SAUNDERS v McDONALD and ORS [1998] NSWCA 202

SAUNDERS v McDONALD and ORS [1998] NSWCA 202

The trial judge erred in refusing to admit Dr Bennett's lay observations of the appellant, as such evidence was not 'expert evidence' for the purposes of Pt28 r8 or was in substance covered by his report, and, in any event, given the introduction of potentially misleading video evidence, the trial judge's discretion miscarried. This wrongful rejection of evidence occasioned a substantial miscarriage of justice, necessitating a new trial on damages.

Parties
Appellant: Saunders; First Respondent: McDonald; Second Respondent: (Unnamed second respondent)
Jurisdiction
Australia
Judgment Date
20 November 1998
Procedural Posture
Appeal / Supreme Court of New South Wales, Court of Appeal
Outcome
Appeal allowed
Legal Topics
Admissibility of Expert Evidence, Miscarriage of Justice, New Trial Due to Wrongly Rejected Evidence
Evidence Practice and Procedure Personal Injury Admissibility of Expert Evidence Miscarriage of Justice New Trial Due to Wrongly Rejected Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Saunders

Appellant

McDonald

First Respondent

(Unnamed second respondent)

Second Respondent

Procedural Posture

Appeal / Supreme Court of New South Wales, Court of Appeal

Legal Issues

  1. 1 Whether the trial judge erred in refusing to allow Dr Bennett, an expert witness, to give evidence of personal observations of the appellant in her workplace
  2. 2 Whether, if such evidence had been admitted, it would have affected the outcome such that a new trial should be ordered

Ratio Decidendi

The trial judge erred in refusing to admit Dr Bennett's lay observations of the appellant, as such evidence was not 'expert evidence' for the purposes of Pt28 r8 or was in substance covered by his report, and, in any event, given the introduction of potentially misleading video evidence, the trial judge's discretion miscarried. This wrongful rejection of evidence occasioned a substantial miscarriage of justice, necessitating a new trial on damages.

Court Disposition

Appeal allowed

Orders

  • Verdicts and judgments in the court below set aside
  • Order a new trial on the issue of damages in each matter