New South Wales Court of Appeal CITATION : Foakes v Parker [1999] NSWCA 20 revised - 17/02/99 FILE NUMBER(S) : CA 40948/98 HEARING DATE(S) : 15/02/99 JUDGMENT DATE : 15 February 1999 PARTIES : Geoffrey Foakes v Maria Theresa Gabriella Parker JUDGMENT OF : Fitzgerald AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 5505/97 LOWER COURT JUDICIAL OFFICER : Williams DCJ COUNSEL : R Weber (Claimant/Appellant) D Milne QC/D G Robinson (Opponent/Respondent) SOLICITORS : Blake Dawson Waldron (Claimant/Appellant) Abbott Pardy & Jenkins (Opponent/Respondent) CATCHWORDS : Application for stay of execution of judgment; trial judge ordered part payment only of judgment; insufficient reason for interference with trial judge's order but proviso added DECISION : Motion for stay granted as to part of judgment and refused as to balance subject to conditions. - 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40948/98 FITZGERALD AJA Monday, 15 February 1999 Geoffrey FOAKES v Maria Teresa Gabriella PARKER JUDGMENT 1 FITZGERALD AJA: This proceeding relates to a claim for medical negligence arising out of an incident at Inverell in 1977. The action was not commenced until 1992. It was heard in the District Court by a judge and a jury of four and a verdict was returned in favour of the plaintiff, the respondent to the present motion, in a sum a little under $1 million. During the course of the trial an issue arose concerning the probability, according to medical literature, that the medical condition which had led to the respondent's claim, that is of uterine inversion, was more likely to have been caused spontaneously or by misadventure during the birth. That was plainly extremely material to a principal issue in the action, namely, whether or not the appellant had caused the injury to the plaintiff and hence was liable to her for the damages awarded to her by the jury. 2 There is sufficient basis for concern about the amount awarded for the jury to stay the judgment at least in part. The respondent does not dispute that the condition on the stay which the trial judge granted, namely, payment in part only of the judgment, the sum of $350,000 should stay, but it submits that there should be no stay otherwise, that is, for the balance of the judgment. 3 Subject to what I am about to say, there seems to me to be insufficient reason to depart from the discretion which was exercised by the trial judge when he granted his stay on that condition. However, I would add a proviso. The appeal with respect to liability is at least reasonably arguable with respect to one issue, namely, whether in the course of the evidence given by the medical experts the trial judge acted in an appropriately evenhanded manner in determining what evidence could be given with respect to what was demonstrated by the medical literature. 4 In particular, an issue had been raised in the course of his evidence but not in an earlier report by Professor Crandon, an expert witness for the respondent, suggesting that the literature demonstrated a particular position, namely, that it was more likely that there had been negligence than that the uterine inversion was spontaneous. When one of the appellants's witnesses, Dr Hinde, attempted to rebut that evidence, he also not having dealt with the matter in his report, his Honour allowed an objection and prevented him from doing so. 5 It seems that there have been very significant costs incurred in relation to the matter and I have been informed by counsel for the respondent, without objection from the appellant, that the respondent's costs of the trial were something of the order of $250,000 including $70,000 for disbursements of which $35,000 was provided by the respondent and the balance by her solicitors. It is also anticipated that the costs of each party to the appeal might be of the order of $30,000. It is accepted that the respondent has no assets and that if she were to receive the judgment at this point or $350,000 of the judgment and disburse it, for example, by payment to the solicitors of their costs, in the event of the appeal succeeding there would be no prospect of her making a repayment to the appellant. 6 In these circumstances there seems to me to be a sufficient, and I emphasise that I am not in any sense expressing an opinion as to the likely outcome of the appeal, but there is a sufficient prospect of the appeal succeeding to make it appropriate to impose a proviso to the condition imposed by the trial judge; that is to say, I would add the requirement that the amount payable to the respondent be used by her only for payment of her legal costs and expenses and that insofar as it relates to other than disbursements or the costs of preparation and presentation of the appeal it be paid to her solicitors only in the event that her solicitors give a written undertaking to the court that in the event of the appeal succeeding that amount will be refunded. 7 Minutes of the orders which give effect to what I have stated can be brought in agreed by counsel. I think what is intended is clear enough. The costs of this motion should be costs in the appeal. The appeal should be expedited and I direct that the appeal record be limited to the material which is properly necessary to the presentation and the determination of the appeal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.