KOTEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 171

KOTEVSKI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 14 October 1994, 14 October 1994 [1994] NSWCA 171

DAMAGES — FACTUAL MISUNDERSTANDING UNFAIRNESS — QUANTUM FACTUAL MISUNDERSTANDING BY TRIAL JUDGE — unfairness — quantum of damages affected — new trial ordered. Held: both factual misunderstandings and elements of unfairness were closely connected with the formation of the trial judge's opinion of the appellant's credit, which was critical to the decision on the quantum of the appellant's damages. In these circumstances the judgment must be set aside and a new trial ordered.

ORDERS

1. Appeal upheld.

2. Judgment below set aside except as to costs.

3. New trial limited to damages.

4. Respondent to pay the appellant's costs of the appeal.

Priestley JA In this appeal the Court is firmly of the view that there shouldbe a new trial. Because of that it is not only possible but probably desirable to keep the comments on the happenings at the earlier trial to a minimum. It seems quite clear from the trial Judge's reasons both simply on reading them and after hearing the submissions of both counsel that in dealing with medical reports from which the Judge extracted material clearly relevant to the opinion he formed about the credit of the appellant, he fell into some confusion as to those reports and in fact appears to have relied significantly on a report in regard to which he was mistaken as to its date and its provenance. Not only that but in regard to a matter of some significance in the trial, namely, whether the appellant had suffered injury in the L4-5 region of his back at the time of the accident from which the proceedings arose, he appears to have overlooked some highly significant evidence.