Burk v Cth

[2008] VSCA 29

Victorian Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Mental injury
4. › Post-traumatic stress disorder
5. › Collision between naval vessels
6. › Expert evidence
7. › Competing expert opinions as to satisfaction of diagnostic criteria of DSM-IV
8. › Whether PTSD established as result of collision
1. Appeal
2. › Appeal on questions of fact
3. › Appellate review of factual findings
4. › Distinction between findings based on witness credibility and inferences from uncontroverted facts
5. › Whether trial judge failed to use or palpably misused advantage
6. › Whether findings contrary to compelling inferences
1. Practice and Procedure
2. › Judgment
3. › Reasons for judgment
4. › Scope and adequacy
5. › Obligation to deal with evidence and submissions
6. › Failure to explain preference for some expert opinions over others
7. › Failure to refer to competing expert opinions and other relevant evidence
1. Practice and Procedure
2. › Trial
3. › Mode of trial
4. › Discharge of jury
5. › Order that trial continue before judge alone
6. › Whether denial of natural justice

Quick Take

Where a trial judge chooses between competing expert opinions and one expert's reliability has been pointedly attacked in cross-examination, the judge must explain the choice and cannot rely on an Abalos inference that the preferred expert was implicitly found more credible. The conflict of expert evidence may be too important to be left unexplained. Where a trial judge has not passed upon a plaintiff's credibility, an appellate court cannot fill that gap on the basis of the transcript alone, and a new trial must be ordered.