CITATION: George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136
HEARING DATE(S): 10/02/05
JUDGMENT DATE:
5 May 2005JUDGMENT OF: Handley JA at 1; McColl JA at 2; Brownie AJA at 3
DECISION: 1. Appeal allowed. 2.Judgment of the District Court set aside. 3. Order that there be a new trial, before a different judge, limited to damages. 4.Order that the respondent pay the appellant's costs of the appeal, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 5.The costs of the first trial to be in the discretion of the judge conducting the second trial.
CATCHWORDS: Evidence - Browne v Dunn - No sufficient challenge to evidence eventually not accepted
LEGISLATION CITED: Damages (Infants and Persons of Unsound Mind) Act 1929
Motor Accidents Act 1988 s79A
Suitors' Fund Act 1951CASES CITED: Browne v Dunn (1894) 6 R 67
Digi-Tech (Australia) v Brand [2004] NSWCA 58PARTIES: APPELLANT
George Mkari by his Next Friend Youssef Mkari
DEFENDANT
Daniel MezaFILE NUMBER(S): CA 40824/03
COUNSEL: Mr D Kennedy SC with Mr P Frame - Appellant
Mr I Harrison SC with Mr W Fitzsimmons - RespondentSOLICITORS: APPELLANT
Keddies
RESPONDENT
Moray & Agnew
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 989/02
LOWER COURT JUDICIAL OFFICER: Gibb DCJ
DC 989/02
CA 40824/03
McCOLL JA
HANDLEY JA
BROWNIE AJA
Thursday 5 May 2005
GEORGE MKARI by his Next Friend YOUSSEF MKARI
v
DANIEL MEZA
JUDGMENT
1 HANDLEY JA: I agree with Brownie AJA.
2 McCOLL JA: I agree with Brownie AJA.
3 BROWNIE AJA: The appellant sued the respondent for damages for personal injuries sustained in a motor accident that occurred on 27 October 1998. The parties agreed that the respondent had been negligent, that the appellant had been contributorily negligent, and that it was appropriate that his damages be reduced by 25 percent, and in due course that settlement was approved, pursuant to the provisions of the Damages (Infants and Persons of Unsound Mind) Act 1929 (the appellant being a minor). However, the parties litigated the question of the measure of damages. The learned trial judge, Gibb DCJ, assessed those damages at $113,117.45, and gave judgment for the appellant for 75 percent of that sum, $84,838.09. The appellant challenges some of her Honour’s findings, and generally asserts that the damages awarded were inadequate.
4 The appellant was a pedestrian, who came into collision with the respondent’s car. The appellant was thrown onto the bonnet of the car, and his head struck and broke the windscreen. He was thrown to the road and came into collision with a parked car. It was not in dispute that he fractured his right humerus, suffered some head injury, and various soft tissue injuries, nor that there was some continuing disability as at the time of the trial. The main issue, both at trial and on appeal, was whether, as the appellant’s case asserted, he suffered from some mild organic brain damage, or whether, as…
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- Mkari v Meza [2005] NSWCA 136
- Case
- [2005] NSWCA 136
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the trial judge had erred in failing to apply the principle established in *Browne v Dunn*. Specifically, the court considered whether the appellant's evidence, which was ultimately not accepted by the trial judge, had been sufficiently challenged during cross-examination.
The Court of Appeal found that the trial judge had erred in accepting the respondent's evidence on a particular issue without affording the appellant an adequate opportunity to address that evidence. The principle in *Browne v Dunn* requires that if a party intends to challenge the evidence of another party, they must put their challenge to that witness during cross-examination. This was not done sufficiently in this instance. Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and ordered a new trial limited to the issue of damages. The costs of the appeal were awarded to the appellant, with provision for a certificate under the *Suitors' Fund Act 1951*. The costs of the first trial were to be determined by the judge presiding over the new trial.
Orders
Orders of the court
1. Appeal allowed. 2.Judgment of the District Court set aside. 3. Order that there be a new trial, before a different judge, limited to damages. 4.Order that the respondent pay the appellant's costs of the appeal, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 5.The costs of the first trial to be in the discretion of the judge conducting the second trial.
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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