Keith v Gal

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.