Murdoch v Davis - [2005] NSWCA 466

NEW SOUTH WALES COURT OF APPEAL

CITATION: Murdoch v Davis [2005] NSWCA 466

FILE NUMBER(S):
40232/05

HEARING DATE(S): 07/12/05

JUDGMENT DATE: 19/12/2005

PARTIES:
Gerald Murdoch - Appellant
Bradley Robert Davis - Respondent

JUDGMENT OF: Santow JA McColl JA Brownie AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC3698/03

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

COUNSEL:
Ms S Norton SC with Ms M M Fraser - Appellant
S G Campbell SC with I D Cullen - Respondent

SOLICITORS:
Bryden's Law Office, Liverpool - Appellant
Vandervords - Respondent

CATCHWORDS:
Evidence - a certificate under s 61 of the Motor Accidents Compensation Act 1999 is conclusive evidence as to the matters mentioned in subs (2)(a), (b) and (c), unless subs (6) is successfully invoked.

LEGISLATION CITED:
Motor Accidents Compensation Act 1999
Motor Accidents Act 1988
Motor Accident Compensation Amendment (Medical Assessments) Act 2000
Suitors' Fund Act 1951

DECISION:
1.Grant leave to appeal; 2. Allow appeal, and set aside the judgment and orders of the District Court; 3. Remit matter to the District Court for retrial; 4. Order the opponent to pay the costs of the claimant of the appeal, but grant to the opponent a certificate under the Suitors’ Fund Act 1951, if otherwise qualified; 5. The costs of the first trial should be in the discretion of the judge conducting the retrial.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40232/05
DC 3698/03
SANTOW JA
McCOLL JA
BROWNIE AJA
Monday 19 December 2005

MURDOCH v DAVIS

Judgment

SANTOW JA: I agree with Brownie AJA.
McCOLL JA: I agree with Brownie AJA.
BROWNIE AJA: The claimant was injured in a motor accident that occurred on 14 June 2000. Having taken the necessary preliminary steps, he sued the appellant, claiming damages for negligence. At trial the claimant tendered a certificate dated 25 July 2003, given under s 61 of the Motor Accidents Compensation Act 1999 (the Act). That certificate was to the effect that the various impairments suffered by the claimant as a result of the injury sustained in the motor accident was greater than ten percent of what is apparently often described as a “whole person assessment” or “whole person impairment”. Without such a certificate the claimant would not have been able to recover damages for non-economic loss: s 131 of the Act.
When the certificate was tendered, at the commencement of the trial, it was said that the opponent had not seen the certificate previously. Counsel for the opponent took no objection to the tender, but foreshadowed an application under s 132(2) of the Act for an adjournment of the trial later on, to enable the opponent to apply for a further assessment, under s 62 of the Act. The trial proceeded, and after the close of evidence, the opponent made that application, but without calling upon the claimant, the learned trial Judge, Bishop DCJ, rejected the application.
During the course of the trial, it emerged that the opponent had arranged to keep the claimant…

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 Murdoch v Davis

Details

AGLC: Murdoch v Davis [2005] NSWCA 466
Case: [2005] NSWCA 466
Decision Date: 19 December 2005

CaseChat Overview and Summary

The claimant, Murdoch, appealed to the Court of Appeal of New South Wales against a judgment of the District Court concerning a motor accident claim. The central dispute revolved around the admissibility and effect of a certificate issued under section 61 of the *Motor Accidents Compensation Act 1999* (NSW).

The primary legal issue before the Court of Appeal was whether the District Court had erred in its interpretation and application of section 61 of the *Motor Accidents Compensation Act 1999* (NSW). Specifically, the court had to determine the evidentiary weight and conclusiveness of a certificate issued under that section, and whether the circumstances of the case allowed for its challenge under subsection (6).

The Court of Appeal reasoned that a certificate issued under section 61 of the *Motor Accidents Compensation Act 1999* (NSW) is generally conclusive evidence of the matters specified in subsections (2)(a), (b), and (c), unless subsection (6) is successfully invoked to challenge its validity. The court found that the District Court had misapplied this principle, leading to an incorrect judgment. Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's judgment and orders. The matter was remitted to the District Court for a retrial, with the costs of the appeal to be paid by the opponent, Murdoch, and the costs of the first trial to be determined by the judge presiding over the retrial.

Orders

Orders of the court

1.Grant leave to appeal; 2. Allow appeal, and set aside the judgment and orders of the District Court; 3. Remit matter to the District Court for retrial; 4. Order the opponent to pay the costs of the claimant of the appeal, but grant to the opponent a certificate under the Suitors’ Fund Act 1951, if otherwise qualified; 5. The costs of the first trial should be in the discretion of the judge conducting the retrial.

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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