Sant v Tsoutsas - [2009] NSWCA 3

New South Wales

Court of Appeal

CITATION: Sant v Tsoutsas [2009] NSWCA 3

HEARING DATE(S): 31/10/08

JUDGMENT DATE:
30 January 2009

JUDGMENT OF: Beazley JA at 1; Bell JA at 2

DECISION: 1. Allow the appeal.
2. Quash the orders made in the District Court and in lieu thereof direct that there be a new trial on the issue of damages.
3. The respondent is to pay the appellant’s costs of the trial and of the appeal. In respect of the costs of the appeal, the respondent is to have a certificate under the Suitors’ Fund Act 1951, if qualified.

CATCHWORDS: APPEAL – duty to give reasons – conflicting expert opinion – experts not called – duty not discharged

LEGISLATION CITED: Suitors’ Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Ahmedi v Ahmedi (1991) 23 NSWLR 288
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127

PARTIES: Steven Sant (Appellant)
Peter Tsoutsas (Respondent)

FILE NUMBER(S): CA 40473/07

COUNSEL:
Mr B Toomey QC / Mr SE McCarthy / Mr M Eirth (Appellant)
Mr B J Gross QC / Mr K Kelleher (Respondent)

SOLICITORS: Albert A Macri Partners (Appellant)
Moray & Agnew (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2391 of 2005

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 13/6/07

CA 40473/07
DC 2391/05

BEAZLEY JA
BELL JA
Friday 30 January 2009

Steven SANT v Peter TSOUTSAS

Judgment

1 BEAZLEY JA: I agree with Bell JA.

2 BELL JA: The appellant was injured in a motor vehicle accident on 27 January 2001. He was aged 21 years. The respondent’s tipper truck which was carrying a load of sandstone collided with the appellant's vehicle, almost completely destroying the rear section of it and propelling it to the incorrect side of the roadway. The appellant suffered injury including to his left ankle as the result of the collision. Liability was admitted and the matter proceeded in the District Court as an assessment of damages.

3 At the time of the accident the appellant was about to complete his apprenticeship as a vehicle body-builder. He was in employment with a firm called Custom Coaches. He participated actively in a number of sporting activities. He was aged 27 years at the date of trial and he had not worked since the accident. He complained of continuing pain in his left foot and he walked with a noticeably distorted, antalgic (pain avoidant), gait.

4 Two doctors gave oral evidence concerning the left ankle injury. Dr Giblin, an orthopaedic surgeon performed a left ankle peroneal tendon stabilising procedure on 19 June 2001. He observed that the appellant had a congenital anomaly in the muscle associated with the tendon, a condition that would become symptomatic from time to time. Dr Giblin considered the instability of the tendon was the result of trauma caused by the accident. Dr Gibbs, a sports physician, commented that the congenital condition typically predisposes a person to recurrent tenosynovitis/tendonitis. Dr…

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 Sant v Tsoutsas

Details

AGLC: Sant v Tsoutsas [2009] NSWCA 3
Case: [2009] NSWCA 3
Decision Date: 30 January 2009

CaseChat Overview and Summary

The appeal in *Sant v Tsoutsas* concerned a dispute between the appellant and the respondent, heard before Beazley JA and Bell JA in the Court of Appeal of New South Wales. The core of the dispute revolved around the adequacy of the trial judge's reasons for decision, particularly in relation to conflicting expert evidence and the failure to call certain experts.

The Court of Appeal was required to determine whether the trial judge had discharged their duty to give adequate reasons for the decision, especially when faced with conflicting expert opinions and the absence of expert witnesses at trial. This involved assessing whether the judge's findings on damages were sufficiently explained and justified in light of the evidence presented.

The Court found that the trial judge had failed to adequately discharge their duty to give reasons. This failure was particularly evident in the context of conflicting expert evidence, where the judge did not sufficiently explain the basis for preferring one expert's opinion over another, nor did the judge adequately address the implications of experts not being called to give evidence. The Court held that this lack of clear reasoning meant the decision on damages could not stand. Consequently, the appeal was allowed, the District Court orders were quashed, and a new trial was directed solely on the issue of damages. The respondent was ordered to pay the appellant's costs of the trial and the appeal, with a potential certificate under the Suitors' Fund Act 1951 for the appeal costs.

Orders

Orders of the court

1. Allow the appeal. 2. Quash the orders made in the District Court and in lieu thereof direct that there be a new trial on the issue of damages. 3. The respondent is to pay the appellant's costs of the trial and of the appeal. In respect of the costs of the appeal, the respondent is to have a certificate under the Suitors' Fund Act 1951, if qualified.

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:	Sant v Tsoutsas [2009] NSWCA 3
HEARING DATE(S):	31/10/08
JUDGMENT DATE:	30 January 2009
JUDGMENT OF:	Beazley JA at 1; Bell JA at 2
DECISION:	1. Allow the appeal. 2. Quash the orders made in the District Court and in lieu thereof direct that there be a new trial on the issue of damages. 3. The respondent is to pay the appellant’s costs of the trial and of the appeal. In respect of the costs of the appeal, the respondent is to have a certificate under the Suitors’ Fund Act 1951, if qualified.
CATCHWORDS:	APPEAL – duty to give reasons – conflicting expert opinion – experts not called – duty not discharged
LEGISLATION CITED:	Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Ahmedi v Ahmedi (1991) 23 NSWLR 288 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127
PARTIES:	Steven Sant (Appellant) Peter Tsoutsas (Respondent)
FILE NUMBER(S):	CA 40473/07
COUNSEL:	Mr B Toomey QC / Mr SE McCarthy / Mr M Eirth (Appellant) Mr B J Gross QC / Mr K Kelleher (Respondent)
SOLICITORS:	Albert A Macri Partners (Appellant) Moray & Agnew (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2391 of 2005
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	13/6/07