeal arising from a District Court decision. The plaintiff, a child aged four at the time of the incident, was injured by a wheel cleat from an unidentified vehicle travelling in the opposite direction. The appeal challenged the trial judge's findings on negligence and the extent and nature of the plaintiff's injuries and continuing disabilities. The cross-appeal sought to challenge the finding on liability.

The primary legal issues before the court were whether the trial judge erred in her findings regarding the causal link between the accident and the plaintiff's Attention Deficit Disorder (ADD), and whether the plaintiff had sustained a significant brain injury with relevant long-term sequelae. The court also considered the plaintiff's contention that the trial judge's assessment of the medical evidence was insufficient or flawed.

The court's reasoning focused on the trial judge's extensive review of the medical evidence. The trial judge found that while the plaintiff had sustained a severe head injury, including cuts, bruising, a fractured skull, and a small residual scar on the brain, she rejected the opinions of the plaintiff's experts that this constituted a significant brain injury with relevant long-term consequences. The trial judge concluded that the ADD was not caused by a brain injury sustained in the accident, finding only a mild or trivial brain injury with minimal permanent damage and no relevant sequelae. The court found the trial judge's reasons to be full and well-considered, demonstrating a thorough assessment of the evidence presented by both parties.

The appeal was dismissed with costs. Leave to cross-appeal on the issue of liability was granted, but the cross-appeal itself was subsequently dismissed with costs.

Orders

Orders of the court

(1) Appeal dismissed with costs

(2) Upon the Summons for leave to cross-appeal

(a) grant leave to cross-appeal with respect to liability

(b) direct that Notice of Cross-Appeal be filed and served within 7 days

(c) save as aforesaid, dismiss the Summons

(3) Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The terms in which Ground 2 is cast do not appropriately reflect the matter for decision by the Trial Judge, which was whether the appellant’s ADD was caused by the injury which he suffered on 3 March 1995. The written submissions in support of Ground 2 included extended attacks on opinions of Dr Jones and Professor Werry which were generally adverse to the appellant’s suffering from any continuing disability relating to brain injury. It was for the appellant to establish and obtain a finding that his ADD or any other disability was caused by brain injury. The Trial Judge found (Red 1/229V) “only one matter was ultimately not of controversy in this case: that Daniel had Attention Deficit Disorder….the real issue is what is the source of that Attention Deficit Disorder. Professor Broe attributed the Attention Deficit Disorder to brain injury and described it as one ‘secondary’ to brain injury, as did Dr Johnson.” Her Honour also found (Red 1/232 C-D):Daniel no longer suffers from hyperactivity, although his attentional difficulties continue. He suffers from Attention Deficit Disorder.”Her Honour said (Red 1/234L-V)Did Daniel sustain a relevant brain injury in the March accident? Daniel sustained a severe head injury. The real issue is whether he also sustained a significant brain injury, and whether there are any long-term sequelae other than the 6mm scar which various specialists detected on CT scans and MR images … The plaintiff contends that Daniel sustained a significant brain injury, and relied upon the opinions of Professor Broe, Dr Buckley and Dr Johnson. For the various reasons discussed in this judgment, I reject the opinion of each in this respect”. Her Honour’s consideration, which was extensive, of the effect of the evidence, principally the medical evidence, led to the following dispositive findings (Red 1/246 A-E):Conclusion re injury and disabilities. I find that Daniel sustained a severe head (as distinct from brain) injury in the March 1995 accident. The head injuries were a blow causing some cuts, bruising and a fractured skull. The immediate sequelae included hospitalisation for a week (Grafton Base Hospital and air transfer to The Royal Children’s Hospital, Brisbane) and an operation to repair the depressed fracture. The effects included a convalescent period and a period of 3 months when Daniel suffered adversely from the effects of Dilantin intoxication. In addition, Daniel has some small residual scarring, a healed fracture of the skull and a healed scar (gliosis) of some six millimetres on the parietal area of the brain. He also has some minor facial scars. I find that Daniel sustained what various specialists called a mild or trivial brain injury, with minimal resulting permanent damage to the brain, and no relevant sequelae. The Trial Judge’s statements of reasons was full and was in terms which show that it was fully considered. It might have been thought to be too long, if one had not heard and read submissions contending that it did not say enough. The reasons included lengthy passages reviewing the evidence of each significant medical witness, the history available to the witness, the use made of the history, and the opportunities of the witness to obtain history and to make observations. Her Honour’s disposition of this issue depends on findings on the evidence of Professor Broe and Dr Johnson as least as much as it depends on findings on the evidence of witnesses called by the respondent.

Ratio Decidendi

Legal Principle Established

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