Emmett JA at [1]; Gleeson JA at [6]; Simpson J at [156]
Decision:
1. Appeal allowed.
2. Set aside the orders made by O'Toole DCJ on 4 May 2012.
3. Remit the matter to the District Court for a new trial on damages.
4. Costs of the first trial to abide the event of the second trial.
5. Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - grounds - failure to give adequate reasons - where limited cross-examination - where primary judge failed to resolve factual issues raised by lay and expert evidence - where primary judge's reasoning is seriously deficient - new trial required
DAMAGES - measure of damages - personal injuries - where liability admitted - whether pre-existing injuries were the cause of the appellants retirement
Clifford Keith (Appellant) Adrian Gal (First Respondent) Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs (Second Respondent)
Representation:
Counsel: D Murr SC with M Fraser (Appellant) J Turnbull with C Mulvey (Respondents) Solicitors: Brydens Compensation Lawyers (Appellant) Curwoods Lawyers (Respondents)
File Number(s):
2012/161730
Decision under appeal
Jurisdiction:
9101
Citation:
Clifford Keith v Adrian Gal and Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs
Date of Decision:
2012-04-27 00:00:00
Before:
O'Toole DCJ
File Number(s):
2008/316397
Judgment
EMMETT JA: On 25 July 2001, the appellant, Mr Clifford Keith, was injured when the vehicle he was driving collided with the rear of a tow truck that pulled abruptly into the traffic lane in which he was driving. The tow truck was being driven by the first respondent, Mr Adrian Gal. At that time, the tow truck was owned and operated by the second respondents, Carol and Darren Armstrong.
Mr Keith commenced proceedings in the District Court for recovery of damages for his injuries. For…
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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Details
AGLC
Keith v Gal [2013] NSWCA 339
Case
[2013] NSWCA 339
Decision Date
CaseChat Overview and Summary
The appeal in *Keith v Gal* concerned a dispute over damages for personal injuries. The appellant, Mr Keith, appealed against orders made by O'Toole DCJ in the District Court. The central issue on appeal was whether the primary judge had provided adequate reasons for his decision regarding the assessment of damages.
The Court of Appeal was required to determine whether the primary judge's reasons for judgment were seriously deficient, particularly in light of limited cross-examination and the need to resolve factual issues arising from both lay and expert evidence. Specifically, the court had to consider whether the primary judge had adequately addressed the question of whether pre-existing injuries were the cause of the appellant's retirement, a critical factor in the assessment of damages where liability had been admitted.
Emmett and Gleeson JJA, with whom Simpson J agreed, found that the primary judge's reasoning was indeed seriously deficient. They concluded that the failure to adequately resolve the factual disputes, particularly concerning the impact of pre-existing conditions on the appellant's retirement, meant that a new trial was required. The court allowed the appeal, set aside the previous orders, and remitted the matter to the District Court for a new trial on the issue of damages. The costs of the first trial were ordered to abide the event of the second trial, and the respondents were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by O'Toole DCJ on 4 May 2012.
3. Remit the matter to the District Court for a new trial on damages.
4. Costs of the first trial to abide the event of the second trial.
5. Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]