Smith v Waygood [2005] NSWCA 276

New South Wales Court of Appeal

CITATION: Smith v Waygood [2005] NSWCA 276

HEARING DATE(S): 4 August 2005

JUDGMENT DATE: 26 August 2005

JUDGMENT OF: Tobias JA at 1; Mathews AJA at 67

DECISION: (1) Appeal allowed; (2) Set aside the verdict, judgment and orders made by her Honour Judge English on 19 December 2003 and in lieu thereof order that there be a new trial on the issue of damages; (3) Order that the costs to date of the proceedings in the District Court be reserved to the judge hearing the new trial; (4) Order that the respondent pay the appellant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

CATCHWORDS: EVIDENCE - Legal bias - On part of medical expert - Damages sought for injuries arising out of motor vehicle accident - Conflicting medical evidence - Whether primary judge erred in preferring evidence of medical practitioner retained by respondent on basis that it was the only "unbiased" medical report - APPEALS - Error in exercise of discretion - Whether primary judge's discretion miscarried in refusing leave to admit medical reports pursuant to Pt 28 r 8(6) District Court Rules - APPEALS - New trial - Whether substantial wrong or miscarriage occurred - Whether error deprived appellant of possibility of successful outcome - Whether properly conducted trial could have produced different result

Suitors' Fund Act 1951 District Court Rules 1973 LEGISLATION CITED: Supreme Court Rules 1970 District Court Expert Witness Code of Conduct

House v The King (1936) 55 CLR 499 CASES CITED: Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74

Maz Smith PARTIES: Gordon Waygood