Nominal Defendant v Byrne

Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40160 of 2001 DC 70240 of 1998 MEAGHER JA STEIN JA Thursday, 14 February 2002 THE NOMINAL DEFENDANT & ANOR v NORA MARY BYRNE Judgment 1 MEAGHER JA : Miss Byrne sued for injuries suffered by her in a motor vehicle accident which occurred at 6.50pm on 12 April 1997 on the F3 Freeway near the Ku-ring-gai Chase Road (said to be in or near Sydney). She sued two defendants: one, pursuant to s28 of the Motor Accidents Act 1988, was the Nominal Defendant, because a vehicle whose identity is unknown let fall a “lounge suite” immediately on the road in front of her, thus impeding her further progress in the lane of traffic in which she was travelling; and the other was a Mr Slattery who was driving his vehicle close – too close, as it happened – behind her. English DCJ found that both defendants were negligent and that Miss Byrne was not guilty of contributory negligence. She awarded Miss Byrne a verdict in the sum of $711,794.40. Her doctors were of the view that her back and neck injuries were of considerably gravity; the defendants’ doctors of the view that they were of only moderate gravity.

Although many points were taken in the Notice of Appeal, Mr Webb QC who argued the case for the appellants with his customary skill, conceded that there was only one point which mattered. In her judgment, her Honour said: “The only medical reports tendered on behalf of the defendants were those from Doctor Tarrant”. This meant that her Honour not only failed to take cognisance of the defendants’ evidence, but positively denied it existed. So it would seem, because the defendants had relied on reports from four doctors: Drs. Price, Harvey, Tarrant and Bowen. Learned counsel for the defendants, Mr Fennell, conceded that her Honour’s statement was wholly erroneous. No real explanation has been offered for her Honour’s remarkable mistake.

I might add that 47 medical reports were tendered, 8 of them (2 from each of the 4 doctors I have named) on behalf of the defendants, 39 on behalf of the plaintiff. Needless to say, as is the custom these days, not a single doctor was called to give evidence from the witness box. Her Honour said she believed her plaintiff’s doctors, particularly a Dr Searle. This is hardly surprising, because her Honour, after a careful analysis of her evidence, found that Miss Byrne was, in all respects, a witness of truth, and Dr Searle’s evidence was supportive of her testimony.

Dr Searle opined that, because of Miss Byrne’s injuries, “she is permanently unfit for work which requires sustaining the neck flexion posture, strong or repetitive movements of the upper limbs, prolonged sitting or prolonged standing, lifting or repeated bending, or regularly travelling moderate distances”. In argument, Mr Webb QC was not disposed to challenge this opinion.

Obviously, her Honour could not be expected to discuss at length each of the 47 documents in question. She must have been aware of the defendant’s documents because the plaintiff gave evidence about seeing their authors, and they were in fact tendered; moreover, in her judgment, she said “on 28 July 1999 she saw Dr Harvey for the first defendant. On 23 August 1999 she was Mrs Chadwick, psychologist [scili also on behalf of the defendant]”, so that her Honour can hardly be credited with an outright denial of the existence of medical evidence on behalf of the defendants emanating from persons other than Dr Tarrant.

Moreover, as Mr Fennell pointed out, her Honour did not mention at least six of the plaintiff’s medical witnesses.

The probable solution is that her Honour made a typographical mistake, writing “only” when she meant to write something like “most important”. Certainly her apparent error does not adversely affect her reasoning.

In these circumstances, I think the appeal should be dismissed with costs.

STEIN JA: I agree with Meagher JA.