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Kessey v Golledge

Kessey v Golledge

Case [1999] NSWCA 424 26 November 1999

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CITATION: Kessey v Golledge [1999] NSWCA 424

FILE NUMBER(S): CA 40261/98

HEARING DATE(S): 02/11/99

JUDGMENT DATE:
26 November 1999

PARTIES :

Robin Joseph Kessey - Appellant
Kathryn Joy Golledge - Respondent

JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Rolfe J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 5406/97; 13693/96

LOWER COURT JUDICIAL OFFICER: Sinclair DCJ, Dowd J, Master Greenwood

COUNSEL: Mr J. Poulos QC/Mr D.L. Ronzani - Appellant
Mr B.F. Murray QC/Mr J.P. Sewell - Respondent

SOLICITORS: Dunhill Madden Butler - Appellant
Owen Hodge & Son - Respondent

CATCHWORDS: Appeal from Interlocutory Orders; Appeals against Master's decision extending time to bring proceedings under Motor Accidents Act 1988 and against single Judge's decision dismissing that appeal dismissed.; Appeal From Trial Judge's Assessment of Damages; (a) Consideration of novus actus interveniens; (b) Amount to be deducted conformably with principle in Kempsey District Hospital v Thackham; (c) Generally parties should be held on appeal to the way in which the case was conducted at first instance.

ACTS CITED: Motor Accidents Act 1988
Supreme Court Act 1970
Workers Compensation Act 1987

CASES CITED:
Ramton v Cassin (1995) 38 NSWLR 88; (1996) 70 ALJR 558
Salido v The Nominal Defendant (1993) 32 NSWLR 524
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Oldfields Pty Limited v Alfar (1996) 70 ALJR 560
McKew v Holland & Hannon & Cubitts (Scotland) Limited [1969] 3 All ER 1621
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Multicon Engineering Pty Limited v Federal Airports Corporation (Court of Appeal, 26 August 1997, unreported)
The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164
Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Coulton v Holcombe (1986) 162 CLR 1

DECISION: (a) Appeal from decision of Master Greenwood dismissed.; (b) Appeal from the decision of Dowd J dismissed.; (c) Appeal from decision of Sinclair DCJ upheld in part.; (d) In lieu of judgment for the respondent in the sum of $412,046 there be judgment for the respondent in the sum of $345,074.25.; (e) The appellant pay the respondent's costs of each appeal.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40261 of 1998
CLD 13693 of 1996
DC 5406 of 1997

SHELLER JA

BEAZLEY JA

ROLFE AJA

FRIDAY, 26 NOVEMBER 1999

KESSEY v GOLLEDGE

The plaintiff/respondent was involved in a motor vehicle accident in July 1992 as a result of the defendant/appellant’s admitted negligence. This aggravated and exacerbated an existing but essentially symptom free condition of spondylolisthesis, which necessitated a lumbar fusion in late 1992 and a revision of that operation in March 1994. The appellant did not contend that these procedures were not causally related to the accident.
The respondent failed to bring proceedings within the three year time limitation provided by the Motor Accidents…

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.

Continue reading Kessey v Golledge

Details

AGLC: Kessey v Golledge [1999] NSWCA 424
Case: [1999] NSWCA 424
Decision Date: 26 November 1999

CaseChat Overview and Summary

The parties to this matter were Kessey (the appellant) and Golledge (the respondent). The dispute concerned an appeal against interlocutory orders made by a Master extending time to bring proceedings under the *Motor Accidents Act 1988* (NSW), and an appeal against a single judge's decision dismissing that earlier appeal. Further appeals were also brought against a trial judge's assessment of damages. The appeals were heard by Sheller and Beazley JJA, and Rolfe J.

The court was required to determine several legal issues. These included whether the Master erred in extending time for the respondent to bring proceedings under the *Motor Accidents Act 1988*. The court also had to consider whether the trial judge erred in their assessment of damages, specifically in relation to the application of the principle of *novus actus interveniens* and the amount to be deducted in accordance with the principle established in *Kempsey District Hospital v Thackham*. Finally, the court considered the general principle that parties should be held on appeal to the way in which the case was conducted at first instance.

The court dismissed the appeal against the Master's decision to extend time and the appeal against the single judge's dismissal of that appeal. However, the appeal against the trial judge's assessment of damages was upheld in part. The court reasoned that while the initial assessment of damages was flawed, particularly concerning the deductions, the parties should generally be held to the conduct of the case at first instance. Consequently, the judgment for the respondent was varied from $412,046 to $345,074.25. The appellant was ordered to pay the respondent's costs of each appeal.

