BRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 34

BRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, SHELLER and COLE JJA 18 October 1994, 6 December 1994

[1994] NSWCA 34

JUDGMENTS AND ORDERS — statement of reasons for decision — duty to record and make findings on critical issues — evidence of six lay witnesses referred to but not described — whether mistrial — held (by maj): Not. COURTS AND JUDGES — judges — statement of reasons- duty to consider and make findings on crucial evidence — whether failure to do so in reasons given — held (by maj): No failure. EVIDENCE — expert evidence — opinion based upon premises removed during trial medical experts — whether Court entitled to substitute own opinion. Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 (HC) consd.

JUDGMENTS AND ORDERS — statement of reasons for decision — evidential matters — contested assessment of damages following motor accident — dispute as to pre- and post-accident condition of plaintiff — plaintiff calls six lay witnesses on pre- and post-accident conditions — Master rejects credit of plaintiff and his treating medical practitioner — fails to refer to evidence of six lay witnesses — whether such failure amounts to a departure from the judicial obligation to give reasons extending to findings on matters critical to the issue of the case — held (Sheller and Cole JJA; Kirby P dissenting): In the circumstances of the case, the omission of the Master to refer in his reasons to the witnesses' testimony was not crucial and did not warrant a re-trial — the decision rested upon credibility findings and could not be disturbed on appeal. Mifsud v Campbell (1990) 21 NSWLR 725 (CA), distinguished.

COURTS AND JUDGES — judges — statement of reasons for decision — evidential matters — critical issues to be recorded and findings made thereon — whether default in circumstances of the case — held (by maj): Not.