Brazel v Nicholls

[2003] NSWCA 387

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Negligence
2. › Causation
3. › Factual causation
4. › Intervening event
5. › Whether motor vehicle accident caused disc prolapse or whether subsequent hammer incident was the trigger
6. › Whether accident created vulnerability activated by subsequent incident
7. › Burden of proof on plaintiff to establish causal nexus
1. Negligence
2. › Causation
3. › Medical evidence
4. › Conflicting medical reports
5. › Whether trial judge entitled to reject medical opinions based on incomplete or inaccurate histories
6. › No cross-examination of medical experts
1. Appeal
2. › Civil appeal
3. › Findings of fact
4. › Standard of appellate review
5. › Whether findings reasonably open on the evidence
6. › Requirement to demonstrate primary judge was wrong
1. Damages
2. › Personal injury
3. › Non-economic loss
4. › Statutory threshold
5. › Whether injuries met threshold of 15% of most extreme case and 12-month significant impairment
6. › Motor Accident Act 1988 (NSW), s 79A(3), (4)

Quick Take

A trial judge may reject medical expert opinions where those opinions are based on incomplete, inaccurate or grossly exaggerated histories provided by the plaintiff, even where no cross-examination of the experts occurred. The onus of disproving a causative relation (the 'thin skull' rule) only arises once a positive finding has been made that the defendant's negligence was a contributing cause of the injury; where the plaintiff fails to establish causation in the first place, the defendant need not disentangle other possible causes.