NEW SOUTH WALES COURT OF APPEAL
CITATION: Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174 revised - 6/07/2004
FILE NUMBER(S):
40492/03
HEARING DATE(S): 04/06/04
JUDGMENT DATE: 18/06/2004
PARTIES:
Mitzi Wiki (Appellant)
Atlantis Relocations (NSW) Pty Limited (Respondent)
JUDGMENT OF: Ipp JA Bryson JA Stein AJA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC 20998/01
LOWER COURT JUDICIAL OFFICER: Newman AJ
COUNSEL:
G Barry Hall QC/F Stevens (Appellant)
L King SC/P Sweeney (Respondent)
SOLICITORS:
RTW & Associates (Appellant)
Grahame Goldberg Partners (Respondent)
CATCHWORDS:
COURTS AND JUDICIAL SYSTEM
Dispute between experts
Where expert evidence accepted on the basis that the particular expert was "impressive" and "eminent" - Judicial obligation to give reasons when deciding as between experts
Duty of judge to inform parties of matters within judge's personal knowledge when judge contemplates taking those matters into account
D
LEGISLATION CITED:
Suitors Fund Act 1951 (NSW)
DECISION:
(1) The appeal is upheld (2) The order made by Newman AJ granting judgment in favour of the respondent in the sum of $290,139.35 is set aside (3) The order as to the costs of the trial remains the same (4) The matter is remitted to the Common Law Division of this Court for retrial (5) The respondent to pay the appellant's costs of the appeal (6) The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40492/03
SC 20998/01IPP JA
BRYSON JA
STEIN AJAFriday 18 June 2004
MITZI WIKI v ATLANTIS RELOCATIONS (NSW) PTY LIMITED
FACTS
The appellant injured her lower back while carrying out lifting work in the course of her employment with the respondent. The respondent admitted that these injuries were caused by its breach of a duty of care that it owed the appellant. These injuries were later aggravated by further work carried out for the respondent. Over time, the appellant’s symptoms worsened, and some two years after the initial injury, she began to experience pain in the upper back. The appellant became depressed and stopped being gainfully employed.
The appellant called a number of medical experts to give evidence at trial who were of the opinion, generally, that the pain in the appellant’s upper back was caused by the strain to the lower back. The appellant also led evidence of a psychiatrist, Dr Roxanas, who was of the opinion that the appellant was suffering a depressive illness which was caused by her pain and disability. The respondent led evidence of experts who were of the opinion, generally, that the appellant had only sustained a strain to her lower back (and not disc injuries) and that the injuries to the upper back were not caused by her work. The respondent also led the evidence of another psychiatrist who was of an opinion different to that of Dr Roxanas.
The trial judge, Newman AJ, found that the appellant had sustained a back strain, but…
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- Case
- [2004] NSWCA 174
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the appellate court were whether the trial judge had erred in his assessment of the medical evidence and in his approach to the appellant's case. Specifically, the court considered whether the judge had adequately considered the expert evidence presented, particularly in light of conflicting medical opinions regarding the appellant's injuries and their causation. The court also examined whether the trial judge had improperly discouraged the appellant from leading certain evidence, which may have impacted the presentation of her case.
The appellate court found that the trial judge had erred in his assessment of the medical evidence, particularly concerning the proof of disc injuries and their connection to the appellant's psychological trauma. The court noted that the judge's finding that no disc injuries were proved had unduly influenced his conclusion regarding the appellant's failure to prove psychological trauma. Furthermore, the court held that the trial judge had wrongly discouraged counsel for the appellant from leading evidence regarding the circumstances of the injury and its exacerbation, which was a live issue and potentially relevant to causation.
Consequently, the appeal was upheld. The judgment in favour of the respondent was set aside, and the matter was remitted to the Common Law Division for a retrial. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) The appeal is upheld (2) The order made by Newman AJ granting judgment in favour of the respondent in the sum of $290,139.35 is set aside (3) The order as to the costs of the trial remains the same (4) The matter is remitted to the Common Law Division of this Court for retrial (5) The respondent to pay the appellant's costs of the appeal (6) The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.