Maynard v Dabinett - [1999] NSWCA 295

CITATION: Maynard v Dabinett [1999] NSWCA 295

FILE NUMBER(S): CA 40935/98

HEARING DATE(S): 30 July 1999

JUDGMENT DATE:
1 September 1999

PARTIES :

L Maynard - Appellant
C E Dabinett - Respondent

JUDGMENT OF: Stein JA at 1; Giles JA at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 8856/97

LOWER COURT JUDICIAL OFFICER: Hughes ADCJ

COUNSEL: B J Gross QC & R H Grace - Appellant
A C Bridge SC - Respondent

SOLICITORS: Booth Mather Blackmore, Edgecliff - Appellant
McMahons, Sydney - Respondent

CATCHWORDS: ASSESSMENT OF DAMAGES - whether reasons sufficient - need not be lengthy or elaborate, or deal with ever matter raised in the proceedings - but had to show attention given to critical evidence and basis of critical findings and explain fundamental reasons for conclusion - did not.

DECISION: Appeal allowed with costs, the judgment for $318,776.00 set aside, and the proceedings remitted to the District Court for rehearing limited to assessment of damages, and the respondent to have a certificate under the Suitors Fund Act if qualified. The order made below for the costs of the trial should stand.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40935/98
DC 8856/96

STEIN JA
GILES JA

Wednesday 1 September 1999

Leonie MAYNARD v Colin Ernest DABINETT

JUDGMENT
1    STEIN JA: I agree with Giles JA.
2    GILES JA: The appellant was injured on 3 December 1994 when struck by a car driven by the respondent. She alleged that the respondent was negligent. The respondent denied negligence and alleged contributory negligence. The appellant succeeded on both of those issues.
3    Extensive injuries and disabilities were particularised, and this appeal is concerned with the findings as to the appellant’s injuries and disabilities and the assessment of her damages.
4    The injuries were particularised in 13 paragraphs -

“(a) Shock;

(b) Injury to head;

(c) Injury to nose;

(d) Injury to neck;

(e) Injury to face;

(f) Bruising to eyes;

(g) Injury to right elbow;

(h) Injuries to coccyx;

(i) Multiple fractures to the left leg and left knee;

(j) Bruising and contusions to the right leg;

(k) General bruising and abrasions;

(l) Injury to right knee;

(m) Loss of consciousness.”

5    The disabilities were particularised in 85 paragraphs occupying four pages of typing. They took up a broad notion of disability. Some were cosmetic, for example, lack of hair regrowth in the areas of sutures on the head and scarring. Many were physical, involving one or more of restriction of movement, weakness, pain, or disturbed sensation in a range of parts of the body. They included initial blurred vision; feeling of a pressure band around the head; impairment of the senses of smell and taste; “hot stabbing sensation through each ear”; neck pain, spasms, stiffness and weakness; tightness in the neck and shoulders; pain and restriction in movement in both shoulders, the right elbow, and left hand; weakness in the left hand; “aggravation of wrist symptoms secondary to use of crutches” and…

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 Maynard v Dabinett

Details

AGLC: Maynard v Dabinett [1999] NSWCA 295
Case: [1999] NSWCA 295
Decision Date: 1 September 1999

CaseChat Overview and Summary

Maynard (the appellant) appealed to the Court of Appeal of New South Wales against a judgment of the District Court awarding damages to Dabinett (the respondent) in the sum of $318,776.00. The dispute concerned the assessment of those damages.

The primary legal issue before the Court of Appeal was whether the reasons provided by the District Court judge for the assessment of damages were sufficient in law. Specifically, the court considered whether the reasons demonstrated that the judge had paid adequate attention to the critical evidence and the basis for the critical findings made, and whether they explained the fundamental reasons for the conclusion reached.

The Court of Appeal held that while reasons for assessing damages need not be lengthy or elaborate, nor address every matter raised, they must show attention to critical evidence and the basis of critical findings, and explain the fundamental reasons for the conclusion. In this instance, the court found that the reasons provided by the District Court judge did not meet this standard. Consequently, the appeal was allowed, the judgment for damages was set aside, and the proceedings were remitted to the District Court for a rehearing limited to the assessment of damages. The order for the costs of the trial was to stand, and the respondent was to have a certificate under the Suitors Fund Act if qualified.

Orders

Orders of the court

Appeal allowed with costs, the judgment for $318,776.00 set aside, and the proceedings remitted to the District Court for rehearing limited to assessment of damages, and the respondent to have a certificate under the Suitors Fund Act if qualified. The order made below for the costs of the trial should stand.

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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CITATION:	Maynard v Dabinett [1999] NSWCA 295
FILE NUMBER(S):	CA 40935/98
HEARING DATE(S):	30 July 1999
JUDGMENT DATE:	1 September 1999
PARTIES :	L Maynard - Appellant C E Dabinett - Respondent
JUDGMENT OF:	Stein JA at 1; Giles JA at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 8856/97
LOWER COURT JUDICIAL OFFICER:	Hughes ADCJ

COUNSEL:	B J Gross QC & R H Grace - Appellant A C Bridge SC - Respondent
SOLICITORS:	Booth Mather Blackmore, Edgecliff - Appellant McMahons, Sydney - Respondent
CATCHWORDS:	ASSESSMENT OF DAMAGES - whether reasons sufficient - need not be lengthy or elaborate, or deal with ever matter raised in the proceedings - but had to show attention given to critical evidence and basis of critical findings and explain fundamental reasons for conclusion - did not.
DECISION:	Appeal allowed with costs, the judgment for $318,776.00 set aside, and the proceedings remitted to the District Court for rehearing limited to assessment of damages, and the respondent to have a certificate under the Suitors Fund Act if qualified. The order made below for the costs of the trial should stand.