Grech v Sutton [2009] NSWCA 23

Grech v Sutton [2009] NSWCA 23

The exclusion of Dr Raju's report was within the trial judge's discretion as it was not served in accordance with the Uniform Civil Procedure Rules, and allowing its late admission would have been unfair. Even if the histories given to doctors had been admitted as admissions, they would not have established contributory negligence in the circumstances found. Credibility findings based on accepted law and absence of incontrovertible evidence could not be overturned. Thus, the appeal fails.

Jurisdiction
Australia
Judgment Date
26 February 2009
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed.
Legal Topics
['motor Vehicle Accident' 'contributory Negligence' 'admissibility of Evidence' 'medical Reports' 's 136 Evidence Act 1995' 'motor Accident Compensation Act 1999']
['torts'] ['motor Vehicle Accident' 'contributory Negligence' 'admissibility of Evidence' 'medical Reports' 's 136 Evidence Act 1995' 'motor Accident Compensation Act 1999']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing to revoke an order limiting the effect of evidence pursuant to s 136 Evidence Act 1995' 'Whether there was sufficient evidence to establish contributory negligence by the respondent' "Whether the trial judge erred in refusing to admit Dr Raju's report"]

Ratio Decidendi

The exclusion of Dr Raju's report was within the trial judge's discretion as it was not served in accordance with the Uniform Civil Procedure Rules, and allowing its late admission would have been unfair. Even if the histories given to doctors had been admitted as admissions, they would not have established contributory negligence in the circumstances found. Credibility findings based on accepted law and absence of incontrovertible evidence could not be overturned. Thus, the appeal fails.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "By consent the appellant to pay the respondent's costs on an indemnity basis from 4 March 2008."]