Foakes v Parker

[1999] NSWCA 20

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.

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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…