VALE v HO [1997] NSWCA 328

VALE v HO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and STEIN JJA 12 September 1997, 16 October 1997 [1997] NSWCA 328

TORTS — NEGLIGENCE — MEDICAL PROCEDURE — ASSESSMENT OF WITNESSES — The respondent performed on the appellant a surgical procedure to correct the appearance of her nose. Four months later the respondent performed a further corrective procedure to the appellant's nose. The appellant alleged that the respondent had been negligent in that he had failed to straighten her nose in the second procedure, and that he had failed to warn her of the risk that the second procedure might be unsuccessful. A primary issue at trial was whether the second operation was actually directed to straightening the appellant's nose. The trial judge preferred the evidence of the respondent and gave judgment against the appellant.

On appeal:

The appellant sought a new trial on the grounds that the trial judge:

1. erred in preferring the respondent's evidence to that of the appellant;

2. had misunderstood the appellant's case; and

3. had failed to explain his reasons adequately.

Held:

The appellant failed to demonstrate that the trial judge made any obvious mistake or that he failed to explain his reasons adequately.

Mason P I agree with Priestley JA.

Priestley JA

This is an appeal in which the appellant seeks a new trial on the basis that the trial judge who heard and decided her case in the District Court made mistakes in deciding it against her.

There was a good deal of detailed evidence before the trial judge and the case is of evident importance to the appellant.

However, without diminishing the significance of those matters, for the purposes of dealing with the appeal, what is relied on by the appellant in asserting that she is entitled to a new trial does not require lengthy statement.