THE CANTERBURY HOSPITAL v CAPPELLETTO [1989] NSWCA 240

THE CANTERBURY HOSPITAL vy CAPPELLETTO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 6 November 1989

[1989] NSWCA 240

Mahoney J In or about June 1981 the plaintiff, who was aged sixty years at thetrial, was operated upon at the defendant's hospital by Dr Claxton, one of the defendants. It is alleged that she suffered injury for which the defendants are responsible in damages. On 30 May 1989 a jury returned a verdict for Dr Claxton and against the hospital, the verdict against the hospital being for $471,000. The hospital has appealed against that judgment, both on grounds raising an issue of liability and also on grounds going to the quantum of verdict.

It has been conceded by Mr Hislop, and quite properly, that the grounds of appeal are grounds of substance and are not, to use a term used in the course of argument, speculative.

Evidence has been placed before the court that the plaintiff is a person who has lost a good deal of her sight and who receives a blind pension. I put the matter generally in these terms. She lives with her family in the premises owned by her and her husband, and there are two other properties registered in their joint names. It is agreed that her ownership of these properties is as joint tenant with the husband.

The hospital asks for a stay of execution on the judgment pending the determination of the appeal. No evidence has been put on on behalf of the plaintiff, who opposes the application.

Mr Hislop has submitted to the court that if there is to be a stay it should be a condition of the stay that a payment be made on account of the verdict: reference is made in the correspondence between the solicitors to an amount in excess of $200,000.

The matter is discretionary. The principles on which the court is to act have not been in issue in the application.