Shorey v PT Limited [2003] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

ROSE SHOREY APPELLANT

AND

PT LIMITED as trustee for McNamara Australia RESPONDENTS

Property Trust & Ors

Shorey v PT Limited [2003] HCA 27

28 May 2003

S212/2002

ORDER

1. Appeal allowed with costs. 2. Set aside the orders of the New South Wales Court of Appeal dated 7 June 2001. 3. Remit the proceedings to the Court of Appeal for rehearing and determination of the appeal and cross-appeal to that Court conformably with the reasons of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with A S Morrison SC and A C Casselden for the appellant (instructed by Maurice Blackburn Cashman)

B W Walker SC with P S Jones for the first respondent (instructed by PricewaterhouseCoopers Legal)

No appearance for the second and third respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Shorey v PT Limited

Appeal – Rehearing – Causation – Conflict of expert evidence – Review of trial judge's finding of fact – Where plaintiff fell and suffered physical injuries as a result of tortfeasor's negligence – Plaintiff suffering from persistent psychologically disturbed condition – Whether psychological condition caused by fall.

Negligence – Damage – Causation of – Evidentiary foundation for proof of – Existence of multiple causes of damage – Obligation of plaintiff at trial to prove damage – Sufficiency of proof that the alleged tortfeasor's conduct was a cause of the plaintiff's damage – Alleged disproportion between the tortfeasor's conduct and subsequent symptoms – Whether plaintiff malingering – Obligation of tortfeasor to take plaintiff as it finds him or her.

Evidence – Evidentiary presumptions – Multiple causes of damage allegedly occasioned by tortfeasor's negligence – Evidentiary onus of tortfeasor to exclude the operation of its wrong as a cause of continuing damage – Relevance of factual findings made at trial – Whether alleged tortfeasor has displaced the causative effect of its injury.