Martin v Rowling

[2005] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

Martin v Rowling & Anor [2005] QCA 128

PARTIES:

JULANNE MARTIN
(plaintiff/appellant)
v
HELEN ROWLING
(first defendant)
SUNCORP METWAY INSURANCE LTD
ACN 075 695 966

(second defendant/respondent)

FILE NO/S:

Appeal No 5840 of 2004
Appeal No 8644 of 2004

SC No 3606 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury – Quantum Only

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2004

JUDGES:

McMurdo P, Fryberg and Mullins JJ

Separate reasons for judgement of each member of the Court, Fryberg and Mullins JJ concurring as to the orders made, McMurdo P dissenting

ORDER:

1. The appeal in Appeal No 5840 of 2004 is allowed

2. The judgment in favour of the appellant given on 9                 June 2004 is set aside

3. The orders for costs made on 8 September 2004 are set     aside

4. The proceeding is remitted to the Trial Division for a new trial

5. Each party is given leave to make written submissions with respect to costs orders in respect of Appeal No 5840 of 2004 and the order for costs in respect of the trial of the proceeding that took place in February 2004 within 10 days of the publication of the reasons for judgment

6. The appeal in Appeal No 8644 of 2004 is dismissed

7. The appellant must pay the respondent’s costs of Appeal No 8644 of 2004 and the costs of the application to obtain leave to appeal from the orders for costs made on 8 September 2004 to be assessed

CATCHWORDS:

EVIDENCE – WITNESSES – where respondent’s expert witness gave medical evidence that, if accepted, was damaging to appellant’s case – where that medical evidence was not put to appellant in cross-examination – where trial judge relied on that medical evidence – whether rule in Browne v Dunn breached

PROCEDURE – JUDGMENTS AND ORDERS – STATEMENT OF REASONS FOR DECISION –  where trial judge made finding on the basis of respondent’s expert medical evidence and rejected evidence given by appellant and appellant’s expert medical evidence – whether trial judge failed to give any or adequate reasons for finding – whether the appellant had a justifiable sense of grievance about the reasoning of trial judge

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited

Browne v Dunn (1893) 6 R 67, applied

COUNSEL:

S S W Couper QC, with G R Mullins, for the appellant

K N Wilson SC, with R F King-Scott, for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant

Jensen McConaghy for the respondent

1. McMURDO P:  I gratefully adopt the statement of the relevant facts and issues fully set out in the reasons for judgment of Mullins J.  I will only repeat or add to these to explain my reasons for reaching a different conclusion, dismissing the appeal.

1. The plaintiff appellant, Ms Martin's, primary contention is that the learned trial judge failed to give adequate reasons in his decision…