Seary v White (No 2) [2008] NSWDC 18

Reported Decision : 6 DCLR (NSW) 289

New South Wales District Court

CITATION: Seary v White (No 2) [2008] NSWDC 18

HEARING DATE(S): 22 June 2007

JUDGMENT DATE: 8 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: The statements of reasons of the MAS assessors were not admitted into evidence

CATCHWORDS: EVIDENCE - Admissibility of the certificates of MAS assessors and their statements of reasons - expertise - the certificates were admitted - the statements of reasons were excluded because their probative value was outweighed by the unfair prejudice that their admission would visit upon the defendant due to the inability to cross-examine the experts

LEGISLATION CITED: Evidence Act 1995 (NSW): s 79, s 135 Motor Accidents Compensation Act 1999: s 61(9)

CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85].

PARTIES: Elizabeth Anne Seary (Plaintiff) Glen White (Defendant)

FILE NUMBER(S): 4757/06

COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff) Mr K Rewell SC (Defendant:)

SOLICITORS: Wyatt Attorneys (Plaintiff) TL Lawyers (Defendant:)

JUDGMENT Interlocutory judgment on an application to admit the reasons of MAS assessors into evidence.

HIS HONOUR: These are my reasons:

(1) Ms Seary was injured in a motor accident on 13 November 2002 and commenced proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. She alleged that as a result of the accident she sustained, in particular, an injury to the brain; orthopaedic injuries to her neck and back; and a secondary psychological condition.