Fowkes v Parker

[1999] NSWCA 442

CITATION:	Fowkes v Parker [1999] NSWCA 442 revised - 14/12/99
FILE NUMBER(S):	CA 40948/98
HEARING DATE(S):	7 September 1999
JUDGMENT DATE:	3 December 1999
PARTIES :	Dr Geoffrey Fowkes v Maria Teresa Gabriella Parker
JUDGMENT OF:	Priestley JA at 1; Fitzgerald JA at 145; Davies AJA at 154

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5505/97
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Williams

COUNSEL:	Appellant - P. L. Brereton SC Respondent - D. Wheelahan QC; M. Williams
SOLICITORS:	Appellant - Blake Dawson Waldron Respondent - Abbott Pardy & Jenkins, Glen Innes
CATCHWORDS:	Medical negligence; Damages awarded by jury
CASES CITED:	Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 130 Browne v Dunn (1893) 6 R 67 (HL) Cameron v Baker (unreported, CA, 6/8/80) Channel 9 Pty Ltd v Antonidias (1998) 44 NSWLR 682 Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Griffith v Kerkemeyer 139 CLR 161 Grincelis v House (1998) 156 ALR 443 Humphries v The Queen (1987) 17 FCR 182 Jones v Dunkel (1959) 101 CLR 298 Montague L Meyer Pty Ltd (1976) 51 ALJR 77 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Saunders v McDonald (unreported, CA, 20/11/96) Whittaker v FCT (1998) 153 ALR 334
DECISION:	Allowed in part - new trial ordered limited to assessment of damages

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40948/98
DC 5505/97

PRIESTLEY JA
FITZGERALD JA
DAVIES AJA

Friday, 3 December 1999

FOWKES v PARKER

MEDICAL NEGLIGENCE - action tried by jury - witness refers to medical insurance - conflict between expert witnesses - trial judge’s refusal to permit expert to give evidence on an issue not dealt with in the expert’s written report - objection to particular questions asked in cross-examination of one expert witness directed to partiality - address by plaintiff’s counsel to jury said to be inflammatory.

DAMAGES AWARDED BY JURY - whether, taking into account the maximum amounts the jury could have awarded on the evidence for all damages other than general damages, the general damages must have been excessive.

The respondent (the plaintiff at the jury trial) suffered an inverted uterus when, seven minutes after the appellant medical practitioner (the defendant at the trial) had delivered the respondent’s first child, assisted the delivery of the placenta by holding the umbilical cord and exerting pulling pressure on it. The consequences of the inverted uterus were serious, and the respondent suffered permanent damage, including a set of symptoms classified as Sheehan’s syndrome. Her case at the trial was that the appellant had mismanaged the delivery of the placenta by exerting too much force on the umbilical cord when using it to assist the delivery of the placenta. The jury’s verdict for the respondent was in the sum of $960,500. It became common ground at the hearing of the appeal that the jury must have awarded general damages of the order of $560,000. The appellant appealed both as to liability and quantum.

As to…