Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 689

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 689 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 14 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

M R Hall (Plaintiff)

COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of plaintiff's schedule of doctor's accounts re medical treatment - special damages - T8332 DECISION : See paragraph 7

DLJT: 195 (Ex Tempore - Revised) [2000] NSWSC 689

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 14 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of plaintiff's schedule of doctor's accounts re medical treatment - special damages - T8332)

1 HIS HONOUR: The plaintiff has tendered a bundle of documents in a folder entitled "Plaintiff's Schedule of Doctors' Accounts re Medical Treatment". 2 It has been the plaintiff's case that he suffered psychiatric harm and is entitled to damages or a component of damages in some manner to reflect that damage. 3 On 18 August 1998, the defendant's solicitors wrote to the solicitors for the plaintiff drawing attention to the fact that no particulars of a claim for special damages or a claim for damages by way of loss or business or custom had been supplied as referred to in earlier correspondence. They expressly required the plaintiff to supply full particulars of any claim he was making as to damages for psychiatric harm caused by either matter complained of. 4 The material the subject of the present tender is classically material that evidences the expenses a person in the position of the plaintiff has incurred in relation to the treatment for the particular injury, in this case a psychiatric illness, said to have been consequent upon the tort committed by the defendant. That claim for those expenses cannot be characterised as otherwise than special damages. 5 A claim of that kind is quintessentially a matter to be proved in the plaintiff's case in chief on damages. The fact of the matter is, as has been candidly conceded by Mr Hall, that today was the first occasion on which notice of the claim in money terms - its quantification (the total sum of $18,598 with accompanying fee notes and statements of account and the like) was given to the defendant. 6 One might add that in ordinary personal injury litigation, provided notice has been given by way of particulars of amounts spent have been given, any continuing claim, of course, can later be "topped up" evidentially. But no case, in my view, has been made at this late stage of the proceedings for the plaintiff to be given leave to reopen (which is required) to establish a matter so fundamental as a claim of this nature which would have been expected in some form in chief and in respect of which the correspondence seems to indicate in a general way, apart from general loss of business and custom, a gainsaying by the plaintiff that any such claim would in fact be made. 7 The application to reopen is refused and the bundle will be returned to the plaintiff marked for identification 284. ***********