GREATER WESTERN AREA HEALTH SERVICE v EDWARDS [2005] NSWCA 387

New South Wales Court of Appeal

CITATION: GREATER WESTERN AREA HEALTH SERVICE v EDWARDS [2005] NSWCA 387

HEARING DATE(S): 26 October 2005

JUDGMENT DATE: 26 October 2005

JUDGMENT OF: Mason P at 1; Hodgson JA at 34; Tobias JA at 41

DECISION: Appeal upheld. New trial, except as to damages

CATCHWORDS: PROCEDURAL FAIRNESS – negligence action – injury suffered while getting off exercise bike during physiotherapy – inconsistent versions from plaintiff and physiotherapist – credibility conflict – issue of the capacity of the physiotherapist to handle the plaintiff – procedural unfairness – where trial judge's finding lay outside the particulars and the matters raised at trial – where cross-examination was insufficient to raise the issue of weight discrepancy – order for new trial. (ND)

LEGISLATION CITED: Civil Liability Act

Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 CASES CITED: Kassem v Crossley & Anor [2000] NSWCA 276

GREATER WESTERN AREA HEALTH SERVICE PARTIES: Pamella Dawn EDWARDS

FILE NUMBER(S): CA 40434/05

Appellant: D Davies SC/ R Weinstein COUNSEL: Respondent: P Arden SC

Appellant: Frances Allpress, Solicitor, GIO Australia SOLICITORS: Respondent: Savage, Lawyers, Orange

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 40/03

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40434/05

MASON P HODGSON JA TOBIAS JA