DRAZIC v LIDCOMBE HOSPITAL [1992] NSWCA 60

DRAZIC v LIDCOMBE HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P CLARKE and HANDLEY JJA 23 April 1992, 29 May 1992

[1992] NSWCA 60

DAMAGES — jury verdict — female plaintiff aged 27 at trial recovers verdict of $100,000 — disc protrusion at L5-S1 level proved — spinal operation advised but declined for the time being by plaintiff — past economic loss and expenses total $51,247 — cost of operation and loss of time $12,462 — 10% chance of failure of the operation with consequent impact on future work capacity — whether misdirection to jury on proper approach to refusal of operation — whether verdict so inadequate that no jury could reasonably have awarded it — whether Court of Appeal authorised to reassess — held: (1) The evidence fell far short of establishing that the plaintiff had acted unreasonably in not having the operation before trial.

EVIDENCE — rejection of — letter to solicitors of defendant retained by insurer — tender of letter requests assurance of permanent employment — tender of letter rejected

Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 applied;

(2) By reference to the undisputed or indisputable amounts making up the verdict, the resulting imputed allowance for past and future general damages of $16,291 was appealably low;

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 and Progress and Properties Ltd v Craft (1976) 135 CLR 651 applied;

(3) The first trial having been conducted before a jury, it was not appropriate that the Court of Appeal should reassess and the matter which should be sent back for retrial.

Shehata v Montague Myer Pty Ltd (1976) 51 ALJR 77 (HC) applied.

Held: (per Handley and Clarke JJA; Kirby P

reserving his opinion): In the absence of proof of the authority of the insurer on behalf of the hospital to commit the hospital to future employment of the plaintiff, no error arose in the rejection of the evidence.