NSW Caselaw
New South Wales Supreme Court
CITATION : HART v. CASHMAN & EVERINGHAM trading as CASHMAN & PARTNERS [2007] NSWSC 233
HEARING DATE(S) : 13 to 17, 20 to 23, 27, 28 March, 3, 13 April 2006
JUDGMENT DATE : 21 March 2007
JURISDICTION : Common Law
JUDGMENT OF : Hall J at 1
DECISION : Judgment for the defendants.
CATCHWORDS : Plaintiff claimed the defendant solicitors in breach of their duty to him by failing to comply with instructions to seek leave to adduce "fresh evidence" on the hearing of his damages appeal in 1995 of post traumatic stress disorder additional to cerebral or brain damage - plaintiff treated in 1973 in former Chelmsford Private Hospital - trial held in 1980 - lengthy delay in proceeding with appeal (1995) following a Royal Commission - Diagnosis of post traumatic stress disorder made in 1993 - questions as to what advice given concerning "fresh evidence" based on the diagnosis - solicitor entitled to rely upon counsel's advice - evidentiary requirements for expert medical opinion on a retrospective analysis of events over 20 years - evidentiary principles - expert opinion - requirement for cogent evidence on an application under s.106(2), Supreme Court Act 1970 to adduce evidence of post trial matters on an appeal - history of symptoms over many years - inconsistent evidence - whether historical substratum established necessary to support medical opinion evidence on the existence of post traumatic stress disorder symptoms and causation with treatment at former Chelmsford Private Hospital
LEGISLATION CITED : Supreme Court Act 1970 (NSW)
White Industries (Qld) Pty Limited v Flower & Hart (A Firm) (1998) 156 ALR 169 Wakim v McNally [2002] FCA 208 Baldwin v Lisicic (Court of Appeal, 20 April 1993) Makita V sprowles (2001) 52 NSWLR 729 Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 CASES CITED : Ramsay v Watson (1961) 108 CLR 642 Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 Day v Electronik Fabric Makers (Vic) Pty Limited [2004] VSC 24 Whisprun Pty Limited v Dixon (2003) 77 ALJR 1598 Stingel v Clark (2006) 228 ALR 229 Tawyer v NSW Insurance Ministerial Corporation (Court of Appeal, 28 June 1999) Radnedge v GIO (1987) 9 NSWLR 235
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