FOAKES v PARKER [1998] NSWCA 82

FOAKES v PARKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 14 December 1998

[1998] NSWCA 82

Handley JA Mrs Parker was awarded judgment against Dr Foakes in the amount of $980,500 following a trial by jury in the District Court. The defendant has appealed. I need not go into details but obviously there is a serious question to be determined on the appeal relating to the quantum of the jury's verdict.

Mr Weber, who appears for the defendant, has sought an unconditional stay and relies upon a misdirection on the question of the causation of Sheeham's syndrome and the other consequences which supervened for the plaintiff following the mishap during the birth of her first child. However that misdirection, as Mr Weber acknowledged, is only relevant on the question of quantum and would not in itself provide any reason for not ordering an interim payment to the plaintiff pending the appeal.

However there is one question that, at least at this stage, and on incomplete material, appears to be substantial which relates to the question of liability.

Both parties called expert medical evidence and complied with DCR Pt28 r8 by serving copies of reports on the other side. One of the plaintiffs experts, Professor Crandon, was allowed, without objection, to give evidence relating to the statistical probability of this mishap having been caused by medical mismanagement.

In reply the defendant sought to adduce from one of its medical witnesses evidence in rebuttal of that given by Professor Crandon. The witness, Doctor Hinde, had, in his report, expressed views on the causation question in this case but had not said anything about whether the medical literature on the topic justified any conclusion that the inversion of the plaintiff's uterus was more probably than not due to medical mismanagement. This evidence was objected to and appears to have been rejected by the Judge in reliance on Pt28 r8.