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. Although the evidence from Professor Crandon was not objected to, one would expect a judge to exercise his discretion under this rule to produce an evenhanded situation between the parties. There could be reasons why a judge would not rule in this way but prima facie one would think that it was an erroneous exercise of discretion if the result was other than evenhanded. I am therefore troubled by the ground of appeal which attacks the Judge's refusal to allow Dr Hinde to give this evidence. However, at this stage of the year and on very incomplete material consisting largely of submissions from the bar table, I am not willing to either refuse the application by the defendant for a complete stay, or to grant it until the hearing of the appeal. The appropriate course is to order a temporary stay in relation to the whole judgment until early in the new term to give both parties an opportunity to put material before the Court directed to this ground of appeal. As at present advised I see no reason why the material need canvass the other issues which appear to go only to the question of quantum. 2 UNREPORTED JUDGMENTS I therefore, order a stay of execution on the judgment until 15 February or further order of this Court to enable both parties to file further material. Costs of the motion to be costs in the appeal.