Walden v Black [2006] NSWCA 170

New South Wales Court of Appeal

CITATION: Walden v Black [2006] NSWCA 170 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 February 2006

JUDGMENT DATE: 5 July 2006

JUDGMENT OF: Beazley JA at 1; Tobias JA at 7; Bryson JA at 127

DECISION: a) Appeal allowed; b) Set aside the judgment and verdict of her Honour Judge English of 8 October 2004 and in lieu thereof order that there be a new trial as to damages; c) The respondent to pay the appellant's costs of the appeal but to have with respect thereto a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: EVIDENCE – witnesses – reliability – appeal against adverse credit finding – role of appellate court – considerations – demeanour – time elapsed between hearing and delivery of judgment - TORTS – negligence – wrongful death – death of spouse – damages – assessment – principles – Compensation to Relatives Act 1897 – domestic, farming and professional services provided by deceased – estimate of time devoted to activities – estimate of services that would have been provided in future - APPEALS – reviewable error – principles – natural justice – whether miscarriage of justice – whether new trial should be ordered – whether new trial would result in different outcome for successful party on appeal

Compensation to Relatives Act 1897 Fatal Accidents Act 1946 (UK) (Lord Campbell's Act) LEGISLATION CITED: Suitor's Fund Act 1951 Supreme Court Act 1970 s 46A Supreme Court Rules 1970

CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Daniels v Jones (1961) 1 WLR 1103 De Sales v Ingrilli (2002) 212 CLR 338 Devries v Australian National Railways Commission (1993) 177 CLR 472 Escobar v Spindaleri (1986) 7 NSWLR 51 Fox v Percy (2003) 214 CLR 118 Gillett v Callagher [1963] ALR 392 Gullifer v Pohto [1978] 2 NSWLR 353 Jones v National Coal Board [1957] 2 QB 55 CASES CITED: Kuhlewin v Fowke [2000] QSC 404 Lewis v Dalton (1986) Aust Torts Reports 80-045 Nguyen v Nguyen (1990) 169 CLR 245 Parker v Commonwealth (1965) 112 CLR 295 Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 Public Trustee (WA) v Nickisson (1964) 111 CLR 500 Roads & Traffic Authority v Jelfs (1999) NSWCA 179 Rosenberg v Percival (2001) 205 CLR 434 Rowe v Scanlan [1969] 1 NSWR 43 Stead v State Government Insurance Commission (1986) 161 CLR 141 Swain v Waverley Municipal Council (2005) 220 CLR 517