Keith v Gal [2013] NSWCA 339

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Keith v Gal [2013] NSWCA 339 Hearing dates: 30 July 2013 Decision date: 15 October 2013 Before: Emmett JA at [1]; Gleeson JA at [6]; Simpson J at [156] Decision: 1. Appeal allowed. 2. Set aside the orders made by O'Toole DCJ on 4 May 2012. 3. Remit the matter to the District Court for a new trial on damages. 4. Costs of the first trial to abide the event of the second trial. 5. Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - grounds - failure to give adequate reasons - where limited cross-examination - where primary judge failed to resolve factual issues raised by lay and expert evidence - where primary judge's reasoning is seriously deficient - new trial required

DAMAGES - measure of damages - personal injuries - where liability admitted - whether pre-existing injuries were the cause of the appellants retirement Legislation Cited: Suitors' Fund Act 1951 Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130 Mifsud v Campbell (1991) 21 NSWLR 725 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Palmer v Clarke (1989) 19 NSWLR 158 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Category: Principal judgment Parties: Clifford Keith (Appellant) Adrian Gal (First Respondent) Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs (Second Respondent) Representation: Counsel: D Murr SC with M Fraser (Appellant) J Turnbull with C Mulvey (Respondents) Solicitors: Brydens Compensation Lawyers (Appellant) Curwoods Lawyers (Respondents) File Number(s): 2012/161730 Decision under appeal Jurisdiction: 9101 Citation: Clifford Keith v Adrian Gal and Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs Date of Decision: 2012-04-27 00:00:00 Before: O'Toole DCJ File Number(s): 2008/316397