WISZNIOWSKI v W J KIMBER & SON PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, CLARKE JA and ROGERS AJA 26 July 1988 [1988] NSWCA 177 PRACTICE & PROCEDURE — appeal dismissed for want of prosecution — no question of principle Samuels JA The primary matter before us is an appeal by a plaintiff whose action for damages for personal injuries was heard by Sinclair DCJ on 27 April 1978. The nature of the case was that the plaintiff had been involved in a motor vehicle accident on 14 April 1976; liability was admitted and the trial was therefore limited only to the assessment of damages. The learned trial judge found, in short, that the plaintiff, the appellant as I will now call her, had sustained various soft tissue injuries and a mild concussion. She had, the learned judge thought, recovered from any organic consequences of the accident within twelve months after its occurrence, but at the date of trial, although she had suffered some emotional reaction to the accident, the learned judge took the view that he could not be satisfied that this emotional or psychological condition had been causally related to the accident for more than about eighteen months of its duration. Accordingly he found that she was fit to resume work about a year after the accident. Based on those findings he assessed the plaintiff's damages in the sum of a little over $6,000, including the sum of $2,500 for pain and suffering and the like. The appellant filed her appeal on 25 May 1978 complaining that the assessment of damages was inadequate. Thereafter gross delay supervened. We have had the benefit of a chronology prepared by the appellant and the simplest course to take is to annex it to this judgment. From that it will be seen that, in effect, the matter became moribund in about July 1978 when the matter was stood out of the Registrar's List when the date arrived for settling the index. Thereafter very little happened, I think it fair to say, in the appellant's camp and no steps were taken by the appellant of which notice was given or should have been given to the respondent. Ultimately on 11 August 1986, that is rather more than eight years after the judgment, the appellant's solicitors advised that they had "now been contacted by our client and she requests us to reactivate this appeal." The appeal was "reactivated" and various steps were taken, including the settlement of the draft index to the appeal book. But when that was first undertaken it appeared that the medical reports tendered by the defendant at the trial, together with a film taken by an investigator and tendered and shown at the trial, could not be found. Appropriate searches were made for them in repositories and amongst the respondent's, i.e. amongst the Government Insurance Office's extensive collection of documents, but without success. 2 UNREPORTED JUDGMENTS The appellant's solicitors appear to have cooperated fully but they had no copies and were unable to supply this deficiency. Notwithstanding that the index was settled without these extremely important documents the matter went into the list and was duly fixed for hearing today. When the matter was called Mr McIlwaine for the respondent sought, without objection, to file a notice of motion seeking to dismiss the appeal for want of prosecution. He filed evidence in support of the motion which I think I have substantially summarised. Mr O' Reilly for the appellant has also filed an affidavit which seeks to explain the delays which undoubtedly supervened in the appellant's camp. Further, I should add, he expressed to us some apprehension that the appellant, who is an elderly woman, might be unable, on account of some mental condition, to provide proper instructions, and he foreshadowed some application to enable him to pursue that question further. The medical evidence annexed to the affidavit which he has filed does not, as he very fairly concedes, present any evidence which supports the conclusion that the appellant is unable to instruct solicitors and counsel on her behalf. It does show, I think, or at least the material is capable of establishing, that she has suffered for many years from a psychiatric condition of some kind which might, in its early stages, have been aggravated by the accident, but which has long since adopted a genesis of its own. At all events it does not, in my view, suggest that we should approach the matter with caution on the footing that the appellant might need the appointment of a tutor or that questions of that kind are involved. That being so the matter comes back to the events which are disclosed in the chronology and in the affidavits which have been tendered. In my view the appellant has clearly been guilty of gross delay and the respondent has also been guilty of what one might call vigorous inaction. The respondent ought, I think, to have moved to strike out the appeal or to dismiss the appeal for want of prosecution at a much earlier date. However the evidence is capable of supporting the conclusion that it was not until the parties settled down to construct a draft index in late 1987 that the respondent discovered that it lacked the critical material. So although the respondent ought to have moved earlier the serious defect upon which the present application is based was not detected until nine years or so after the judgment had been given and after the appellant's