Keith v Gal

Case [2016] NSWCA 152


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Keith v Gal [2016] NSWCA 152
Hearing dates:30 November 2015
Decision date: 04 July 2016
Before: Meagher JA at [1];
Gleeson JA at [2];
Tobias AJA at [178]
Decision:

(1)   appeal allowed;

 

(2)   set aside the orders of the primary judge made on 5 December 2014 and Order 1 made on 25 February 2015;

 

(3) direct the parties to bring in Short Minutes of Order within 28 days of the date of these reasons in respect of the amount of the judgment to be entered in favour of the appellant consistently with these reasons, including any necessary orders under s 151Z of the Workers Compensation Act 1987 (NSW);

 

(4) reserve the question of interest on damages under s 137 of the Motor Accidents Compensation Act 1999 (NSW);

 

(5)   in the event that the appellant claims interest on damages:

 

(a)   the appellant file and serve within 14 days brief written submissions not exceeding 3 pages, together with any affidavit in support;

 

(b)   the respondents file and serve within a further 14 days brief written submissions in response not exceeding 3 pages, together with any affidavit in support;

 

(c)   direct that the issue of interest on damages be dealt with on the papers;

 

(6)   reserve the question of costs in this Court and in the District Court;

 

(7)   in default of agreement on costs:

 

(a)   the appellant file and serve within 14 days of these reasons proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

 

(b)   the respondents file and serve within a further 14 days their proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

 

(c)   the appellant file and serve within a further 7 days any brief written submissions in reply not exceeding 2 pages;

 (d)   direct that the issue of costs be dealt with on the papers.
Catchwords: TORTS - Negligence - Road accident cases – personal injury – damages governed by Motor Accidents Compensation Act 1999 – where appellant had extensive pre-existing and post-accident medical history – where employment terminated over three years after accident – where liability admitted and first appeal remitted the issue of damages – appeal from second trial – reassessment of damages – where doctors not provided with appellant’s full medical history – conflicting medical opinions – whether incomplete history materially impacted upon expert opinions – whether incomplete history justified rejection of expert opinion – whether aggravation of appellant’s pre-existing injuries continued after termination of appellant’s employment – whether trial judge in error in finding that any diminished capacity was not attributable to the injury – past economic loss – where residual earning capacity conceded by appellant in respect of claim for future economic loss – whether medical evidence demonstrated diminished earning incapacity independently of accident due to pre-existing symptoms and condition – attendant care services claim subject to s 141B MACA – whether temporal thresholds…

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AGLC
Keith v Gal [2016] NSWCA 152
Case
[2016] NSWCA 152
Decision Date

CaseChat Overview and Summary

This appeal concerned a claim for damages arising from a road accident, governed by the *Motor Accidents Compensation Act 1999* (NSW). The appellant, who had a significant pre-existing medical history, suffered personal injury in the accident. The respondent admitted liability, but the quantum of damages remained in dispute, particularly in light of the appellant's extensive medical history both before and after the accident, and the termination of his employment over three years after the incident. This was the second appeal concerning damages, following a remittal from a first appeal.

The central legal issues before the Court of Appeal were whether the trial judge erred in assessing damages. Specifically, the court had to determine if the incomplete medical history provided to expert witnesses materially impacted their opinions, and if this justified the rejection of those opinions. Further questions arose regarding whether the aggravation of the appellant's pre-existing injuries continued after his employment ceased, and if the trial judge was correct in finding that any diminished capacity was not attributable to the accident. The court also considered the appellant's claims for past and future economic loss, including whether medical evidence demonstrated diminished earning capacity independently of the accident, and the claim for attendant care services, which was subject to the temporal thresholds stipulated by s 141B of the Act.

The Court of Appeal found that the trial judge had erred in their assessment of damages. The court reasoned that the incomplete medical history provided to the experts was a significant issue that likely impacted the reliability of their opinions. The court also considered the evidence regarding the appellant's pre-existing conditions and their interaction with the injuries sustained in the accident, concluding that the trial judge's findings on causation and diminished capacity were not adequately supported by the evidence. The court allowed the appeal, setting aside the previous orders and directing the parties to bring in short minutes of order for the judgment amount, consistent with the court's reasons. The questions of interest on damages and costs were reserved, with directions for further submissions if agreement could not be reached.

Orders

Orders of the court

(1) appeal allowed;

(2) set aside the orders of the primary judge made on 5 December 2014 and Order 1 made on 25 February 2015;

(3) direct the parties to bring in Short Minutes of Order within 28 days of the date of these reasons in respect of the amount of the judgment to be entered in favour of the appellant consistently with these reasons, including any necessary orders under s 151Z of the Workers Compensation Act 1987 (NSW);

(4) reserve the question of interest on damages under s 137 of the Motor Accidents Compensation Act 1999 (NSW);

(5) in the event that the appellant claims interest on damages:

(a) the appellant file and serve within 14 days brief written submissions not exceeding 3 pages, together with any affidavit in support;

(b) the respondents file and serve within a further 14 days brief written submissions in response not exceeding 3 pages, together with any affidavit in support;

(c) direct that the issue of interest on damages be dealt with on the papers;

(6) reserve the question of costs in this Court and in the District Court;

(7) in default of agreement on costs:

(a) the appellant file and serve within 14 days of these reasons proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

(b) the respondents file and serve within a further 14 days their proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

(c) the appellant file and serve within a further 7 days any brief written submissions in reply not exceeding 2 pages;

(d) direct that the issue of costs be dealt with on the papers.

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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