KIRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1995] NSWCA 244

KIRKWOOD vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and POWELL JA 29 September 1994, 23 August 1995 [1995] NSWCA 244

APPEAL — review of facts — credibility findings — whether injured motorist suffered brain damage — Master enters judgment for $79,35408 for total damages — appeal against alleged inadequacy of judgment — Master concludes that proof of brain damage depends upon the genuineness of the subjective complaints of the motorist — rejects claims as unproved — on appeal — held: (1) Where findings as to disabilities depend upon acceptance or rejection of a party's evidence, an appellate court may only disturb such a finding in circumstances where it is inconsistent with facts incontrovertibly established by the evidence or otherwise glaringly improbable. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; (2) In determining important factual disputes, a judicial officer has a duty to refer, in the reasons given, to critical evidence relevant to the resolution of such disputes. Mifsud vy Campbell (1990) 21 NSWLR 725 (CA) applied; (3) Once the appellate court is authorised to intervene, it must determine factual disputes for itself and give its own reasons for doing so. Warren v Coombes (1979) 142 CLR 531 applied; (4) (per Kirby P; Priestley JA concurring; Powell JA dissenting): The failure of the Master to refer to an MRI scan report showing evidence of brain injury attributed by medical witnesses to the accident indicated objective evidence which, not being distinguished or explained by the Master, authorised the setting aside of his award of damages; (4) As the Court of Appeal could not reassess, the matter should be returned for redetermination of the damages by a retrial.