(i) Appeal allowed; (ii) Judgment of the District Court of 3 April 2008 quashed; (iii) The appellant’s claim be remitted to the District Court for a re-trial limited to the question of damages; (iv) The respondents to pay the appellant’s costs.
CATCHWORDS:
APPEAL – approach taken by trial judge resulted in inadequate award of damages – trial judge failed adequately to assess appellant’s psychological/psychiatric condition – reliance placed upon psychiatrist’s report in assessing psychological/psychiatric condition misplaced – no proper basis for findings adverse to appellant – correct approach outlined – comparison of appellant’s pre-injury and post-injury functioning – credibility findings adverse to plaintiff not warranted on proper examination of evidence – evidence by witness unfairly discounted – failure by psychiatrist to diagnose post-injury psychological condition – failure to identify pre-injury psychological condition – reasoning unsustainable – matter remitted to District Court for re-trial limited to question of damages - DAMAGES – assessment of damages by trial judge for personal Injury sustained as a result of a dog attack – psychological injury
S Norton SC/M Fraser (Appellant) C Adamson SC/B Kelleher (Respondents)
SOLICITORS:
Brydens Law Office (Appellant) Moray & Agnew (Respondents)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 5495 of 2006
LOWER COURTJUDICIAL OFFICER:
O'Connor DCJ
LOWER COURT DATE OF DECISION:
3 April 2008
CA 40195/08
BASTEN JA SIMPSON J
31 July 2009
Penelope Jayne MASON v Antonio DEMASI & Anor
Judgment
1 BASTEN JA: The circumstances of this case are fully set out in the reasons of Simpson J, with which I agree. Given those circumstances, the difficulties facing the trial judge are not to be underestimated. Nevertheless, and indeed for that very reason, error might have been avoided had his Honour expressly identified and addressed those difficulties.
2 First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of…
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.
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Details
AGLC
Mason v Demasi [2009] NSWCA 227
Case
[2009] NSWCA 227
Decision Date
CaseChat Overview and Summary
The appeal concerned an assessment of damages for personal injury arising from a dog attack. The appellant, Mason, had brought proceedings in the District Court of New South Wales against the respondents, Demasi, seeking damages for injuries sustained. The trial judge had made findings adverse to the appellant regarding his psychological and psychiatric condition, which the appellant argued led to an inadequate award of damages.
The central legal issues before the Court of Appeal were whether the trial judge had adequately assessed the appellant's psychological and psychiatric condition, whether the reliance placed on a particular psychiatrist's report was misplaced, and whether there was a proper basis for the adverse credibility findings made against the appellant. The court was also required to consider whether the trial judge had unfairly discounted evidence from a witness and whether the psychiatrist's report adequately addressed the appellant's pre- and post-injury psychological functioning.
Basten JA and Simpson J found that the trial judge's approach to assessing the appellant's psychological and psychiatric condition was flawed. They held that the judge had placed undue reliance on a psychiatrist's report without adequately considering the appellant's pre-injury and post-injury functioning, and that the psychiatrist had failed to diagnose a post-injury psychological condition or properly identify any pre-injury condition. The court concluded that the reasoning of the trial judge was unsustainable and that the credibility findings adverse to the appellant were not warranted upon a proper examination of the evidence.
Consequently, the Court of Appeal allowed the appeal, quashed the judgment of the District Court, and remitted the appellant's claim to the District Court for a re-trial limited to the question of damages. The respondents were ordered to pay the appellant's costs.
Orders
Orders of the court
(i) Appeal allowed; (ii) Judgment of the District Court of 3 April 2008 quashed; (iii) The appellant's claim be remitted to the District Court for a re-trial limited to the question of damages; (iv) The respondents to pay the appellant's costs.