Mason v Demasi [2009] NSWCA 227

New South Wales Court of Appeal

CITATION: Mason v Demasi [2009] NSWCA 227

HEARING DATE(S): 26 May 2009

JUDGMENT DATE: 31 July 2009

JUDGMENT OF: Basten JA at 1; Simpson J at 10

DECISION: (i) Appeal allowed; (ii) Judgment of the District Court of 3 April 2008 quashed; (iii) The appellant's claim be remitted to the District Court for a re-trial limited to the question of damages; (iv) The respondents to pay the appellant's costs.

CATCHWORDS: APPEAL – approach taken by trial judge resulted in inadequate award of damages – trial judge failed adequately to assess appellant's psychological/psychiatric condition – reliance placed upon psychiatrist's report in assessing psychological/psychiatric condition misplaced – no proper basis for findings adverse to appellant – correct approach outlined – comparison of appellant's pre-injury and post-injury functioning – credibility findings adverse to plaintiff not warranted on proper examination of evidence – evidence by witness unfairly discounted – failure by psychiatrist to diagnose post-injury psychological condition – failure to identify pre-injury psychological condition – reasoning unsustainable – matter remitted to District Court for re-trial limited to question of damages - DAMAGES – assessment of damages by trial judge for personal Injury sustained as a result of a dog attack – psychological injury

Civil Liability Act 2002 LEGISLATION CITED: District Court Act 1973 Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638

Penelope Jayne Mason (Appellant) PARTIES: Antonio Demasi (First Respondent) Giovannina Demasi (Second Respondent)