SILLITOE v STATE RAIL AUTHORITY OF NEW SOUTH WALES [1991] NSWCA 246

SILLITOE v STATE RAIL AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and PRIESTLEY JJA 1 August 1991, 1 August 1991 [1991] NSWCA 246

APPEAL — agreement in trial before judge alone between parties that histories given by plaintiff to doctors were to be treated as truth of the matters stated therein — judge in reserved judgment ignores agreement and finds against plaintiff inter alia on ground that much of the history and thus the basis of medical opinion was unsubstantiated — held trial miscarried on that account — new trial ordered on conditions designed to reproduce the basis upon which the previous trial conducted.

ORDERS

Appeal allowed. A general new trial ordered. New trial is to be conducted pursuant to following conditions:

1. The respondent admits duty and breach but does not admit that the appellant suffered any damage.

2. The trial is to be conducted by a judge alone.

3. The new trial is to be subject to the agreement which is recorded at p 2 of the transcript of the previous trial in these terms:

"Mr Gross indicated that the plaintiff would consent to the jury being dispensed with upon the agreement between the parties that the histories and complaints given to doctors were to be treated as evidence of the truth of the matters stated in those histories and complaints, subject to the defendant's right of cross-examination."

4. The costs of the previous trial are to abide the discretion of the judge hearing the new trial.

Samuels JA This is a rather unfortunate case the material facts of which, however, can be shortly stated.

The appellant was involved in the railway accident which occurred on 18 January 1977, and which, as Lusher AJ stated, has come to be known as the Granville train disaster.

The appellant was not physically injured. But, in December 1983, he filed a statement of claim in which he sought damages from the respondent for various psychological effects of his experience, including the onset of a manic depressive psychosis and a milder psychogenic condition which was described as a post traumatic stress disorder.