Morris v Morris

[1992] QCA 138

IN THE COURT OF APPEAL

[1992] QCA 138

SUPREME COURT OF QUEENSLAND

C.A. No. 96 of 1991

FIONA DOREEN MORRIS

(Plaintiff) Respondent

v.

ANTHONY JOHN MORRIS

(Defendant) Appellant

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The President
Mr. Justice McPherson JA

Mr. Justice Derrington

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment of the Court delivered on

the Fifth day of June 1992.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

1. THE APPEAL IS ALLOWED.

2.    THAT THE JUDGMENT BELOW BE SET ASIDE.

3.   THAT THE ACTION BE TRANSFERRED TO THE SUPREME COURT OF QUEENSLAND.

4.   THAT THERE BE A RETRIAL OF THE ACTION LIMITED TO THE ISSUE OF DAMAGES.

5.    THAT THE APPELLANT PAY THE RESPONDENT HER COSTS OF AND INCIDENTAL TO THE FORMER TRIAL LIMITED TO THE ISSUE OF LIABILITY.

6.    THAT THE RESPONDENT PAY TO THE APPELLANT HIS COSTS OF AND INCIDENTAL TO THIS APPEAL.

7.   THAT A CERTIFICATE BE ISSUED TO THE RESPONDENT PURSUANT TO THE APPEAL COSTS FUND ACT 1973.

8.   THAT THE COSTS OF THE FORMER TRIAL LIMITED TO DAMAGES BE AT THE DISCRETION OF THE TRIAL JUDGE UPON THE RETRIAL.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 96 of 1991

FIONA DOREEN MORRIS

(Plaintiff) Respondent

v.

ANTHONY JOHN MORRIS

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the day of 1992.

This is an appeal against the learned trial Judge's determination of quantum. It may be determined on a preliminary point, the essential features of which can be explained briefly. The action was a claim for personal injuries, the most serious of which was alleged to have been some permanent harm to the plaintiff's lower spine.

However, she had a pre-existing congenital disorder in that region. Her credibility was put in issue in respect of both the existence of symptoms before the accident and the continuity of more serious symptoms which she claimed to have experienced after the accident.

Hospital records were tendered for identification and a medical witness was later asked to extract from them the material which related to a certain limited period. This bundle became a single exhibit. Unfortunately through some unknown cause the records for a much longer period were included in the exhibit and the extraneous material was referred to quite extensively by the learned trial Judge in his reasons for judgment. He was obviously unaware of its intrusion.

More particularly, he referred expressly to and relied upon some of it as fortification of the plaintiff's credibility. This was followed by findings in her favour upon some very substantial issues.

In some cases the information was replicated in other evidence but in some others the only relevant information upon the subject matter was contained in documents. Even where there was other evidence, it is not known how far the extraneous material influenced His Honour in accepting that which he did accept. There was a real issue because of a conflict of medical evidence.

It is not possible by reference to the evidence and the judgment to say that had His Honour relied only upon the evidence which, had been admitted, the result would have been the same. In circumstances such as this, the onus is upon the respondent to demonstrate that the evidence wrongly used by His Honour could not have affected the result.

Otherwise there must be an order for a retrial; Supreme Court Act of 1874 s. 13; Stead v. State Government Insurance Commission (1986) 161 C.L.R. 141, 144, 147; Balenzuela v. De Gail (1959) 101 C.L.R. 226, 234-5; Sharp v. Sharp (1936) St.R.Qd. 227, 238; McNamara v. Hooper (1962) Q.W.N. 17.

As she is unable to discharge this onus, there must be a new trial. Because of the size of the award below, an application has been made, and not opposed, that the action be transferred to the Supreme Court and this should be ordered. This avoids any possibility of a retrial before the

Accordingly, it is ordered:

1.    That the judgment below be set aside.

2.    That the action be transferred to the Supreme Court of Queensland.

3.   That there be a retrial of the action limited to the issue of damages.

4.    That the appellant pay the respondent her costs of and incidental to the former trial limited to the issue of liability.

5.   That the respondent pay to the appellant his costs of and incidental to this appeal.

6.   That a certificate be issued pursuant to the Appeal Costs Fund Act 19...... in respect of the respondent's costs of the appeal including her liability for the appellant's costs.

7.    The costs of the former trial in relation to damages be at the discretion of the trial Judge upon the retrial.