The appellants were the defendants in the court below. The respondent was the plaintiff. I shall refer to the parties as plaintiff and defendants.
The plaintiff brought proceedings in May 1994 against the defendants claiming damages for personal injuries said to have been occasioned to the plaintiff by reason of the professional negligence of the defendants. The first defendant is an orthopaedic surgeon and the second defendant is a neurosurgeon.
Whilst these proceedings have been brought in the name of the plaintiff they were brought at the instigation of Comcare Australia (“Comcare”), which is a statutory authority established pursuant to s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) (“the Act”).
Paragraph 2 of the plaintiff’s Statement of Claim (which is not admitted in the defendants’ defence) asserts:
“2..... These proceedings are brought by the plaintiff in his own right and for his own benefit and in the name of the Plaintiff by Comcare Australia pursuant to Section 50 of the Safety Rehabilitation and Compensation Act 1988.”
Section 50 of the Safety, Rehabilitation and Compensation Act 1998 (Commonwealth) relevantly provides:
“(1) Where:
(a) an amount of compensation under this Act:
(i)is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or
(ii)is paid for the benefit of a dependant of a deceased employee in respect of an injury that resulted in the death of the employee;
(b)the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage or death; and
(c)proceedings against that person for the purpose of recovering such damages have not been instituted by the employee or by or for the benefit of the dependant, or have been so instituted but have been discontinued or have not been properly prosecuted;

.................. Comcare may institute proceedings or fresh proceedings against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the proceedings, as the case requires.”

Initially the plaintiff was represented by the Australian Government’s solicitor and counsel, Mr R Cameron and Mr P Allen. During the trial the plaintiff admitted that he had told lies in his examination-in-chief about matters relating to his condition and capacity.
The learned Trial Judge warned him about matters of self incrimination and after that time he refused to answer some questions on the ground that the answers might tend to incriminate him. The Trial Judge then made an order that the plaintiff should be separately represented because…

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 Hillier & Carney v Lucas

Details

AGLC: Hillier & Carney v Lucas [2000] SASC 331
Case: [2000] SASC 331
Decision Date: 24 October 2000

CaseChat Overview and Summary

The appeal was brought by two surgeons, Mr Hillier and Mr Carney, against the judgment of the trial judge who had found them liable for the negligence of their conduct and awarded the plaintiff damages. The surgeons appealed against the finding of negligence and the assessment of damages. The surgeons claimed that the finding of negligence was against the evidence and the weight of the evidence. They also claimed that the assessment of damages was excessive and the award of interest was inappropriate. The appeal was allowed and the judgment was set aside. The surgeons were found not liable for negligence and the damages awarded were excessive. The appeal was allowed because the plaintiff had failed to establish negligence against the defendants. The costs of the trial and appeal were to be determined by the parties.

Orders