Orders

Orders of the court

(a) Appeal from decision of Master Greenwood dismissed.; (b) Appeal from the decision of Dowd J dismissed.; (c) Appeal from decision of Sinclair DCJ upheld in part.; (d) In lieu of judgment for the respondent in the sum of $412,046 there be judgment for the respondent in the sum of $345,074.25.; (e) The appellant pay the respondent's costs of each appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Kessey v Golledge [1999] NSWCA 424

Most Recent Citation

Bux Global Limited v Hooke [2018] FCA 882

Cases citing this decision · 10 of 10 shown

Dal v Chol
[2018] NSWCA 219 Para 5

…prior to the 2013 collision. No submission to that effect was advanced on appeal or before the primary judge. This Court held in Kessey v Golledge [1999] NSWCA 424 at [46] that the defendant bore the onus of adducing evidence that the plaintiff’s incapacity at trial was caused or contributed to by a second acciden…
Bux Global Limited v Hooke
[2018] FCA 882 Para 1

…cessful, would obviate the need for a trial in the underlying proceeding. The principles, as submitted by Mr Young QC, are as follows: (1)In 1999, in Kessey v Golledge (1999) 30 MVR 95, Rolfe AJA (with whom Sheller and Beazley JJA agreed) said (at [40]-[41]), inter alia , that: [40] The general considerations in relation t…
Helen Scaife v Angela Coceanig
[2011] NSWDC 147 Para 1

…Justice Ipp, in Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, agreed. He referred to the Court's decision in Kessey v Golledge (1999) 30 MVR 95, where Justice Rolfe said:…
Moskios v Splendid Developments Pty Ltd; Bishay v Moskios
[2011] NSWCA 210 Para 1

…ntial prospects of success and if, if the appeal were to be successful, the parties would be spared the time and trouble of a trial: Kessy v Golledge [1999] NSWCA 424 at [41]; Durant at [67]. However as Handley JA said in Durant at [68]:…
Parmalat Australia Ltd v Cheadle
[2008] NSWWCCPD 39

…n injured worker must act “reasonably and carefully” and, if he or she does, then the second injury may be held to have resulted from the first ( Kessey v Golledge (1999) 30 MVR 95; [1999]NSWCA 424 at [66] (‘ Kessey ’));…
Bidner v Bridge
[2005] NSWSC 643

…Ors (unreported Windeyer J, 7 November 1994) House v The King (1936) 55 CLR 499 Itex Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207, [2001] NSWCA 442 Kessey v Golledge (1999) 30 MVR 95 Kleinwort Benson Ltd v Barbrak [1987] 1 AC 597 Parainga Mining & Exploration Co Pic v North Flinders Mines Ltd (1998) 165 CLR 452 Rust v Ba…
Falconer v Laird
[2003] NSWCA 114

…sbane Regional Health Authority v Taylor (1996) 186 CLR 541; Harding v Bourke (2000) 48 NSWLR 59; Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207; Kessey v Golledge (1999) 40 MVR 95; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; Rust v Barnes (1980) 2 NSWLR 726; Salido v The…
Itek Graphix Pty Ltd v Elliott
[2002] NSWCA 104

…[1995] 18 ACSR 413 Wentworth v Wentworth (Unreported, NSWCA, 23 November 1995) Brambles Australia Limited v Hall (Unreported, NSWCA, 8 November 1995) Kessey v Golledge (1999) 30 MVR 95 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 Tamworth Base Hospital v Durant [2000] NSWCA 209 Clifton Bricks Pty Limited v Gerla…
Itek Graphix Pty Limited v Elliott
[2001] NSWCA 442

…[1995) 18 ACSR 413 Wentworth v Wentworth (Unreported, NSWCA, 23 November 1995) Brambles Australia Limited v Hall (Unreported, NSWCA, 8 November 1995) Kessey v Golledge (1999) 30 MVR 95 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 Tamworth Base Hospital v Durant [2000] NSWCA 209 Clifton Bricks Pty Limited v Gerla…
Lolomanaia v Roads and Traffic Authority
[2000] NSWSC 412

…CLR 164 Caltex Tanker Co. (Aust.) Pty. Limited v. Kerr [1999] NSWCA 115 Franklins Self-Serve Pty. Limited v. Wyber [1999] NSWCA 390 Kessey v. Gollege [1999] NSWCA 424 Rogers (1994) 181 CLR 251 Van Raymer Pty. Limited t/as Bathurst Funeral & Cremation Services v. Higgins (1991) 24 NSWLR 661 Manser v. Spry (1994) 181…

