Mkari v Meza - [2005] NSWCA 136

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 2005

JUDGMENT 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 1951

CASES CITED:
Browne v Dunn (1894) 6 R 67
Digi-Tech (Australia) v Brand [2004] NSWCA 58

PARTIES:
APPELLANT
George Mkari by his Next Friend Youssef Mkari
DEFENDANT
Daniel Meza

FILE NUMBER(S):
CA 40824/03

COUNSEL:
Mr D Kennedy SC with Mr P Frame - Appellant
Mr I Harrison SC with Mr W Fitzsimmons - Respondent

SOLICITORS:
APPELLANT
Keddies
RESPONDENT
Moray & Agnew

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 989/02

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

CA 40824/03

DC 989/02

HANDLEY JA

McCOLL JA
BROWNIE AJA

Thursday 5 May 2005

GEORGE MKARI by his Next Friend YOUSSEF MKARI

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…

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 Mkari v Meza

Details

AGLC: Mkari v Meza [2005] NSWCA 136
Case: [2005] NSWCA 136
Decision Date: 5 May 2005

CaseChat Overview and Summary

The appeal in *Mkari v Meza* concerned a dispute between the appellant and the respondent. The District Court had made a judgment in favour of the respondent. The appellant sought to overturn this judgment.

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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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 2005
JUDGMENT 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 1951
CASES CITED:	Browne v Dunn (1894) 6 R 67 Digi-Tech (Australia) v Brand [2004] NSWCA 58
PARTIES:	APPELLANT George Mkari by his Next Friend Youssef Mkari DEFENDANT Daniel Meza
FILE NUMBER(S):	CA 40824/03
COUNSEL:	Mr D Kennedy SC with Mr P Frame - Appellant Mr I Harrison SC with Mr W Fitzsimmons - Respondent
SOLICITORS:	APPELLANT Keddies RESPONDENT Moray & Agnew

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 989/02
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