New South Wales Court of Appeal CITATION : Bladwell v Saddler [1999] NSWCA 69 FILE NUMBER(S) : CA 40306/98 HEARING DATE(S) : 10 March 1999 JUDGMENT DATE : 10 March 1999 PARTIES : Reginald Robert BLADWELL v Lisa Margaret SADDLER JUDGMENT OF : Powell JA at 35; Beazley JA at 39; Stein JA at 1 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CL 12439/78 LOWER COURT JUDICIAL OFFICER : Donovan AJ COUNSEL : M Elkaim (Appellant) R S McIlwaine SC/M Eagle (Respondent) SOLICITORS : Bartier Perry (Appellant) Ian Dunn (Respondent) CATCHWORDS : Damages - motor vehicle accident - past domestic care - future domestic care - refusal to allow witness to be called on cost of future domestic care - discretion to allow evidence to be given ACTS CITED : n/a CASES CITED: n/a DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40306/98 POWELL JA BEAZLEY JA STEIN JA Wednesday, 10 March 1999 Reginald Robert BLADWELL v Lisa Margaret SADDLER JUDGMENT 1 STEIN JA: Two issues arise in this appeal, first, whether his Honour erred in assessing the rate for past domestic care for the respondent plaintiff, and second, whether his Honour erred in assessing the rate for future care for the plaintiff. 2 The second issue involves a sub-issue which needs to be addressed by the court initially. That is, his Honour refused to allow evidence of a Mrs Judith Grills to be given on the cost of future domestic care. 3 It is convenient to turn to this issue first, since it was the principal issue argued on the appeal. 4 To do so, it is necessary to examine what actually happened at the trial in relation to the issue of the rate for future care. 5 A report was tendered of a Ms Debbie McCowen, manager of New England Projects, about costings for home care. The relevant portion of her report, for the purposes of the issue under appeal, is to be found at p 108 of the blue appeal book. The rate per week of $1575 was mentioned along with hourly rates for week day, weekend and holiday services. 6 The report was tendered on behalf of the plaintiff, it appears without objection from the defendant. It also appears that the report was served late and not in accordance with the rules. However, that was not in issue when the report was tendered. It is understood that that was served on or about 10 March, a week or so before the trial commenced. 7 The hearing took place on 18 and 19 March 1998. When the trial commenced, and indeed at no point during the hearing on 18 or 19 March, was any concern expressed to the presiding judge about the lateness of the report of Ms McCowen or any problems that the defendant appellant was experiencing in seeking to respond to it. 8 The trial proceeded and Ms McCowen gave evidence. At pp 55-56 of the black appeal book there was some cross-examination of her, by counsel for the defendant, as to hourly rates and hourly rates less than she had indicated in her report. 9 At almost the close of the second day of the hearing, counsel for the plaintiff indicated to his Honour that his case was almost closed, but that the defendant's counsel had indicated that he wished to examine Professor Oakeshott, one of the plaintiff's witnesses. That was fairly informal notice and not given in the normal way prescribed by the rules. However, the plaintiff's counsel took no objection, except that it was impossible to obtain Professor Oakeshott's attendance there and then. Indeed, he was not available for a few days. This led to the trial being adjourned for a week to 27 March 1998. It was adjourned specifically so that Professor Oakeshott could attend and be cross-examined by the defendant's counsel. 10 Before the matter was adjourned certain things occurred which I need to make reference to. Counsel then appearing for the defendant said to his Honour, in the context of the discussion as to how long would be needed to finish the case, the following: It would seem to me that I may have one witness and Professor Oakeshott on the following Friday. We should finish on that day. 11 His Honour responded "I should think so. The matter seems now to have boiled down to a question of the level of care". [emphasis added] 12 Counsel for the defendant responded, "That has always been the issue." 13 Nothing more was said about who the witness was that might be called, nor what the content of the evidence that the possible witness might give. Certainly nothing was said at all about the rates for care. The matter was accordingly adjourned and at the resumed hearing on 27 March, after some evidence from Mr Dunne, the plaintiff's solicitor, and in accordance with a request to cross-examine from the defendant, Professor Oakeshott was called, examined and cross-examined. 14 I add that at this point of time nothing had been communicated to the plaintiff's counsel as to anyone else being called, who they were, or what they might be likely to say. The transcript records, at p 135 of the black book, the following: Compilation of precise evidence re question of care handed up, new schedule and written submissions also handed up. 15 We have been informed from the bar table that there were no written submissions, at least none from the defendant, but the schedule has some relevance because it is referred to in his Honour's judgment where his Honour goes through certain items including items 6 and 7 for past and future care, with which this appeal is concerned. 