COMMONWEALTH OF AUSTRALIA v STANKOWSKI [2005] NSWCA 106

New South Wales Court of Appeal

CITATION: COMMONWEALTH OF AUSTRALIA v STANKOWSKI [2005] NSWCA 106

HEARING DATE(S): 1 February 2005, 2 February 2005, 3 February 2005

JUDGMENT DATE: 13 April 2005

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 142; Bryson JA at 153

DECISION: 1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff in the sum of $377,851.14 and in lieu thereof order that there be a verdict and judgment for the plaintiff in the sum of $369,956.90; 3 Otherwise confirm the orders of O'Keefe J in relation to the payment of costs of the trial and interest on costs; 4 The appellant to pay the respondent's costs of the appeal; 5 Cross-appeal dismissed with costs.

CATCHWORDS: Negligence - post traumatic stress disorder - whether trial Judge failed to use or palpably misused his advantage - whether findings were inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable - Evidence - expert opinion evidence - whether histories assumed by experts must be sufficiently like those established to render the opinion of the expert of any value - Damages - whether general damages manifestly excessive - damages for loss of chance - duplication of damages - Procedure - discharge of jury - whether apprehended bias - whether procedural unfairness suffered - Costs - interest on costs - interest on costs to accrue from 21 days of the filing or lodgement for assessment by the plaintiff of the bill of costs - whether award permitted by section 95(3) of the Supreme Court Act 1970.

Evidence Act 1995 LEGISLATION CITED: Legal Profession Act 1987 Migration Act 1958

Brittain v The Commonwealth of Australia [2004] NSWCA 83 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Minister Administering the Environmental Planning qnd Assessment Act 1979 v Carson (1994) 35 NSWLR 342 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 CASES CITED: Norris v Blake (No 2) (1997) 41 NSWLR 49 Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 Re Bank Employees Union; ex parte Citicorp Australia Ltd (1989) 167 CLR 513 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Todorovic v Waller (1981) 150 CLR 402 Webb v The Queen (1994) 181 CLR 41