STATE FORESTS OF NSW v Scott Leslie DINNERVILLE [2004] NSWCA 127

STATE FORESTS OF NSW v Scott Leslie DINNERVILLE [2004] NSWCA 127

No substantial wrong or miscarriage was shown. The challenged statement that the report evidence had not been able to be challenged was properly understood, in context, as a reference to the historical fact that the doctors were not called and not cross-examined, not as a misstatement of Part 28 r 9 or as an adverse comment on the defendant's case. The trial judge repeatedly left the weight of written medical reports to the jury, and it was open to the jury to give greater weight to oral evidence that had been tested. In the circumstances, including the lack of objection at trial or after summing up, the directions did not lack the balance required to warrant a new trial.

Jurisdiction
Australia
Judgment Date
06 April 2004
Procedural Posture
Appeal/application for a New Trial in a District Court Personal Injury Negligence Action / Court of Appeal Appeal From District Court Jury Verdict and Judgment
Outcome
Appeal dismissed with costs; application for indemnity costs refused.
Legal Topics
['new Trial After Jury Verdict' 'expert Medical Reports' 'oral and Written Expert Evidence' 'jury Directions' 'negligence Causing Carpal Tunnel Syndrome' 'costs']
['civil Procedure' 'evidence' 'torts' 'personal Injury'] ['new Trial After Jury Verdict' 'expert Medical Reports' 'oral and Written Expert Evidence' 'jury Directions' 'negligence Causing Carpal Tunnel Syndrome' 'costs']

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Procedural Posture

Appeal/application for a New Trial in a District Court Personal Injury Negligence Action / Court of Appeal Appeal From District Court Jury Verdict and Judgment

Legal Issues

  1. 1 ["Whether the trial judge's directions about medical evidence given partly orally and partly by written reports caused a substantial wrong or miscarriage warranting a new trial." "Whether the statement that doctors' evidence in written reports had not been able to be challenged was a positive misdirection." 'Whether the jury should have been directed not to draw an adverse inference from the defendant not calling doctors to give oral evidence.' "Whether the ordinary costs order should be varied to indemnity costs because of the respondent's offer to compromise the appeal."]

Ratio Decidendi

No substantial wrong or miscarriage was shown. The challenged statement that the report evidence had not been able to be challenged was properly understood, in context, as a reference to the historical fact that the doctors were not called and not cross-examined, not as a misstatement of Part 28 r 9 or as an adverse comment on the defendant's case. The trial judge repeatedly left the weight of written medical reports to the jury, and it was open to the jury to give greater weight to oral evidence that had been tested. In the circumstances, including the lack of objection at trial or after summing up, the directions did not lack the balance required to warrant a new trial.

Court Disposition

Appeal dismissed with costs; application for indemnity costs refused.

Orders

  • ['Appeal dismissed with costs.' 'The Court was not persuaded to vary the ordinary order for costs.']