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. Clarke JA When this matter came before the Court there was on foot an appeal by the defendant against a judgment in favour of the plaintiff on the ground that his Honour had erred in not making any discount from the judgment on account of contributory negligence. That appeal was withdrawn but there remained a cross appeal by the plaintiff (I shall continue to call him the plaintiff) in which he challenged the adequacy of the verdict. Initially he relied on three grounds but during the appeal he restricted his attack to the award of $130,000 for general damages and the allowance for the impairment of future earning capacity. In addition he sought, in accordance with the procedure laid down by the Rules, to adduce fresh evidence which was not before the trial Judge. Because of the manner in which this cross appeal should be disposed of, in my opinion, it is unnecessary to set out the detail of the facts. I will, accordingly, restrict myself to some basic material. The plaintiff was born on 12 December 1966 and was involved in the accident the subject of the proceedings on 8 July 1984. He was admitted to Wyong Hospital where he had two operations. The first was a debridement of a 2 UNREPORTED JUDGMENTS compound fracture of the right knee and debridement and suturing of a forehead laceration and the application of a traction to the right leg. Some three days later he had an open reduction and internal fixation of the head of the right femur, wiring of the right patella, internal fixation of the right femoral condyle. The injuries to his right hip and knee were very severe indeed and, in November 1985, he had a right hip replacement and manipulation of the right knee. There were complications from that surgery and, in October 1986, Dr Huckstep performed a total hip replacement and removed his right kneecap. He had a very lengthy period on crutches and was in hospital on a number of occasions for quite long periods. He has been left with a very much shortened right leg and significant disability in that leg. He has a very nasty and long scar and he faces the prospect of further hip replacement operations. Given that the disabilities were forced on him when he was still very young it is obvious that the award for general damages would necessarily have to be large. During argument my mind varied as to whether or not the amount of $130,000 was outside the range. Initially I tended to think that it was but, on more mature consideration, I am not now convinced that that view was right. In any event it is, for reasons which will shortly appear, unnecessary finally to conclude an opinion on that matter. On the issue of impairment of future earning capacity I have come to a clear view that the challenge should fail, but in so far as I would propose that the appeal be allowed and that a new trial be ordered and that in a new trial there will be many different considerations, it is unnecessary to amplify on the reasons why the plaintiff should fail on that particular challenge. I come, then, to the application for leave to adduce fresh evidence and the impact that that has on the appeal. The trial was held in December 1991, some seven years after the accident. During that time the plaintiff had suffered from a great variety of symptoms from his physical injuries but, apart from a feeling of lethargy which worried him, suffered from no conditions which might have made him feel that he had some other condition or disability. I have mentioned the fact that he had a number of operations. As a result he also had a number of blood transfusions. In Gosford District Hospital in July 1984 he had 10 units of blood. In the Prince of Wales Hospital in November 1985 he had five, and on the second occasion, two units of blood. In Prince of Wales Hospital in October 1986 he had six units of blood. At the time of the trial, and until August 1993, he had no reason to believe, except in so far as lethargy should have put him on notice, that he was suffering from any ill effects from the blood transfusions, but on 4 August 1993 he underwent a blood screening prefatory to having another operation and that screening revealed that he was suffering from hepatitis C, which is a very serious condition. He had married before the trial and his wife gave birth to their only child on 25 January 1993. Fortunately neither his wife nor his child have the virus. Hepatitis C was, until relatively recently, known as Non A - Non B hepatitis. It is an infection caused by a virus which preferentially infects the parenchymal cells of the liver. This virus was first identified in the late 1980s and a test became widely available to identify it in 1990. It is frequently asymptomatic and, as Dr Liddle, a consulting gastroenterologist, said, it is not surprising the plaintiff was unaware of his infection. According to Dr Benson, who gave evidence for the defendant on the cross appeal, by the time of trial it was well known in the medical profession that blood transfusions in the mid 1980s could have been URWYER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Clarké JA) contaminated with the virus now known as hepatitis C, and the doctor points out that a simple test became available in Australia in 1990. On the other hand the plaintiffs treating general practitioner, Dr Spinks, said that as at December 1990 he was unaware of any such thing as hepatitis C infection. He was aware of a virus known as Non A and Non B hepatitis, but he says it was certainly not commonly known amongst general practitioners that such a virus would be transmitted by a blood transfusion in a public hospital, and he summed up by saying it was not widely known within the medical profession that any person was likely to have contracted hepatitis C through blood transfusions as at 12 December 1991. What emerges clearly is that until 1990 there was no test for determining whether a person suffered from hepatitis C, and that there was a limited knowledge in the medical profession generally as to the likelihood of the person contracting that virus from blood transfusions in hospital, although there was a divergence of view as to the extent of the knowledge. I think it is accurate to say that it may have been well known in some sections of the medical profession, but not at all well known in others. Whatever the position so far as the medical profession is concerned there is no doubt at all that the plaintiff himself did not know that he had the condition until 1993, which is well after the trial. There is also no doubt in my mind that he could not, reasonably, have been expected to have known that he had that condition. It was, in a sense, the fortuitous event of a blood screening test for a future operation which brought about the revelation. Accordingly, it cannot be said that the plaintiff himself unreasonably failed to discover the condition and to lead evidence about it, and its possible connection with the treatment following his motor vehicle accident, at the trial. The power of the Court to receive fresh evidence appears in s75A subs7. That power is qualified by subs 8 in respect of matters