Australia: Judge's observations of a claimant are a relevant consideration

Duong v Tran [2010] NSWCA 280
Last Updated: 7 November 2010
Article by Gerry Tzortzatos

Judge's observations of a claimant are a relevant consideration

Judgment date: 2 November 2010

Duong v Tran [2010] NSWCA 280

New South Wales Court of Appeal1

In Brief

  • A trial judge has a broad discretion in the weight they give to conflicting evidence.
  • A trial judge is entitled to make observations of a claimant throughout the course of a hearing but must give the claimant sufficient opportunity to address these observations.


The claimant was an infant who was injured in an accident where his mother was reversing out of the driveway of their home and ran over his body. The insurer admitted liability for the accident. The claimant alleged he suffered a traumatic brain injury and an injury to his shoulder. The trial judge did not accept the claimant suffered any traumatic brain injury or impairment which might be productive of financial loss and awarded damages for past out of pockets expenses only. The claimant appealed on a number of grounds, the most substantial of which were:

  • the judge's refusal to disqualify himself;
  • refusal of an adjournment application;
  • use of the judge's observations of the claimant;
  • failure to find that the claimant had brain damage.

Court of Appeal

During the course of the initial hearing the insurer sought to submit that, by virtue of s 61(2) of the Motor Accidents Compensation Act 1999 (MACA) the medical assessment certificate issued by the Medical Assessment Service (MAS) was binding and conclusive as to the causation of the claimant's injuries (a submission which was ultimately rejected). The claimant objected to this submission on the basis that the issue should have been pleaded prior to the hearing as it was such as to take the claimant by surprise. The trial judge dismissed this objection on the basis that the claimant's legal representatives were experienced enough that they should have been aware this issue may be raised and, if they were not aware, then this was probably an omission on their part. The claimant then sought that the trial judge disqualify himself on the basis that his decision revealed bias against the claimant's legal representatives. The trial judge dismissed this application, saying that it had no merits. The Court of Appeal agreed with the trial judge's decision to dismiss the application.

Prior to the trial a neurologist retained to examine the claimant by his solicitors had provided a report which recommended the claimant undergo neuropsychological testing in 3 or 4 years time. After evidence had been taken from that neurologist at the trial the claimant sought to adjourn the trial for 3 years to allow that testing to be undertaken. After considering all the medical opinions the trial judge dismissed the application for adjournment on the grounds that the relevance of the outcome of future testing was 'entirely speculative'. In the appeal the claimant submitted the trial judge erred in the weight he gave to other medical opinions in making his decision. The Court of Appeal considered the grounds on which the trial judge's discretionary decision could be reviewed2 and, in dismissing the ground of appeal, stated:

"The weight given to conflicting evidence in the exercise of a discretion is seldom [that kind of] error, and in this case in my opinion no error has been made out."

In his decision the trial judge referred to his observations of the claimant, who had not given evidence but was present through most of the trial. He noted the claimant was well behaved at all times, which was in conflict with the claimant's father's evidence. The insurer made submissions based on these observations but the claimant did not. In the appeal the claimant submitted that he was not given an opportunity to address those observations. The Court of Appeal considered the relevant case law 3 in which it is permissible for a trial judge to take into account their observations of a claimant if the claimant is given an opportunity to address the observations. In the present case the Court held the claimant was given sufficient opportunity to address the trial judge's observations and was critical of the claimant's failure to do so in submissions or to seek that evidence be re-opened with regard to those observations.

The claimant's final ground of appeal was that, for a number of reasons, the trial judge had fallen into error in finding there was no traumatic brain damage. After considering the trial judge's reasons and the evidence at the trial the Court of Appeal found there was no error and dismissed the ground of appeal.

The Court of Appeal dismissed the claimant's appeal. The Court of Appeal also dismissed the insurer's notice of contention seeking to overturn the trial judge's decision regarding the conclusiveness of the medical assessment certificate on the issue of causation as it was unnecessary to deal with it in light of the dismissal of the appeal.


This case is important in highlighting the authorities in relation to how a trial judge may use the observations they make of a claimant and what procedural fairness must be afforded to the parties when this is done. Insurers should be mindful to address this issue in any matter that proceeds to a contested hearing and allow claimants an opportunity to reply, in order to avoid creating an appealable point.

This case also provides a useful consideration of the grounds on which a trial judge may fall into error in the exercise of their discretion. Furthermore it highlights the difficulty that parties face when appealing against an exercise of discretion.

Unfortunately, the Court of Appeal has again declined to provide a definitive judgment in relation to the extent to which a medical assessment certificate is binding as to causation of an injury. The present state of case law appears to be that the medical assessment certificate is binding to the extent that causation is relevant in the determination of non-economic loss, but it does not extend to the issue of causation in all other heads of damage.

1. Giles JA, Sackville AJA and Harrison J

2. Per Heydon JA in Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [45]

3. Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; Kassem v Crossley [2000] NSWCA 276; (2000) MVR 179; Vukmirica v Betyounan [2008] NSWCA 16; and Lindsay v Health Care Complaints Commission [2010] NSWCA 194

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