STAIRMAND v BAKER and ANOR [1992] NSWCA 237

STAIRMAND v BAKER and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 6 February 1992, 7 February 1992

[1992] NSWCA 237

DAMAGES APPEAL — appellant (plaintiff below) suffering from breast cancer — negligent failure by respondents (medical practitioners) to diagnose — at time of negligent failure appellant's condition already incurable — negligence admitted at trial — trial judge finds the negligence of the respondents shortened the appellant's life by eight years — general damages of $57,000 assessed as part of judgment sum of $150,285 — held trial judge had given insufficient weight to some matters particular to the appellant, including some adverse consequences to appellant wholly caused by respondents — $85,000 held to be appropriate figure — judgment set aside and instead of it, judgment entered for $181,813 (an interest figure having also been increased).

ORDERS

1. Appeal allowed.

2. Judgment below set aside and instead judgment to be entered as at 29 November 1991 for the appellant plaintiff, with costs against the second and fourth defendants (the respondents) in the sum of $181,813.

3. The respondents to bear the appellant's costs of the appeal.

4. The respondents to have a Suitors Fund Certificate.

Priestley JA This is an appeal against a judgment of Abadee J given on 29 November last.

The hearing of the case before him was expedited because of the condition of the plaintiff, Mrs Stairmand. Her death from cancer was not far off, and it was then expected that she would die within ten weeks of the hearing. She is still alive, but the court understands that her death is now very close. This is why the appeal, like the trial, has been heard as a matter of urgency.

In argument in this court, counsel both for the appellant Mrs Stairmand and for the respondents, Drs Baker and Wong have, rightly, said that the case is a tragic one. Nevertheless, the appeal has been on limited grounds which enable the facts of the case, for the purposes of the appeal, to be stated quite shortly.