Majkic v Bonnano

[2008] NSWCA 253

New South Wales

Court of Appeal

CITATION:	Majkic v Bonanno [2008] NSWCA 253
HEARING DATE(S):	26/9/08
JUDGMENT DATE:	16 October 2008
JUDGMENT OF:	Giles JA at 1; Bell JA at 2; Sackville AJA at 30
DECISION:	1. Allow the appeal. 2. Set aside the verdict and judgment of the District Court given on 13 December 2007 and remit the proceedings to the District Court for determination of the quantum of the appellant’s damages. 3. The respondent is to pay the appellant’s costs of the hearing below and of the appeal. The respondent is to receive an indemnity certificate under s 6 of the Suitors’ Fund Act 1951 (NSW) if qualified.
CATCHWORDS:	Insufficiency of reasons - failure to make critical factual findings
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Jones v Bradley [2003] NSWCA 81 Larson v Commissioner of Police [2004] NSWCA 126
PARTIES:	Zelfko Majkic (Appellant) Roslyn Angela Bonanno (Respondent)
FILE NUMBER(S):	CA 40924/07
COUNSEL:	Mr K Andrews (Appellant) Mr B G Smith (Respondent)
SOLICITORS:	Keddies (Appellant) Sparke Helmore (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	8472/02
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	13/12/07

CA 40924/07
DC 8472/02

GILES JA
BELL JA
SACKVILLE AJA

Thursday 16 October 2008

Zelfko Majkic v Roslyn Angela Bonanno

Judgment

1 GILES JA: I agree with Bell JA.

2 BELL JA: This is an appeal from the award of $17,261 damages for personal injuries suffered when the appellant was struck by a motor vehicle. Judgment was given in the District Court on 13 December 2007. Liability had been determined at an earlier hearing.

3 Not long after the accident, the appellant underwent an MRI scan of his back, which revealed a significant T11/T12 disc protrusion. A critical issue at the trial was whether the accident caused or materially contributed to the discal injury. The appellant was the only witness who gave oral evidence. A number of medical reports were tendered in each case. None of the authors of the reports were required for cross-examination. There was a marked divergence of opinion on the question of causation between the medical opinion relied upon by the appellant and that relied upon by the respondent.

4 The Notice of Appeal contains 16 grounds. With the exception of grounds 2, 9 and 10, which concern the admission of the statement of reasons of Dr Dowda, a medical assessor under the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act), Mr K Andrews, who appeared for the appellant at trial and on the appeal, distilled the grounds into three:

1. His Honour’s reasons revealed an inadequate process of reasoning.
2. The judgment contained factual errors.
3. The findings were not supported by the reasoning.

5 The primary judge identified causation and the extent of the appellant’s injuries as the central issues. His Honour accepted and adopted the analysis of the medical evidence set out in the written submissions filed on the respondent’s behalf,…