Dawson v Selby [2001] NSWCA 287

New South Wales Court of Appeal

CITATION : Dawson v Selby [2001] NSWCA 287 FILE NUMBER(S) : CA 40962/00 HEARING DATE(S) : 29 August 2001 JUDGMENT DATE : 29 August 2001

PARTIES : Daniel Dawson (Appellant) David Laurence Selby (Respondent) JUDGMENT OF : Mason P at 22; Ipp AJA at 23; Studdert J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 3307/99 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

COUNSEL : C. Leahy (Appellant) L. Morris QC/M.A. McDonogh (Respondent) SOLICITORS : Owen Hodge Lawyers Abbott Tout CATCHWORDS : Negligence - motor vehicle accident - claim for damages for personal injuries - negligence proved but no damages awarded - failure of judge to express findings and to state reasons - retrial ordered. Motor Accidents Act LEGISLATION CITED : Suitors Fund Act Supreme Court Act DECISION : Appeal allowed in part

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40962/00 MASON P IPP AJA STUDDERT J

Wednesday 29 August 2001

DANIEL CORY DAWSON v DAVID LAURENCE SELBY

JUDGMENT

1 STUDDERT J: The appellant, Daniel Cory Dawson, sued the respondent, David Laurence Selby, in the District Court, claiming damages for negligence. The claim arose out of an accident in Parraweena Road, Taren Point on 16 December 1997. The appellant succeeded on the issue of liability. The trial judge, her Honour Acting Judge Gamble, found the respondent was negligent in the circumstances of the accident, but that the appellant was guilty of contributory negligence. Her Honour apportioned thirty per cent of the fault for the accident to the appellant. Those findings on liability have not been the subject of challenge in this Court. 2 Notwithstanding the finding that the respondent was negligent, the judge directed the entry of judgment for the respondent because her Honour was not satisfied that the appellant had proved any entitlement for damages. As to this the conclusion which her Honour expressed was in these terms: "On the evidence as presented I am unable to be satisfied on the balance of probabilities that the disabilities the plaintiff is suffering are attributable to the accident of 16 December 1997. I therefore make no order for damages." 3 The appellant challenges the findings as to damages in this Court and seeks orders that the verdict and judgment be set aside and that damages be assessed by this Court, or alternatively that there be a new trial limited to damages. 4 The respondent has today filed in Court an amended notice of cross-appeal in which the respondent seeks an order that the verdict and judgment be set aside and that there be an order for a new trial for the assessment of damages. So it is that before this Court neither side seeks to preserve the judgment of the Court below. 5 It is necessary to examine the case presented by the appellant as to damages and the manner in which her Honour considered that case in her judgment in order to determine whether this Court can or should accede to the application made on behalf of the appellant that this Court assess the appropriate damages. 6 The medical evidence in the appellant's case was presented in documentary form only. It consisted of hospital records, medical reports and psychological reports. The only expert witness called on damages was Ms Watson, a psychologist. The oral evidence relevant to damages was given by the appellant and his mother. The appellant also called his employer at the time of the accident and this witness spoke favourably of the appellant as an employee. 7 The appellant claimed to have suffered various injuries and these are broadly identified in the judgment. The injuries consisted of