KARPATI v SPIRA [1995] NSWCA 230

KARPATI v SPIRA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 15 December 1995

[1995] NSWCA 230

Clarke JA. This is a notice of motion in which various relief is sought. The primary relief is that the court order the taking of the evidence of the claimant on commission.

This is a very unusual application, but the circumstances themselves are both unusual and unfortunate. The claimant, who is a man relatively advanced in years, claimed that he had suffered significant injuries following an operation and that there had been a failure on the part of the treating doctors to warn him of the risk that he might sustain those after-effects.

When the matter came on for trial he was in an extremely disadvantaged condition, being unable to communicate effectively either by speech or by writing. The procedure adopted at the trial, in what was a desperate attempt to lead the claimant's evidence, is described in the trial judge's judgment in which it is also said that an assessment of demeanour of the claimant could not be made because of his disabled condition.

The claimant has appealed from the decision which went against him and the appeal is substantially based upon an application to lead evidence before this court. In the notice of appeal the evidence is described as fresh evidence, but I have deliberately discarded the adjective because my impression is that the claimant is seeking to appeal to the wider discretion of this court. Whether or notthe evidence is truly fresh evidence is something I need not decide at the present moment.

In any event, that evidence is to be found in an affidavit sworn by the claimant who, the lay and medical evidence would suggest, has recovered his powers of speech in a significant manner, such that at least in the opinion of one lay witness a court may be able to assess his demeanour.