RUKIYE DOGAN v AKIF DOGAN [1992] NSWCA 59

RUKIYE DOGAN v AKIF DOGAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P CLARKE JA and Hope AJA 27 March 1992, 27 March 1992 [1992] NSWCA 59

NEGLIGENCE — ERROR IN TRIAL JUDGMENT — TRIAL JUDGE OVERLOOKING EVIDENCE — ERRONEOUS REASONING CASE REMITTED FOR NEW TRIAL — NO QUESTION OF PRINCIPLE

Kirby P I shall ask Clarke JA to deliver the first judgment.

Clarke JA The trial judge in this case was placed, through the exigencies of his work, in a difficult position. The trial was not an unduly complicated one, but he was required to give judgment at 3.50 pm on a Friday afternoon, which meant that he had no time to deliberate and reflect upon the serious issues which had been thrown up. I shall emphasise that when I say, "was placed" I do not intend any criticism against anyone. The position was that his Honour was leaving Sydney for five weeks following the conclusion of this trial and any judgment would have been much delayed if it had been reserved. The unfortunate consequence of his Honour's inability to reflect upon the matter is that a number of what seemed to me to be patent mistakes were made.

At any early stage in his Honour's judgment his Honour stated that he was satisfied that the plaintiff had established a causal nexus between all of the treatments to which she had been subjected as a result of the negligence of the defendant, yet when he came to consider what out-of-pocket expenses should be allowed, he rejected all but one. This stand is understandable in the light of other comments in the judgment but it is quite inconsistent with the earlier statement which I have set out.

The suggestion was put to the court that there may have been a typographical error and the word "not" might have been left out, so the passage should have read, "I am not satisfied". Certainly the judgment would read more happily if the word "not" were there.