View all 10 citing cases →

Cases cited in this decision · 9 of 9 shown

Franklins Self Serve Pty Ltd v Wyber
[1999] NSWCA 390

…The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1 DECISION: (a) Appeal from decision of Master Greenwood…
Queensland v JL holdings Pty Ltd
[1997] HCA 1

…g Pty Limited v Federal Airports Corporation (Court of Appeal, 26 August 1997, unreported) The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda P…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…v Cassin (1995) 38 NSWLR 88; (1996) 70 ALJR 558 Salido v The Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Oldfields Pty Limited v Alfar (1996) 70 ALJR 560 McKew v Holland & Hannon & Cubitts (Scotland) Limited [1969] 3 All ER 1621 Kempsey District Hospital…
Ramton v Cassin
[1996] HCATrans 108

…s conducted at first instance. ACTS CITED: Motor Accidents Act 1988 Supreme Court Act 1970 Workers Compensation Act 1987 CASES CITED: Ramton v Cassin (1995) 38 NSWLR 88; (1996) 70 ALJR 558 Salido v The Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Oldfields…
Oldfields Pty Limited v Alfar
[1995] NSWCA 343

…NSWLR 88; (1996) 70 ALJR 558 Salido v The Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Oldfields Pty Limited v Alfar (1996) 70 ALJR 560 McKew v Holland & Hannon & Cubitts (Scotland) Limited [1969] 3 All ER 1621 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Multi…
Coulton v Holcombe
[1986] HCA 33

…enden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1 DECISION: (a) Appeal from decision of Master Greenwood dismissed.; (b) Appeal from the decision of Dowd J dismissed.; (c) Appeal from decision of Sin…
Purkess v Crittenden
[1965] HCA 34

…1997, unreported) The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1 DECISIO…
Watts v Rake
[1960] HCA 58

…Corporation (Court of Appeal, 26 August 1997, unreported) The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Cou…
Suttor v Gundowda Pty Ltd
[1950] HCA 35

…ke (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1 DECISION: (a) Appeal from decision of Master Greenwood dismissed.; (b) Appeal from the decision of Dowd J dismiss…

Legislation cited in this decision · 3

Motor Accidents Act 1988 (NSW)
1 mention
Supreme Court Act 1970 (NSW)
1 mention
Workers Compensation Act 1987 (NSW)
1 mention

CITATION:	Kessey v Golledge [1999] NSWCA 424
FILE NUMBER(S):	CA 40261/98
HEARING DATE(S):	02/11/99
JUDGMENT DATE:	26 November 1999
PARTIES :	Robin Joseph Kessey - Appellant Kathryn Joy Golledge - Respondent
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Rolfe J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	5406/97; 13693/96
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ, Dowd J, Master Greenwood

COUNSEL:	Mr J. Poulos QC/Mr D.L. Ronzani - Appellant Mr B.F. Murray QC/Mr J.P. Sewell - Respondent
SOLICITORS:	Dunhill Madden Butler - Appellant Owen Hodge & Son - Respondent
CATCHWORDS:	Appeal from Interlocutory Orders; Appeals against Master's decision extending time to bring proceedings under Motor Accidents Act 1988 and against single Judge's decision dismissing that appeal dismissed.; Appeal From Trial Judge's Assessment of Damages; (a) Consideration of novus actus interveniens; (b) Amount to be deducted conformably with principle in Kempsey District Hospital v Thackham; (c) Generally parties should be held on appeal to the way in which the case was conducted at first instance.
ACTS CITED:	Motor Accidents Act 1988 Supreme Court Act 1970 Workers Compensation Act 1987
CASES CITED:	Ramton v Cassin (1995) 38 NSWLR 88; (1996) 70 ALJR 558 Salido v The Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Oldfields Pty Limited v Alfar (1996) 70 ALJR 560 McKew v Holland & Hannon & Cubitts (Scotland) Limited [1969] 3 All ER 1621 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Multicon Engineering Pty Limited v Federal Airports Corporation (Court of Appeal, 26 August 1997, unreported) The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1
DECISION:	(a) Appeal from decision of Master Greenwood dismissed.; (b) Appeal from the decision of Dowd J dismissed.; (c) Appeal from decision of Sinclair DCJ upheld in part.; (d) In lieu of judgment for the respondent in the sum of $412,046 there be judgment for the respondent in the sum of $345,074.25.; (e) The appellant pay the respondent's costs of each appeal.