MARINKO v MASRI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P 4 November 1998 [1998] NSWCA 138 Mason P In 1991 the opponent's wife presented for termination of a pregnancy. As a consequence of the conceded negligence of the claimants, who are a medical practitioner and a day clinic, she suffered catastrophic and permanent injury. The opponent's wife has recovered $3.7 million damages, these monies remaining under the control of the Protective Commissioner. The opponent commenced proceedings in his own right in 1993 claiming damages for the nervous shock he admittedly suffered in consequence of the discovery of this injury. He was at the surgery when the news was conveyed to him. The proceedings came on for hearing in May of this year, and were heard by Justice Rolfe. His Honour directed himself that he had to be careful to identify those elements of loss consequent upon the nervous shock, and to distinguish them from the other elements of the opponent's suffering as a parent and a grieving spouse. His Honour assessed the damages recoverable by the opponent for nervous shock in the sum of $455,170. The major component of the loss was a past wage loss, but there was a continuing loss of earning capacity in a smaller sum but reflective of the fact that, in consequence of the continuing diminishing nervous shock, the opponent was impeded in his working role. The principal issue fought at trial appears to have been the question of whether the damages recoverable by the opponent were in some way to be offset against the damages recoverable by his wife. It was argued that since the major portion of her damages was the Griffiths v Kerkemeyer component and since the Protective Commissioner had power to advance some of those damages recovered to the wife's caregivers including the opponent, that therefore the opponent had acted unreasonably in not seeking to have her funds advanced to him. It was also argued that in some way there was double dipping by the opponent independent of the argument that he had unreasonably failed to mitigate his loss. These arguments were considered and rejected by Justice Rolfe. He found as a fact that the opponent had not acted unreasonably because his prime motivation in not claiming from the Protective Commissioner was concern that the fund that had been provided for the life long care of his wife not be diminished in any way. And his Honour also found that the principles governing Griffiths v Kerkemeyer damages recently emphasised by the High Court in Kars v Kars (1996) 187 CLR 354 meant that the Griffiths v Kerkemeyer damages recoverable by the wife were recoverable in her own right based upon her own loss and were not damages in any way held by her or the Protective Commissioner on trust for particular caregivers. The claimants have filed an appeal and the matter has been fixed for hearing on 24 March 1999. The appeal challenges all but approximately $30,000 of the verdict. Were it not for the fact that the opponent was no longer living in the 2 UNREPORTED JUDGMENTS jurisdiction, I would have been disposed to make a different order than the one which I propose to make. My assessment of the appellants' prospects of success in the appeal is that they are not great. However, the appellants have a right of appeal and they raise issues of legal principle in aid of that right and it is well established that the Court has to balance their right of ultimate possible vindication against the right of the successful litigant to receive the fruits of the verdict which has been obtained. I am influenced by the fact that there is no evidence before the Court suggestive of particular and immediate need on the opponent's part for the judgment monies and also by the fact that the proceedings have been pending since 1993 and will ultimately be resolved at the appellate level (subject only to any question of special leave) early next year. The opponent is of course protected by the judgment interest running at better than current interest rates on the judgment presently standing in his favour. It is true that a successful appellant has a right of restitution with respect to any monies overpaid but I think it would be unrealistic to overlook the fact that the enjoyment of that right would be difficult having regard to the overseas residence of the opponent. I do think however that the opponent should not in any way be impeded in the prosecution of the appeal. I note that there is a cross appeal but Iam concerned primarily with his role as respondent in the appeal and his right to be properly represented in defending the judgment which stands in his favour and which I consider him to have good prospects of sustaining. Accordingly, I think that the proper way to mould the appropriate relief is to allow payment of the $30,000 which is conceded to be due in any event and to allow a further sum that would provide a rough figure that would ensure that the opponent's legal costs both at the trial and of appeal are met. It is true that events may turn out that some of those legal costs, possibly even all of them, may not be payable by the claimants in the event that the judgment sum were reduced significantly and the rules or possible application of Caulderbank offers came into play. But that is very speculative and I do not think the prospects of $90,000 of the judgment monies leaving the country and being ultimately irrecoverable are of such a level that they should stand in the way of that amount of the judgment being paid here and now. For these reasons I propose that conditional upon the claimants paying $90,000 to the respondent's solicitors within three working days I order that execution on the judgment be stayed until the disposal of the appeal or further order. I grant liberty to apply and order that the costs in this motion be costs in the appeal. I assume, Ms Bylhouwer, that the three days won't cause any problem? BYLHOUWER: No, your Honour. Provided I have an authority and direction, your Honour unless your judgment itself allows me to make a direct payable to the opponent's solicitors. MASON P: Yes, I think that is appropriate. I will add to that. Conditional upon the appellant receiving from the opponent's solicitors authority to pay them and upon the claimants paying the $90,000 et cetera. You don't see any difficulty with that, Mr Cummings? CUMMINGS: Your Honour, just if your Honour would note that in view of the fact that the opponent's overseas we'd just be doing it by facsimile if my friend's willing to accept that. BYLHOUWER: That's not a problem. MASON P: All right. What I'll do, I'll reframe the order. I'll recast it so that the requirement has the money be paid within three days of the authority being provided. So I will change the orders so that they read as follows. URJ MARINKO v MASRI (Mason P) 3 Conditional upon the claimants paying $90,000 to the opponent's solicitors within three working days of receipt of an authority from the opponent directing payment of those monies to his solicitors I order that execution on the judgment be stayed until the disposal of the appeal or further order. I grant liberty to apply. Costs of the motion to be costs in the appeal.