Brown v Hungerford [1994] QCA 83

IN THE COURT OF APPEAL [1994] QCA 083 SUPREME COURT OF QUEENSLAND Appeal No. 204 of 1993 Before Fitzgerald P. Davies JA. Kiefel J. [Brown v. Hungerford] BETWEEN: ISABEL JUNE BROWN (Plaintiff) Respondent AND: RODNEY HUNGERFORD (Defendant) Appellant REASONS FOR JUDGMENT - THE COURT Judgment delivered 06/04/93 This is an appeal from a judgment delivered in the District Court at Brisbane on 8 September 1993. It is necessary to discuss only one of the points argued. The respondent was awarded $174,158.36 damages for personal injuries which she suffered in a motor vehicle accident which occurred on 9 May 1987. Liability was not in issue, and the trail judge was required only to make an assessment of damages. The appellant, the defendant in the action, has asked for the amount awarded to be reduced, and much of the appeal hearing was given over to questions related to that issue. However, the appellant has also complained that evidence which it sought to adduce was rejected by the trial judge and has asked that, in consequence, it be given a new trial. Medical records and reports were tendered and a number of doctors were called to give -- 1 of 4 -- 2 evidence. As part of its case, the appellant sought to call Dr. W.B. Maguire, an orthopaedic surgeon, and also, it seems, to tender two reports which Dr. Maguire, had given to one of the respondent's general practitioners, Dr. J. Cavanaugh. The appellant had obtained an order for third party discovery by Dr. Cavanaugh and Dr. Maguire's reports were included in the material which Dr. Cavanaugh produced to the appellant. The appellant did not produce these reports to the respondent at any time prior to trial or even during the trial, and the respondent's legal advisers had not seen them when an attempt was made on behalf of the appellant to put the reports into evidence. The trial judge refused to permit the appellant to proceed because he said that the appellant's "written statement of expert and economic evidence disclosing the names and addresses of all of the hospitals, doctors, and other experts who had given the defendant reports on the plaintiff's injury, loss (including economic loss) and treatment" pursuant to Rule 149A(4)(a) of the District Court Rules should have included reference to Dr. Maguire and his reports. This seems to us incorrect, since Dr. Maguire had not at any time given the appellant any report within the meaning of that provision. It follows that his Honour had no power to prevent the appellant from calling Dr. Maguire and tendering his reports, which the respondent did not submit were irrelevant in connection with her claim. Regrettably, therefore, there is no alternative but to order a re-trial. However, since the situation which has arisen was substantially contributed to by the appellant, he should not be awarded the costs of the appeal. The costs of the first trial should follow the event in the second trial. The appeal is allowed, the judgment under appeal set aside and a new trial ordered. Each party must bear his or her own costs of the appeal, and the costs of and incidental to the first trial, including any reserved costs, must follow the event in the new trial. -- 2 of 4 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 204 of 1993 Brisbane [Brown v. Hungerford] BETWEEN: ISABEL JUNE BROWN (Plaintiff) Respondent AND: RODNEY HUNGERFORD (Defendant) Appellant Fitzgerald P. Davies JA. Kiefel J. Judgment delivered 06/04/94 Judgment of the Court Appeal allowed. Judgment below set aside. New trial ordered. Each party to bear own costs of appeal. Costs of and incidental to the first trial, including any reserved costs, to follow the event in the new trial. CATCHWORDS: EVIDENCE - admissibility - personal injury - medical reports -- 3 of 4 -- 4 given to third party - appellant prevented from putting reports into evidence at trial pursuant to Rule 149A(a) District Court Rules - whether report had been "given" to appellant. Counsel: Mr. S. Jensen for the appellant Mr. R. King for the respondent Solicitors: McInnes Wilson & Jensen for the appellant Chris Pike and Associates for the respondent Hearing Date: 21/03/94 -- 4 of 4 --