Owen v State of New South Wales [2004] NSWCA 165

New South Wales Court of Appeal

CITATION : Owen v State of New South Wales [2004] NSWCA 165 HEARING DATE(S) : 27 April 2004 JUDGMENT DATE : 9 June 2004

JUDGMENT OF : Beazley JA at 1; Ipp JA at 2; Campbell AJA at 3 DECISION : (1) The appeal is upheld in part. (2) The verdict for the respondent in respect of the alleged injury of 17 January 1996 is set aside and a new trial ordered in respect of that claim. (3) The costs order in respect of the first trial is set aside and the costs of that trial are to be determined by the trial judge on the retrial. (4) The cross appeal is dismissed with costs. (5) The respondent is to pay 65% of the Appellant's costs of the appeal.

CATCHWORDS : Appeal - compensation - personal injuries - damages - second injury exacerbating the first - cross claim - compulsory third party vehicular insurance. Appeal against District Court decision which dismissed claims for two personal injuries - Appeal concerning first injury (on stairs) dismissed - Appeal concerning second injury (alleged to have occurred whilst Appellant being transported involuntarily by the Respondent) allowed - new trial ordered limited to the incidents of the second alleged injury - Respondent to pay the Appellant 65% of the costs of the Appeal - Cross Claim by Respondent against 2nd Cross Respondent (seeking indemnity (including costs) under a compulsory third party policy) dismissed. LEGISLATION CITED : Motor Accidents Act 1988 Motor Vehicles (Third Party Insurance) Act 1942 Commercial and General Insurance Company Ltd v Government Insurance Office of New South Wales (1973) 129 CLR 374 Emad Trolley Pty Ltd v Shigar (2003) NSWCA 231; CASES CITED : Lee N Dunn & Sons Pty Ltd v McPhillamy (2000) NSWCA 343 ; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ; Yellow Express Courier Ltd v Government Insurance Office of New South Wales (1959) 60 SR (NSW) 22; Allan Thomas Owen (Appellant/First Cross Respondent) PARTIES : State of New South Wales (Respondent/Cross Appellant) Zurich Australian Insurance Limited (Second Cross Respondent) FILE NUMBER(S) : CA 40214/2003 S Norton SC/ M. Fraser for Appellant/First Cross Respondent COUNSEL : RC Tonner for Respondent/Cross Appellant D Feller SC for Second Cross Respondent Bryden's Law Office for Appellant/First Cross Respondent SOLICITORS : Crown Solicitor's Office for Respondent/Cross Appellant Vardanega Roberts for Second Cross Respondent