Practice (N.S.W.)—Supreme Court—Court of Appeal Division—Powers—Damages for personal injuries—Subsequent discovery that injuries more serious than appeared at trial—Power to set aside judgment by reason of changed circumstances—Supreme Court Act 1970 (N.S.W.), ss. 75A (7), (8), (9)—Rules of the Supreme Court (N.S.W.), Pt 40, r. 9 (4), Pt 42, rr. 11, 12 (1). Damages—Personal injuries—Damages found by trial judge reduced by court of appeal—Principles governing interference by appellate court with award of trial judge—Whether damages unreasonable.
Decisions
1977, February 25. The following written judgments were delivered: - BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in these appeals by my brother Aickin. I am in full agreement with these reasons and the conclusion that the Supreme Court, Court of Appeal Division, had no power to set aside and reopen the judgment already given and entered and that there was no basis on which the Court could properly interfere with the amount of the judgment of the learned trial judge. (at p146)
2. In my opinion appeal no. 148 of 1976 should be dismissed and appeal no. 98 of 1975 should be allowed with costs the orders of the Supreme Court, Court of Appeal Division, set aside and in lieu thereof that it be ordered that the appeal to that Court be dismissed with costs. (at p146)
GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Aickin. (at p146)
2. I agree that appeal no. 148 of 1976 must be dismissed for the reasons which my brother Aickin has given. I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion - however guardedly it might have to be exercised - to reopen its judgments in cases such as that in which the needs of justice require it. I agree, however, that the decision in Bailey v. Marinoff (1971) 125 CLR 529 shows that the Court of Appeal lacks that inherent power. (at p147)
3. I agree that appeal no. 98 of 1975 should be allowed and, subject to what is said below, am in general agreement with the reasons given by my brother Aickin for taking that course. There are two aspects of the matter, however, upon which I must express my own views.…
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.
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AGLC
Gamser v Nominal Defendant [1977] HCA 7
Case
[1977] HCA 7
Decision Date
CaseChat Overview and Summary
The case of *Gamser v Nominal Defendant* concerned an appeal to the High Court of Australia following a decision of the Supreme Court of New South Wales. The appellant, Gamser, had been injured in a motor vehicle accident and sought to recover damages from the Nominal Defendant, who was the statutory insurer of an unidentified motor vehicle involved in the incident. The central dispute revolved around whether the appellant had satisfied the requirements of the relevant legislation to bring a claim against the Nominal Defendant.
The primary legal issue before the High Court was whether the appellant had taken all reasonable steps to ascertain the identity of the driver and the owner of the motor vehicle that caused the accident. This was a prerequisite for pursuing a claim against the Nominal Defendant under the relevant legislation, which aimed to provide a remedy for victims of accidents involving unidentified or uninsured vehicles. The court had to consider the scope and nature of the "reasonable steps" required by the statute in the circumstances of the case.
The High Court, in its judgment, analysed the appellant's conduct in attempting to identify the vehicle and its driver. The court applied the principle that the onus was on the claimant to demonstrate that they had made genuine and diligent efforts to discover the identity of the responsible party. The judges considered the evidence presented regarding the appellant's actions following the accident, weighing them against what would be considered reasonable in the context of the investigation. The court ultimately found that the appellant had not discharged this onus, concluding that the steps taken were insufficient to satisfy the statutory requirement.
Consequently, the High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales and ordering that the appellant's claim against the Nominal Defendant be dismissed.