NICKLESS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 233

NICKLESS vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 6 July 1994, 3 August 1994 [1994] NSWCA 233

MISCARRIAGE OF JUSTICE — BIAS FACTS The appellant, Ian Malcolm Nickless, sued the Government Insurance Office of NSW for damages in respect of injuries which he suffered on 29 May 1985. The trial was concerned only with the assessment of those damages. His Honour awarded the appellant $19,000 in an ex tempore judgment. The main issue on appeal is that the appellant contends that the trial miscarried because his Honour was concerned with the irrelevant issue of whether the appellant was a practising homosexual.

His Honour gave a cryptic Jones v Dunkel warning after the appellant was cross-examined on blood tests the appellant undertook every 4 to 6 months as part of a prospective study run by Professor David Cooper. His Honour devoted a part of his judgment to the appellant's sexual preference and made a finding that the appellant is a homosexual. At the end of his discussion, his Honour decided that any issue of the appellant's sexual preference had no significance in the case.

HELD

Once the appellant gave evidence (which was corroborated by Dr Beveridge) that every blood test over a period of eight years had returned an HIV negative result the subject of the appellant's sexual preference went to no issue in the trial. It was irrelevant in the assessment of damages as the appellant's sexual preference had no impact on life expectancy.

His Honour's concentration on the appellant's sexual preference could only have led the appellant and indeed, any fair minded observer sitting in the back of the court, to believe that the judge had been influenced in his assessment of the appellant by his conduct in the witness box and the ultimate conclusion that he was a practising homosexual. Although it may be, as the judge said, that he was totally successful in putting the inferred fact out of his mind, the appellant would have left the court with the firm belief that the judge had decided the case adversely to him because he was a homosexual.