JUNG v SON [1998] NSWCA 120

JUNG v SON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and STEIN JJA 1 December 1998, 18 December 1998

[1998] NSWCA 120

NEGLIGENCE — causation — admissibility of evidence — 'degrading conduct' — s84, Evidence Act 1995 — insufficient reasons — substantial wrong or miscarriage of justice — new trial

This appeal arises from a claim for damages for negligence arising from the removal of a wisdom tooth. After an extensive hearing, a verdict was entered for the defendant dentist.

Issues raised on appeal include:

1. whether the trial judge misdirected himself on the issue of causation;

2. whether a written admission made by the defendant was wrongfully rejected by reason of s84 of the Evidence Act 1995 on the basis that it was influenced by 'degrading conduct';

3. whether the judge had given sufficient reasons for his decision.

The appellant submits that a substantial wrong or miscarriage has occurred and seeks a new trial pursuant to Pt51, r23 of the Supreme Court Rules.

Held:

1. The admission was not influenced by degrading conduct and consequently the document was not rendered inadmissible by reason of s84 of the Evidence Act. Nevertheless, no substantial wrong or miscarriage resulted from the rejection of the evidence.

2. The failure of the judge to give reasons for his conclusions on causation was a serious error of law. While a judge is not required to state reasons for every aspect of the case, the reasons must be sufficient to satisfy the requirements of Pettit v Dunkley. The error is such that a substantial wrong or miscarriage has been occasioned.

Pettit v Dunkley [1971] 1 NSWLR 376 Lown v Woods (Unreported Court of Appeal, 5 February 1996) March v Stramare (1990-1991) 171 CLR 506 applied

Handley JA I agree with Stein JA.

Meagher JA I agree with Stein JA. Stein JA