Jason Laurence Rhoden (Appellant) Lloyd Glen Wingate (Respondent)
JUDGMENT OF:
Sheller JA at 1; Heydon JA at 4; Pearlman AJA at 107
LOWER COURT JURISDICTION :
District Court
LOWER COURT FILE NUMBER(S) :
DC 8345/00
LOWER COURT JUDICIAL OFFICER :
Gamble ADCJ
COUNSEL:
Mr R S Toner SC with Mr P L Formosa (Appellant) Mr R R Bartlett SC with Mr J M Morris (Respondent)
SOLICITORS:
Kells (Appellant) Abbott Tout (Respondent)
CATCHWORDS:
Tort - negligence - personal injury - collision between motorcycle and motor car - absence of direct testimonial evidence - difficulty of ascertaining relevant facts - Evidence - expert opinion evidence - Evidence Act 1995 (NSW) s 79 - expert reports - admissibility - requirement that opinion be based on assumptions capable of proof by admissible evidence - Practice - tendering of expert evidence - where called early in party's case - where not in satisfactory form - objections to evidence - time appropriately taken - appropriate procedure where objection taken after close of plaintiff's case - failure to follow - consequences - D
Tort – negligence – personal injury – collision between motorcycle and motor car – absence of direct testimonial evidence – difficulty of ascertaining relevant facts
Evidence – expert opinion evidence – Evidence Act 1995 (NSW) s 79 – expert reports – admissibility – requirement that opinion be based on assumptions capable of proof by admissible evidence Practice – tendering of expert evidence – where called early in party’s case – where not in satisfactory form – objections to evidence – time appropriately taken – appropriate procedure where objection taken after close of plaintiff’s case – failure to follow – consequences
The plaintiff sustained personal injury when his motorcycle collided with the defendant’s motor car. He sued the defendant in negligence but was unfit to give direct testimonial evidence because of his injuries, and relied on reports made by expert witnesses which became Exhibits B, C, M and N. The defendant did not testify.
On day one of the trial Exhibits B and C were tendered. The defendant objected to passages from B and the whole of C. The trial judge admitted Exhibit A, excluding the passages objected to on the ground that they referred to material not before the court. Exhibit B was admitted in total. On day two of the trial Exhibit M was admitted without objection. On day three of the…
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.
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AGLC
Rhoden v Wingate [2002] NSWCA 165
Case
[2002] NSWCA 165
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal considered a dispute arising from a motor vehicle collision between a motorcycle and a motor car. The plaintiff, Mr. Rhoden, sustained personal injuries in the collision and brought proceedings against the defendant, Mr. Wingate, alleging negligence. The case presented difficulties in ascertaining the relevant facts due to the absence of direct testimonial evidence regarding the collision itself.
The primary legal issues before the Court of Appeal were the admissibility of expert opinion evidence, specifically concerning the application of section 79 of the *Evidence Act 1995* (NSW), and the proper procedure for objecting to such evidence. The court also had to determine the consequences of failing to follow appropriate procedures when tendering expert evidence, particularly when objections were raised after the close of the plaintiff's case.
The court's reasoning focused on the requirement that expert opinions must be based on assumptions that are capable of proof by admissible evidence. It was held that the tendering of expert evidence early in a party's case, when it is not in a satisfactory form, necessitates careful consideration of objections. The court emphasised that objections to evidence should be taken at the appropriate time, and that a failure to follow the correct procedure, especially when an objection is raised after the close of the plaintiff's case, can have significant consequences for the admissibility and weight of that evidence. The court ultimately made orders regarding the appeal, the specifics of which are detailed in paragraph 106 of the judgment.