delay had fully accrued. The practical situation is that, in the absence of the defendant's medical evidence, it is simply not possible to deal with the appeal. If it was apparent that, accepting all Sinclair DCJ's findings of fact, his assessment of damages, that is to say his evaluation of the facts, was inadequate, then it might be possible to deal with the matter on that basis. However that is not the situation because, in my view, the judge's findings of fact are quite consistent with his assessment of damages. In any event, even if it were possible to deal with the matter on the face of the judgment and if we were to conclude that the assessment was inadequate, there would be no way in which we could reassess. To send the matter back for a new trial after this delay would be unthinkable in my opinion and I could not contemplate exercising a discretion, in the circumstances of this case, in that fashion. Moreover, if the matter did go down for a new trial the defendant/respondent would then be labouring under an almost fatal handicap, namely the lack of any relevant medical evidence. URJ WISZNIOWSKI v W J KIMBER & SON PTY LIMITED (Rogers AJA) 3 The question then to my mind is who should bear the responsibility for the fact that the appeal has now become strictly untriable. I think that this must be the appellant. Even though, as I have said, the respondent should have moved sooner, it does appear that it did not appreciate the major defect until the draft index was being prepared. Even then I think an earlier application to strike out should have been made, as I understood Mr McIlwaine to concede. Nonetheless the delay is much less gross. In my opinion, therefore, the appellant's delay, for which no adequate explanation appears, has caused this situation and the loss, if one may term it that, must fall upon her shoulders. However, having regard to the lethargy displayed by the respondent I do not think that the appellant should suffer any costs. Accordingly I would propose that the appeal should be dismissed for want of prosecution, as the notice of motion seeks. There should be no order for the costs of the motion or of the appeal. Clarke JA I agree. Rogers AJA I agree. SAMUELS JA: The orders of the Court are therefore as I have stated. ORDERS Appeal dismissed for want of prosecution. No order for the costs of the motion or of the appeal. DATE EVENT APPEAL BOOK REFERENCE 7 March, 1926 Plaintiff's date of birth (Croatia) February 1956 Page 5 Arrives in Australia 1971/2 Employed by Grace Bros. Packing Department _ Page 6 (Approx.)April 1975 Employed by Wembley Clothing & Mfg as a Tea Page 5 Lady 10 or 14 April, 1976 Date of accident Page 6 14 April, 1976 Admitted to Liverpool Hospital Page 20 15 April, 1976 Transferred to Harrickville District Hospital Page 22 Attended by Dr. Peter Holman, Orthopaedic Page 23 Surgeon 22 May, 1976 Discharge Page 22 25 August, 1976 Seen by Dr. P. Holman Page 23-S 18 June, 1976 Seen by Dr. J. Bannister Page 28 24 June, 1976 Seen by Dr. W. Berns Page 31 30 september 1976 Seen by Dr. N. Dorsch (neurosurgeon) on referral Page 35 from Dr. P Holman 15 December, 1976 Seen by Dr. L. Hann Page 37 20 April, 1977 Seen by Dr. P. Holman Page 25 May 1977 Death of plaintiff's husband Page 39 3 November, 1977 Observation of the Plaintiff by Mr Croan Page 15-P to 18-H 7 November, 1977 Further observation by Mr Croan Page 18 -J to 19-H 15 March, 1978 Seen by Dr B. Selecki (neurosurgeon) Page 38 23 March, 1978 Seen by Dr. P. Holman Page 26 27 April, 1978 District Court Hearing OUTPUT: Wed Oct 17 10:17:56 2007 UNREPORTED JUDGMENTS 28 April, 1978 May 1978 25 May, 1978 5 | June 1978 July 1978 to July 12 July, 1978 10 October, 1979 October 1979 to March 1980 24 September, 1983 15 | October 1983 13 February 1984 22 February, 1985 31 July, 1985 6 August, 1985 16 July, 1986 25 | 1 August, 1986 2 October, 1986 14 November, 1986 11 March, 1987 30 |55 May, 1987 26 June, 1987 35 | 18 August, 1987 28 August, 1987 1 June, 1988 Judgment of His Honour Judge Sinclair Appellant instructs that notice of appeal be filed Notice filed Advice tendered to Appellant Instructions from Appellant as to fresh medical evidence Date fixed for settling Index Matter stood out pending further instructions as to application to rely on fresh evidence Report from Dr. K. Bosnic (General Practitioner) Correspondence with and consultations with Appellant as to fresh medical evidence Further report from Dr. K. Bosnic Instructions from Appellant as to identity of treating medical consultants Report from Dr. Borton (General Practitioner) Advice to Appellant as to medical reports received to that point of time Report from Dr. P. Holman Report from Dr. M. Jennings (Psychiatrist) Instructions not to press fresh evidence ground but to continue with appeal Letter to Registry requesting re-listing for settlement of draft Index Registry requires fresh draft Index Fresh Index filed. Date appointed for settlement of Index Respondent seeks adjournment (Exhibits not available) Matter adjourned on Respondents' application to 18 August 1987 Matter adjourned on Respondents' application to 28 August 1987 Appeal Papers settled. Date fixed for hearing of appeal July 26 1988 COUNSEL FOR THE APPELLANT: J K O'Reilly COUNSEL FOR THE RESPONDENT: R S McIlwaine SOLICITORS FOR THE APPELLANT: Boyd, House & Partners SOLICITORS FOR THE RESPONDENT: S E Lazar