BRIDGES v GRANT [1991] NSWCA 32

BRIDGES v GRANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA

13, 26 November 1991

[1991] NSWCA 32

NEGLIGENCE — JUDICIAL KNOWLEDGE — INFERENCE — NO QUESTION OF PRINCIPLE

Clarke JA. At the commencement of the hearing of this appeal counsel for the appellant sought leave to add two additional grounds of appeal. They were:

1. The trial judge erroneously took judicial notice of matters not within the common knowledge of members of the community.

2. The trial judge erroneously drew an inference from the fact that counsel for the respondent asked a question which was objected to and rejected.

The respondent opposed the application essentially upon the basis that, as the submissions of counsel had not been recorded in the transcript and no additional evidence had been put before the court, the new grounds, which had been spelt out in more detail in the appellant's written submissions, were bound to fail. The court reserved its consideration of this question until delivery of the judgment. In my opinion the objection to the amendment means no more than that the grounds may fail for want of proof. It seems to me that properconsiderations of justice require that the appellant be permitted to raise these matters and I would grant the application.

In essence these grounds do no more than direct attention to what are said to be specific errors which pervaded his Honour's reasoning process and led to the findings which were challenged in the original grounds of appeal. In those grounds the appellant contended that his Honour erred in finding that the respondent continued to suffer from injuries which he received in the accident, the subject of the claim, beyond 2 January 1976; that his Honour erred in finding that the respondent had suffered an impaired earning capacity in the future and, finally, awarded to the respondent excessive damages for impairment of earning capacity and general damages.