Divall v Mifsud [2005] NSWCA 447

Divall v Mifsud [2005] NSWCA 447

The trial judge failed to properly consider the effect of the finding of untruthfulness by the plaintiff on his overall credibility; the process by which privilege was held to be waived in relation to Mr Kent’s statement did not satisfy the requirements of knowing and voluntary waiver under s 122 of the Evidence Act 1995; and the case must be remitted for a new trial as to liability, including contributory negligence, but with damages assessed.

Jurisdiction
Australia
Judgment Date
14 December 2005
Procedural Posture
Appeal and New Trial / Appeal From District Court – Judgment Set Aside and Remitted for New Trial as to Liability Including Contributory Negligence
Outcome
Verdict and judgment set aside; matter remitted for new trial as to liability including contributory negligence; damages assessed; party/party costs orders; certificate under Suitors' Fund Act
Legal Topics
['personal Injury – Motor Vehicle Accident' 'contributory Negligence' 'legal Professional Privilege' 'waiver of Privilege' 'judicial Reasoning and Duty to Give Reasons']
['torts' 'civil Procedure' 'evidence'] ['personal Injury – Motor Vehicle Accident' 'contributory Negligence' 'legal Professional Privilege' 'waiver of Privilege' 'judicial Reasoning and Duty to Give Reasons']

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Procedural Posture

Appeal and New Trial / Appeal From District Court – Judgment Set Aside and Remitted for New Trial as to Liability Including Contributory Negligence

Legal Issues

  1. 1 ['Whether the trial judge erred by accepting the plaintiff’s version of events without assessing the effect of untruthful evidence on his credit' 'Whether legal professional privilege over a witness statement was waived by failure to object' 'Assessment of contributory negligence' 'Whether causation could be raised on appeal when not put at trial' 'Proper basis for assessment of non-economic damages in a personal injury case']

Ratio Decidendi

The trial judge failed to properly consider the effect of the finding of untruthfulness by the plaintiff on his overall credibility; the process by which privilege was held to be waived in relation to Mr Kent’s statement did not satisfy the requirements of knowing and voluntary waiver under s 122 of the Evidence Act 1995; and the case must be remitted for a new trial as to liability, including contributory negligence, but with damages assessed.

Court Disposition

Verdict and judgment set aside; matter remitted for new trial as to liability including contributory negligence; damages assessed; party/party costs orders; certificate under Suitors' Fund Act

Orders

  • ['Verdict and judgment of Judge Armitage set aside.' 'The matter to be remitted to the District Court for a new trial limited to the issue of liability including contributory negligence.' 'Damages be assessed at $162,100.' 'The costs of the first trial to be determined by the judge hearing the retrial.' "The...