Keith v Gal

[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…