16 The transcript then notes a short adjournment, the plaintiff having closed her case. The adjournment was at morning tea time and the case resumed with a 'case for the defendant', according to the transcript at 12.17 pm. 17 It appears that during the morning tea adjournment plaintiff's counsel was, for the first time, informed of who the witness was and what she was going to give evidence about. It was simply, as I understand the situation, said to be on the issue of rates. Still no piece of paper, however small, was produced either to counsel for the plaintiff or to the court. When the court resumed, counsel for the plaintiff indicated that before Mrs Judith Mary Grills was to give her evidence that he understood it was to be of an expert nature. Counsel for the defendant agreed with this and indicated to his Honour that it was evidence as to the cost of nursing provision required for the plaintiff. 18 Objection was then taken and his Honour decided to let things run to see where it would go. Mrs Grills was sworn and gave evidence of her expertise. At 137 a lengthy question was put to her as to the plaintiff's situation, and she was then asked: Are you able to tell the court the cost of providing that type of services? 19 At that point objection was again taken and it was indicated to his Honour that notice, if you could call it notice, was only given during the morning tea adjournment of the proposal to call someone from Inverell and the name of that person. 20 Counsel for the defendant indicated to his Honour that 'the evidence had only become available sometime this week'. I might interpolate that one would have thought that common fairness required that some notice at least be given prior to morning tea on the day of the resumed hearing in circumstances where the proposed evidence had become available at some earlier point of time in the week. 21 His Honour then ruled and his ruling is contained at p 138 G-J. In short, his Honour indicated that he was not going to allow the evidence to be given, because it should have been given earlier. Whilst he was loathe to take that view, it was too late, and the adjournment the week before was really for the purposes of accommodating cross-examination of one particular expert witness, Professor Oakeshott, and to that understanding of his Honour, defendant's counsel agreed. 22 It is submitted by Mr Elkaim, counsel appearing on behalf of the appellant, that the discretion that his Honour had to allow the evidence of Mrs Grills miscarried. It miscarried, so the submission goes, for a number of reasons. I mention some of these, although I may not cover every matter that was put in written and oral submissions. 23 Firstly, it was put that while Ms McCowen's report was not objected to, it was late. Second, it was submitted that because this was a matter that required local evidence rather than Sydney based evidence, the evidence of Mrs Grills was not available until a late point of time. Next, that the rate when translated between what the schedule of the plaintiff was seeking, based on $1575 a week, as compared with what Mrs Grills would have been putting to the court, translates into a very large amount indeed. The figures given in the appellant's counsel's submissions indicate that if, for example, the rate had been calculated on the basis of $1,075 a week instead of $1575 a week, then that would make a difference of over $700,000 in the amount of a verdict. The large amounts involved for the defendant are also relied upon as a matter going to the exercise of his Honour's discretion to grant or refuse leave to adduce the evidence. 24 Also relevant, according to counsel for the appellant, is that this was not a complex medical report or evidence that may be difficult to deal with, but one merely as to a rate of care. It is suggested that there would be little or no prejudice to the plaintiff if the defendant was permitted to call the evidence. 25 I am firmly of the view that it has not been shown that his Honour's discretion miscarried in refusing to allow the evidence of Mrs Grills to be given. 26 There are a number of reasons for this. Foremost amongst them is that no objection was taken to the report of Ms McCowen, although late. It had been served a week before the trial commenced. The issue of rates in relation to future care, if it really was an issue, was well known to the defendant and at no point of time up to and including 19 March, when the matter was adjourned for the purposes of cross-examination by the defendant Professor Oakeshott was the issue of rates and the need to have evidence of it indicated to his Honour, so far as we are able to understand from an analysis of the transcript. 27 The highest that it ever got was an indication by counsel that there may be one further witness, but no indication as to what issue that witness might give evidence about or what the content of that evidence might be. No reference to rates was made. 28 Second, I do not accept that there would be no prejudice occasioned to the plaintiff if the evidence had been permitted to be given. If the issue of expert evidence as to the rates is to be given, it is normal for each side to have available an expert to assist in an understanding of such evidence and to assist in possible cross-examination. Ms McCowen had been excused and was not present at the resumed hearing on 27 March and it is no answer, it seems to me, to say that the matter could have been adjourned again so that Ms McCowen could have been brought back to the court to possibly give evidence in reply. I think that this would be a wholly unreasonable scenario, particularly since the matter had already been adjourned for a week at the instance, in part, of the defendant to cross-examine a medical witness. 