Kessey v Golledge [1999] NSWCA 424

Kessey v Golledge [1999] NSWCA 424

The appellant failed to show error in the discretionary grant of leave to commence proceedings out of time or any prejudice depriving him of a fair trial. The evidence supported the finding that the 1992 motor accident aggravated the respondent's pre-existing spondylolisthesis and left her back vulnerable to further exacerbation, and the appellant did not prove that the July 1996 workplace fall was caused by unreasonable conduct or broke the chain of causation. However, because the case was a Thackham type case and s.151Z(1) of the Workers Compensation Act 1987 did not apply, deductions and adjusted discounts had to be made for workers compensation payments and potential future...

Jurisdiction
Australia
Judgment Date
26 November 1999
Procedural Posture
Appeal From Interlocutory Orders and From Assessment of Damages in Motor Accident Personal Injury Proceedings / Court of Appeal
Outcome
Appeals from Master Greenwood and Dowd J dismissed; appeal from Sinclair DCJ allowed in part; damages judgment reduced; appellant ordered to pay respondent's costs of each appeal.
Legal Topics
['extension of Time Under Motor Accidents Act 1988' 'appeals From Interlocutory Orders' 'assessment of Damages' 'causation and Novus Actus Interveniens' 'deduction of Workers Compensation Payments' 'new Points on Appeal' 'costs of Appeal']
['personal Injury' 'motor Accidents' 'limitation of Actions' 'civil Procedure' 'workers Compensation' 'damages'] ['extension of Time Under Motor Accidents Act 1988' 'appeals From Interlocutory Orders' 'assessment of Damages' 'causation and Novus Actus Interveniens' 'deduction of Workers Compensation Payments' 'new Points on Appeal' 'costs of Appeal']

Case Brief

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Procedural Posture

Appeal From Interlocutory Orders and From Assessment of Damages in Motor Accident Personal Injury Proceedings / Court of Appeal

Legal Issues

  1. 1 ['Whether leave to commence proceedings out of time under s.52(4) of the Motor Accidents Act 1988 was properly granted by Master Greenwood and upheld by Dowd J.' 'Whether Ramton v Cassin required interlocutory limitation appeals to await determination until after the substantive hearing.' 'Whether the July 1996 workplace fall was a novus actus interveniens breaking the chain of causation from the July 1992 motor vehicle accident.' 'Whether deductions should be made from damages for workers compensation payments received and potential future payments consistently with Kempsey District Hospital v Thackham.' 'Whether the appellant should be permitted on appeal to rely on points not argued at the trial concerning deductions from damages.' 'Whether the damages assessment should be adjusted and what costs order should be made.']

Ratio Decidendi

The appellant failed to show error in the discretionary grant of leave to commence proceedings out of time or any prejudice depriving him of a fair trial. The evidence supported the finding that the 1992 motor accident aggravated the respondent's pre-existing spondylolisthesis and left her back vulnerable to further exacerbation, and the appellant did not prove that the July 1996 workplace fall was caused by unreasonable conduct or broke the chain of causation. However, because the case was a Thackham type case and s.151Z(1) of the Workers Compensation Act 1987 did not apply, deductions and adjusted discounts had to be made for workers compensation payments and potential future...

Court Disposition

Appeals from Master Greenwood and Dowd J dismissed; appeal from Sinclair DCJ allowed in part; damages judgment reduced; appellant ordered to pay respondent's costs of each appeal.

Orders

  • ['Appeal from the decision of Master Greenwood dismissed.' 'Appeal from the decision of Dowd J dismissed.' 'Appeal from decision of Sinclair DCJ upheld in part.' 'In lieu of judgment for the respondent in the sum of $412,046 there be judgment for the respondent in the sum of $345,074.25.' "The appellant pay the...