Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay [2009] NSWCA 221

New South Wales Court of Appeal

CITATION: Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay [2009] NSWCA 221

HEARING DATE(S): 20 July 2009

JUDGMENT DATE: 10 August 2009

JUDGMENT OF: Ipp JA at 1; McColl JA at 166; Handley AJA at 167

(a) Mr Gyimah's appeal is upheld. (b) Zurich's appeal is upheld. (c) The orders made by Nield DCJ are set aside. DECISION: (d) The claim by Mr Mackay against Mr Gyimah and the claim by Zurich against Dr Raman are remitted to the Common Law Division of the Supreme Court. (e) Mr Mackay to pay Mr Gyimah's costs of the appeal and Dr Raman to pay Zurich's costs of the appeal. (f) Mr Mackay and Dr Raman to have certificates under the Suitors' Fund Act 1951. (g) The costs of the trial before Nield DCJ are to be determined by the judge hearing the retrial.

CATCHWORDS: COURTS AND JUDICIAL SYSTEM - dispute between experts - duty of trial judge to determine whether one expert should be preferred and to make appropriate findings - where trial judge resolved differences between experts by accepting the opinion that accorded with the account of facts given by lay witnesses - fact finding - where trial judge relied upon credibility and demeanor of lay witnesses - whether trial judge failed to have proper regard to certain pieces of objective evidence - whether findings of fact involved a failure to use, or a misuse of the advantage of the trial judge.

LEGISLATION CITED: Motor Accidents Compensation Act 1999 Suitors' Fund Act 1951

CATEGORY: Principal judgment

Abalos v Australian Postal Commission [1990] HCA 4; (1990) 171 CLR 167 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 CASES CITED: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Insurance Australia Ltd v Dickason [2007] ACTCA 13 Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89 SRA v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127