TAWYER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 304

TAWYER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 304

The fresh evidence of hepatitis C infection should be admitted because the plaintiff could not reasonably have known of the infection before trial, the evidence would probably have produced a different outcome regarding damages, and it was credible; thus, the damages verdict must be set aside and the issue remitted for a retrial.

Parties
Plaintiff/cross Appellant: Tawyer; Defendant/appellant/cross Respondent: New South Wales Insurance Ministerial Corporation
Jurisdiction
Australia
Judgment Date
28 June 1994
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal From District Court Decision
Outcome
Appeal dismissed, cross appeal allowed, damages verdict set aside, retrial ordered on damages only
Legal Topics
Admission of Fresh Evidence, Appeal Procedure, Damages Assessment, Retrial on Damages
Practice and Procedure Personal Injury Admission of Fresh Evidence Appeal Procedure Damages Assessment Retrial on Damages

Case Brief

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Parties

Tawyer

Plaintiff/cross Appellant

New South Wales Insurance Ministerial Corporation

Defendant/appellant/cross Respondent

Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal From District Court Decision

Legal Issues

  1. 1 Whether fresh evidence of hepatitis C infection discovered after trial should be admitted on appeal
  2. 2 Whether the appellant plaintiff was unreasonable in failing to discover the condition before trial
  3. 3 Whether the damages assessment required a retrial in light of the new evidence

Ratio Decidendi

The fresh evidence of hepatitis C infection should be admitted because the plaintiff could not reasonably have known of the infection before trial, the evidence would probably have produced a different outcome regarding damages, and it was credible; thus, the damages verdict must be set aside and the issue remitted for a retrial.

Court Disposition

Appeal dismissed, cross appeal allowed, damages verdict set aside, retrial ordered on damages only

Orders

  • Appeal dismissed with costs
  • Cross appeal allowed with costs