29 I am of the view that the discretion that his Honour had under the rules to refuse to allow the evidence of Mrs Grills to be given did not miscarry. Accordingly, this leads to the conclusion that in relation to future care, the appeal must fail. 30 The final issue relates to past care. A schedule was handed up on behalf of the plaintiff which dealt with all of the various heads of damage, including past care which was item number 6. His Honour set this out at p 29 of his judgment in the red book. There were two components in past care, one was from 1977 until 1992, a period of 20 years at 28 hours per week, $15 per hour, and the second period was from 1993 to the date of the trial at the rate of 12 hours per day, $18 per hour. His Honour dealt with this item at pp 30-31 and it is clear that his Honour dealt with it on the basis of whether the hours claimed per week were reasonable or otherwise. His Honour came to the view that they were and accepted the claims. 31 The point made by the appellant's counsel is that there was simply no evidence before the court of the hourly rates claimed of $15 and $18 per hour respectively, and that his Honour simply adopted those rates from the schedule handed up by plaintiff's counsel. The problem for the appellant's submission, in my view, is that it is not clear that the defendant ever disputed the rates of past care claimed in the plaintiff's schedule. 32 Mr Elkaim has indicated to the court that his understanding is, from counsel who appeared at the trial, that he has no recollection of whether the issue was taken or not, but in any event, the point runs because it was a matter of evidence. I think that is an over-simplification. It seems to me highly unlikely, bearing in mind the way in which his Honour dealt with the issue of past care by analysing whether the hours claimed were reasonable or otherwise, that no issue was before him as to the rates of past care, in relation to it being suggested that there was no evidence on which he could conclude that the figures set out in the plaintiff's schedule could be adopted as reasonable and proper. Indeed, it seems that it was likely that the amounts were never disputed at the trial. There does not seem to be any indication of any agreement in relation to them, I will grant that. Certainly there was no evidence provided by the defendant of alternate rates for past care. 33 It seems to me that in all of those circumstances, it would be quite wrong to allow the issue to be run on the appeal. If it had been raised or if the appellant could show that almost certainly it had been an issue which his Honour had ignored, forgotten and that there was in fact no evidence of the amount, then that would be an entirely different matter. However, from the way the case was run it seems clear that this was not the case and Mr Elkaim was unable to really suggest otherwise. 34 In the circumstances the appeal on past care must also fail. Accordingly, I would propose that the appeal be dismissed with costs. 35 POWELL JA: I agree and I would add only one comment. It seems to me on a reading of the transcript that the hearing before Donovan AJ did proceed upon the basis that the rates adopted by Mr McIlwaine in the schedule which was tendered to his Honour were not in dispute. 36 In the course of the discussion which occurred between his Honour and counsel prior to the matter being adjourned on 19 March 1998 his Honour (black appeal book 116) raised with Mr McIlwaine certain aspects of the then schedule which Mr McIlwaine had earlier provided to his Honour. A little later, his Honour returned to the question of the schedule. In the course of the discussion which then took place, the following occurred (black appeal book 118): HIS HONOUR: … matter seems now to have boiled down to the level of care. HICKEY: That has always been the case. HIS HONOUR: I am pretty well seized of the two competing views but it is quite appropriate for you both to point out to me the particular bits that you want to rely on and Mr McIlwaine I raised with you the other issue so that you might adjust the final schedule to take those into account. MCILWAINE: Yes your Honour. HICKEY: It is a fine point at the end of the day. HIS HONOUR: Indeed the judgment will be quite short. In those circumstances a lot of the stuff I will just note." 37 These observations seem to me to indicate that the rates payable were, at that stage at least, not a matter of issue and that it was not until there was any attempt to tender Mrs Grills' evidence that any rate - and then only the rate for future care - was sought to be made the subject of any dispute. 38 As I have earlier indicated, I agree with the orders proposed by Stein JA. 39 BEAZLEY JA: I agree with the judgment of Stein JA and the order he proposes and additional comments of Powell JA. 40 POWELL JA: The orders of the court are, thus, that the appeal will be dismissed with costs. oOo 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. 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