Keith v Gal

Case [2013] NSWCA 339


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Keith v Gal [2013] NSWCA 339
Hearing dates:30 July 2013
Decision date: 15 October 2013
Before: 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
Legislation Cited: Suitors' Fund Act 1951
Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130
Mifsud v Campbell (1991) 21 NSWLR 725
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Palmer v Clarke (1989) 19 NSWLR 158
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Category:Principal judgment
Parties: 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

  1. 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.

  1. Mr Keith commenced proceedings in the District Court for recovery of damages for his injuries. For…

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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.]

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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