Falasca v Morrissy [1999] FCA 277

FEDERAL COURT OF AUSTRALIA

Falasca v Morrissy [1999] FCA 277 DAMAGES - appeal against assessment - plaintiff gave seriously incorrect history to doctors‑ principle in Watts v Rake - whether rule attracted - whether evidentiary onus discharged - expert evidence - circumstances in which expert's opinion may continue to have some value after failure to prove assumption on which opinion based Watts v Rake (1960) 108 CLR 158 followed Purkess v Crittenden (1965) 114 CLR 164 followed LELIO FALASCA v MARGARET MORRISSY AG41 of 1998

MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ 25 MARCH 1999 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 41 OF 1998

DISTRICT REGISTRY

ON APPEAL FROM THE FULL COURT OF THE

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: LELIO FALASCA

Appellant

AND: MARGARET MORRISSY

Respondent

JUDGES: MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

DATE: 25 MARCH 1999

PLACE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 41 OF 1998

ON APPEAL FROM THE FULL COURT OF THE

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: LELIO FALASCA

Appellant

AND: MARGARET MORRISSY

Respondent

JUDGES: MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

DATE: 25 MARCH 1999

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an appeal by the plaintiff concerning the assessment of damages for personal injury suffered in a road accident on 10 June 1993 caused by the defendant's negligence. 2 The Master of the Supreme Court of the Australian Capital Territory awarded the plaintiff $7,500 for general damages (for pain and suffering in the past), $642 for interest thereon and $58 for one attendance, after the accident, on each of his medical general practitioner and a physiotherapist. A Full Court of the Supreme Court (Gallop, Higgins and Crispin JJ) unanimously dismissed the plaintiff's appeal against the Master's assessment and the plaintiff now appeals from the decision of the Full Court. 3 Two matters were argued before us. First, it was asserted that the Supreme Court and the Master had failed to apply the principle in Watts v Rake (1960) 108 CLR 158 at 160 (and further explained in Purkess v Crittenden (1965) 114 CLR 164 at 168). This concerns the evidentiary onus on a defendant to "disentangle" the causes and effects of a disability that pre-existed a compensatible accident from an aggravation or exacerbation resulting from the accident. The second matter concerned an alleged failure, by the Supreme Court, to accept the evidence of a doctor's opinion, which was said to have been uncontroverted at the trial.