Laxy, E.M. v IBM Australia Ltd - [1992] FCA 164

Re: EUGENIA MARIA LAXY
And: IBM AUSTRALIA LIMITED
No. G27 of 1991
FED No. 164
Appeal - Evidence
(1992) 35 FCR 79

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Ryan(2) and Higgins JJ.(2)

CATCHWORDS

Appeal - damages - personal injury - findings of fact by Judge - review by appellate Court - influence of demeanour.

Evidence - witnesses - cross-examination - absence of cross-examination on conflicting medical opinions - allegation of malingering - rule in Browne v. Dunn - application of rule.

Warren v Coombes (1979) 142 CLR 531

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Abalos v Australian Postal Commission (1990) 96 ALR 354

Seymour v ABC (1977) 19 NSWLR 219

Browne v Dunn (1893) 6 R 67 (HL)

Precision Plastics Pty Ltd v De Mir (1975) 132 CLR 362

HEARING

CANBERRA

#DATE 2:4:1992

Counsel for the Appellant: Mr R. Williams, QC with Mr R. Crowe

Solicitors for the Appellant: Pamela Coward and Associates

Counsel for
the Respondent: Mr J. Maconachie, QC with Mr J. Purnell

Solicitors for the
Respondent: Snedden Hall and Gallop

ORDER

1. The appeal be allowed.

2. The judgment entered on 15 May 1991 be set aside insofar as damages in respect of the third incident on the 29th day of September 1987 were assessed in the sum of $56,122.46.

3. There be a new trial limited to the issue of damages in respect of the third incident on the 29th day of September 1987.

4. The judgment entered on 15 May 1991 be otherwise affirmed.

5. The respondent pay the appellant's costs of this appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The circumstances giving rise to the present appeal, which is limited to the quantum of damages properly referable to the third of three incidents which occurred on 23 September 1985, 10 April 1986 and 29 September 1987 in the course of the appellant's employment by the respondent and for which the respondent has been held liable in negligence, are set out in the judgment to be delivered by the other members of the Court and I need not re-state them.

Although he was satisfied that the appellant injured her back in the September 1987 incident in much the way she described in her oral evidence and that she suffered a severe episode of lower back pain in the same part of her back as in the two previous incidents, the trial judge was faced with the task of determining the extent to which the pain and disabilities of which the appellant complained were the result of that incident. An essential step in determining that question, having regard to the way in which the case was presented, was to make an assessment of the appellant and this his Honour proceeded to do. That such an assessment was essential is apparent when it is realised that the medical reports upon which the…

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 Laxy, E.M. v IBM Australia Ltd

Details

AGLC: Laxy, E.M. v IBM Australia Ltd [1992] FCA 164 ((1992) 35 FCR 79)
Case: [1992] FCA 164
Decision Date: 02 APRIL 1992

CaseChat Overview and Summary

In the case of Laxy v IBM Australia Ltd, the plaintiff, E.M. Laxy, appealed against the decision of the Federal Court of Australia. Laxy, a former employee, sought damages for personal injuries sustained during his employment, specifically three incidents occurring on September 29, 1987. The lower court had assessed damages for these incidents, but Laxy contested the quantum of damages awarded for the third incident. IBM Australia Ltd, the respondent, defended the original assessment.

The central legal issue before the court was whether the lower court's assessment of damages for the third incident was correct, and whether the trial judge's observations on the plaintiff's demeanour should have influenced the findings. The court had to determine if the trial judge’s demeanour-based findings were justified and whether these findings warranted a revision of the damages awarded.

The appellate court found that the trial judge’s observations regarding the plaintiff's demeanour had unduly influenced the assessment of damages. The appellate court noted that such observations should not have played a significant role in determining the credibility and the extent of the plaintiff's injuries. Consequently, the court held that the damages awarded for the third incident were excessive. The court allowed the appeal, set aside the judgment concerning the damages for the third incident, and ordered a new trial limited to the issue of damages for this incident. The court affirmed the rest of the judgment and ordered the respondent to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment entered on 15 May 1991 be set aside insofar as damages in respect of the third incident on the 29th day of September 1987 were assessed in the sum of $56,122.46.

3. There be a new trial limited to the issue of damages in respect of the third incident on the 29th day of September 1987.

4. The judgment entered on 15 May 1991 be otherwise affirmed.

5. The respondent pay the appellant's costs of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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