NSW v Burton

[2008] NSWCA 319

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Loss of a chance
3. › Personal injury
4. › Post-traumatic stress disorder
5. › Assessment of degree of likelihood of better outcome
6. › Where harm resulted from initial exposure to trauma and not ameliorated by appropriate care through defendant's negligence
7. › Identification of nature and extent of better outcome
1. Damages
2. › Loss of a chance
3. › Burden of proof
4. › Whether plaintiff must establish nature and extent of better outcome on balance of probabilities
5. › Assessment where aetiology of condition uncertain
1. Evidence
2. › Expert evidence
3. › Evaluation of conflicting expert opinions
4. › Medical evidence as to efficacy of early intervention for PTSD
5. › Utility of relying on medical studies
6. › Whether court may resolve dispute between experts by reference to range of opinions
1. Practice and Procedure
2. › Remittal
3. › Nature of court's jurisdiction on remittal
4. › Scope of order remitting for damages on loss of a chance basis
5. › Whether trial judge bound by assumptions underlying remitter order
6. › Whether Court of Appeal should assess damages itself or remit for third hearing
7. › Civil Procedure Act 2005 (NSW), s 56

Quick Take

In loss of a chance personal injury cases, the court must identify the specific nature and extent of the 'better outcome' before assessing the percentage chance of that outcome occurring; it is not sufficient to assess the chance of no injury at all where the remitter or evidence establishes that some injury would have occurred regardless. Where medical evidence is imprecise and experts are at odds, the court may assess the likelihood at a point within the range of competing expert opinions. The obligation under s 56 of the Civil Procedure Act 2005 (NSW) may favour appellate disposal rather than further remittal, particularly where the case has already been remitted.