occurring prior to the trial, and in this event the Court is required to determine whether there are special grounds before admitting the fresh evidence. subs9 provides that there is no need to find special grounds concerning matters occurring after the trial or hearing. There was short debate during the argument in the appeal as to whether the relevant matter occurred before, or after, the trial. One view was that the critical evidence related to the fact that the plaintiff had contracted hepatitis C and that undoubtedly occurred, on the evidence, prior to the trial. The other view was that the event, of which evidence was sought to be led, was the revelation that he suffered from that condition which occurred after the trial. Clearly, there is a stricter test applying to evidentiary material concerning events occurring prior to the trial and, in this case, that test is, in my opinion, satisfied. In those circumstances it is unnecessary to consider which of the two views which were agitated should be preferred. I will, accordingly, assume that s75A subs8 applies and that the test of special ground needs to be satisfied. What constitutes special grounds might vary according to the circumstances of particular cases, but the courts have, over many years, laid down some basic tests which need to be satisfied before it can be found that such grounds have been made out. These were discussed fairly recently by the Court in Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR at 235. In that case Mahoney JA, at 251, said: "And the decisions subsequently given, against the background of this and other statutory provisions and rules, established the general principle that the discretion to admit this class of evidence should be exercised only if the evidence could not have been obtained with reasonable 4 UNREPORTED JUDGMENTS diligence for use at the trial; if there was the appropriately high degree of probability that, produced at the trial, there would have been a different verdict; and if the evidence be appropriately credible." It was accepted by both parties that these were the appropriate tests which required satisfaction before the finding of special grounds could be made out. In my opinion there can be no question but that the evidence could not have been obtained with reasonable diligence for use at the trial. It seems to me that the only way, short of a medical treatment, that the plaintiff could have become aware of the condition if he had, as a matter of precaution for the trial, undergone a blood screening test. For my part I have never heard of such a procedure being undertaken as a precautionary measure prior to a trial. Nor does any of the evidence in this case suggest that such a step was a usual one. The evidence is quite silent on the issue. In my opinion it would be extraordinary for the plaintiff, particularly in the light of the evidence of the general practitioner to have suspected or foreseen there might be some adverse effects of blood transfusion and to have taken the additional step of having a blood screening test to make sure he did not have any adverse effects from the transfusions prior to the trial. I am convinced that the plaintiff has satisfied the first of the three tests. Likewise it is undoubted in my mind that there would have been a different verdict if this evidence now available to the Court had been before the trial Judge. Indeed the evidence transforms the case. I need not embark on a discussion of the effect it will have on the various components of the verdict, but it undoubtedly will have a significant effect on the general damages if, in the end, it is found that the evidence given at the present time should be accepted in the trial. It will also be likely to have a very considerable effect on future earning capacity. The second test, accordingly, is satisfied. As to the third, there can be no question about the credibility of the evidence. In fact it seems to be accepted, for purposes of the present proceedings, as correct. The three tests having been satisfied and despite the importance of the need for finality the interests of justice being greatly in favour of permitting the evidence to be given, and I would accede to the plaintiffs motion and admit the evidence. Once that evidence is admitted the consequence is that the assessment cannot stand. The allowance for general damages in the light of this additional evidence would appear, subject to one matter, to be quite inadequate. That one matter is the possibility of a cure, or at least an amelioration of the condition by the Interferon treatment now being undergone. Likewise the assessment of future operations, which have now apparently become risky ventures, and future deterioration. The plaintiffs counsel has pressed upon the Court that it should re assess damages. The defendant's counsel has said that that is an impossible task because it requires a deal of cross examination of the material already before the Court and re evaluation of the whole case. One other reason tends in favour of sending the case back for retrial and that is the present Interferon treatment being given to the plaintiff If it proves to be successful then the likely increase in damages above that already awarded would obviously be much less than if it is, as with 70% of persons treated, unsuccessful. There is merit, in my view, in allowing the retrial to take place after this area of uncertainty has been settled. In those circumstances I am disposed to allow the cross appeal, to set aside the judgment of Judge McGuire, and to remit the matter to the District Court for retrial on the issue of damages. URWYER v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB The question of costs of the appeal has not been adverted to but on the cross appeal I would order that the cross respondent pay the cross appellant's costs and be entitled to have a certificate under the Suitors' Fund Act. In so far as there has been no formal order made in respect of the appeal I would order that the appeal be dismissed. Kirby P. I agree. Handley JA I agree. Kirby P. The orders of the Court, accordingly, will be: (1) Appeal dismissed with costs; (2) Cross appeal allowed with costs; (3) Set aside the judgment of Judge McGuire of the District Court as to damages; (4) Order a re trial limited to the issue of damages; (5) Grant to the cross respondent if otherwise so entitled a certificate under the Suitors' Fund Act, 1951 in respect of the costs of the cross appeal. The intent of the Court in respect of O.3 is that Judge McGuire's orders and findings on the issue of liability, and order as to costs, are confirmed. 1. Appeal dismissed with costs; 2. Cross appeal allowed with costs; 3. Set aside the judgment of Judge McGuire of the District Court as to damages; 4. Order a retrial limited to the issue of damages; and 5. Grant to the cross respondent in respect of the costs of the cross appeal if otherwise so entitled a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant/Cross respondent: I McC Barker QC/GR Petty/D Hooke Instructed by: S Mills Counsel for the Respondent/Cross appellant: A Fennell Instructed by: Aubrey Brown Partners