TAWYER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 304

TAWYER vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 28 June 1994, 28 June 1994

[1994] NSWCA 304

PRACTICE AND PROCEDURE — Court of Appeal — admission of fresh evidence — after trial plaintiff discovers that he was infected with hepatitis C — infection probably the result of blood transfusions in operations to treat injuries received in subject accident — whether infection ought reasonably to have been discovered before trial and adduced in evidence at trial — whether finality of litigation requires rejection of tendered fresh evidence- blood test for hepatitis C only available one year before judgment — no test for presence of virus suggested to him before trial

APPEAL — admission of fresh evidence — medical condition present before trial — discretion to admit evidence — principles applicable — personal injuries claim discovery after trial and judgment of presence of hepatitis C virus in plaintiff's blood — whether such evidence should be admitted in support of cross appeal by plaintiff — no symptoms suggest need for blood test prior to trial — blood test for such virus only developed one year before trial — no blood test conducted until after trial — defendant appeals to Court of Appeal but appeal dismissed

Held: (Clarke JA; Kirby P and Handley JA concurring):

(1) The evidence should be admitted;

(2) The effect of the evidence upon many heads of damage required a general retrial on damages and reassessment could not safely be performed by the Court of Appeal.

Held: Fresh evidence should be admitted - plaintiff not unreasonable in failing to discover condition.

Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA) applied.

Supreme Court Act 1970, s75A.

Kirby P I shall ask Clarke JA to deliver the first judgment.