STATE OF NEW SOUTH WALES v BURTON [2008] NSWCA 319

New South Wales Court of Appeal

CITATION: STATE OF NEW SOUTH WALES v BURTON [2008] NSWCA 319

HEARING DATE(S): 8 October 2008

JUDGMENT DATE: 27 November 2008

JUDGMENT OF: Allsop P at 1; Basten JA at 2; Handley AJA at 119

(1) Allow the appeal and set aside the orders made in the District Court on 7 June and 15 June 2007.

(2) In lieu thereof give judgment for the plaintiff in the sum of $80,000, such judgment to have effect on and from 7 June 2007.

DECISION: (3) Give leave to the parties to file written submissions in respect of appropriate costs orders, if such orders cannot be agreed to, within the following timetable:

(a) Appellant to file and serve submissions on or before 12 December 2008; (b) Respondent to file and serve submissions on or before 19 December 2008,

such submissions to address the appropriate costs orders to be made in respect of the first trial, the remittal hearing and this appeal.

CATCHWORDS: APPEALS – assessment of damages – whether Court of Appeal should assess damages for itself or remit to lower court – where case already remitted twice before – just, quick and cheap resolution of real issues in proceedings – Civil Procedure Act 2005 (NSW), s 56(1) and (2) - DAMAGES – loss of a chance – burden of proof – intervention and treatment for post-traumatic stress disorder – assessment of loss of a chance of a "better outcome" – assessment of degree of likelihood of better outcome – where harm resulted from initial exposure to trauma and, through defendant's negligence, not ameliorated by appropriate care and treatment – likelihood of plaintiff revealing intensity of feelings and responses – what treatment would have been offered – chance of accepting treatment – likely effect of treatment – where aetiology of plaintiff's condition uncertain – effect better outcome would have had on plaintiff's financial loss - EVIDENCE – experts – intervention and treatment for post-traumatic stress disorder – evaluation of medical experts' evidence – where experts' evidence imprecise – whether earlier treatment leads to better outcome – whether "compulsory debriefing" would have assisted or hindered plaintiff – utility of relying on studies - PRACTICE & PROCEDURE – remittal – nature of court's jurisdiction on remittal – scope of order remitting for damages to be assessed on loss of a chance basis – whether trial judge bound to accept assumptions underlying order of remitter as factually correct or whether entitled to depart from them – whether statement of claim should have been amended to allege with greater precision better outcome – whether terms of remitter required fresh finding as to liability - WORDS & PHRASES – "remitter"