NSW Caselaw
New South Wales Court of Appeal
CITATION: Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
HEARING DATE(S): 20 October 2005
JUDGMENT DATE: 21 November 2005
JUDGMENT OF: Tobias JA at 1; Gzell J at 98
DECISION: (a) Appeal allowed; (b) That the verdict, judgment and orders made by Hughes DCJ on 30 April 2004 be set aside; (c) That there be a new trial limited to damages; (d) That the costs of the first trial are to abide the result of the second trial; (e) That the respondent is to pay the appellant's costs of the appeal and to have a certificate under The Suitors' Fund Act 1951, if otherwise qualified
CATCHWORDS: DAMAGES – Previous injury – Whether medical evidence revealed aggravation – Whether diminution in capacity to work – Threshold for award of damages for non-economic loss – Civil Liability Act 2002 - EVIDENCE – Credibility – Reliability of witness – Primary judge's findings based on video evidence – Whether findings subject to appellate intervention
Civil Liability Act 2002 LEGISLATION CITED: The Suitors' Fund Act 1951
Fox v Percy (2003) 214 CLR 118 CASES CITED: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Barry Ferguson PARTIES: McDonalds Australia Pty Limited
FILE NUMBER(S): CA 40571/04
A: S Norton SC / Ms I Welsh COUNSEL: R: A.M. Colefax SC / J B Turnbull
A: Maxwell Berghouse & Ives, Smithfield SOLICITORS: R: Hunt & Hunt, Sydney
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 4587/02
LOWER COURT JUDICIAL OFFICER: Hughes J
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40571/04 DC 4587/02
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