Henderson v Campbell [2002] NSWSC 109

New South Wales Supreme Court

CITATION : Henderson v Campbell [2002] NSWSC 109 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20097/00 HEARING DATE(S) : 25 February 2002 JUDGMENT DATE : 25 February 2002

PARTIES : Jarrod Campbell Henderson by his tutor Shane Henderson Jody Rubenia Campbell JUDGMENT OF : Burchett AJ at 1

COUNSEL : Mr B Toomey QC with Mr McManus for the Plaintiff Mr M Neil QC with Mr Watson for the Defendant SOLICITORS : Stacks - The Law Firm, Solicitors for the Plaintiff Connery & Partners, Solicitors for the Defendant CATCHWORDS : Evidence - discretion to admit expert evidence of which late notice was given - no question of principle LEGISLATION CITED : Supreme Court Rules 1970, Pt 36 r 13A DECISION : See paragraph 5 of the judgment.

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Burchett AJ

Monday, 25 February 2002

20057/00 Jarred Campbell Henderson by his tutor Shane Henderson v Jody Reubenia Campbell

Judgment – On Evidence 1 His Honour: Mr Neil QC, for the defendant, asks me to permit the tender of the whole of a report of Professor Berry, and also a further medical report, which would be entirely new, from a Californian specialist dealing with the assessment, from a statistical point of view, of life expectancy in cases of severe brain damage. It is accepted that Professor Berry's report was only received by the plaintiff's solicitor last Thursday and that a further communication was only received by the plaintiff's solicitor, having been faxed to his office late on Friday, on Sunday. It is now Monday. 2 Mr Toomey QC, for the plaintiff, objects that Pt 36 r 13A would require me to exercise a discretion before the defendant could be permitted to rely on this evidence. I suggested, on the basis of a quick reading of Professor Berry's report, and Mr Toomey accepts, that so much of it as is contained in the paragraphs up to and including paragraph 4.2 is not of a nature that would involve any unfairness to the plaintiff if it were received. The objection is to the balance, in which a specific Californian article, apparently relying on Californian data, is adverted to, and to some extent discussed and relied upon. 3 It does seem to me that the reception of this material would necessarily require the plaintiff to seek expert review, consideration and advice which could not reasonably be expected to be obtained at this stage, after the hearing has commenced, even if full allowance is made for the period of notice prior to the hearing that was given, admittedly very short indeed as it was. I do not propose to take up time analysing all the things that an attempt to reply to that material would require the plaintiff's advisers to do; but it is obvious that, at the very beginning, they would need to consider whether there are explanations peculiar to the conditions under which treatment and care in the long term are available in California for such a severely disabled state, compared with the situation in New South Wales. 4 Essentially, it is because the combination of statistical and medical expertise that would be required, and which Professor Berry appears to claim to have, could not reasonably be expected to be sought out at this late stage, and an appropriate person secured, able to present information on the matter immediately and available for a conference and to give evidence almost immediately, that I feel it would be unjust to exercise my discretion in favour of the defendant. If someone must suffer in this situation, it should be the party who wishes to rely on this evidence and who should have given earlier notice. 5 Accordingly, I will admit the report of Professor Berry, but only to the extent that, as I have said, has been conceded. Otherwise I reject the application for leave to adduce the evidence. -o0o-