Redden v Forde [1999] FCA 729 (21 May 1999)

Last Updated: 3 June 1999

FEDERAL COURT OF AUSTRALIA

Redden v Forde [1999] FCA 729

APPEAL - Application for leave to appeal - Notice of appeal not filed within requisite period - Consideration of merits of appeal - Quantum of damages allowed by Master in personal injuries case - Master's decision affirmed by Full Court of Australian Capital Territory Supreme Court - Assessments of general damages and future medical matters not shown to be erroneous - Whether Master erred in refusing to allow future osteopathic and massage expenses - Master allowed expenses incurred to date of trial but disallowed future expenses because the need for such treatment was not supported by specialist medical evidence - General practitioner evidence indicated support for continuation of osteopathy and massage treatment - Master held entitled to determine not to award damages for these items.

FRANCA REDDEN v JOHN CHARLES FORDE

A 48 of 1999

GALLOP, WILCOX, HIGGINS, WHITLAM and WEINBERG JJ

CANBERRA

21 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 48 of 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	FRANCA REDDEN Applicant
AND:	JOHN CHARLES FORDE Respondent

JUDGES:	GALLOP, WILCOX, HIGGINS, WHITLAM and WEINBERG JJ
DATE OF ORDER:	21 MAY 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant, Franca Redden, pay the costs of the respondent, John Charles Forde.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 48 of 1999

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	FRANCA REDDEN Applicant
AND:	JOHN CHARLES FORDE Respondent

JUDGES:	GALLOP, WILCOX, HIGGINS, WHITLAM and WEINBERG JJ
DATE:	21 MAY 1999
PLACE:	CANBERRA

EXTEMPORE REASONS FOR JUDGMENT

1 GALLOP J: Wilcox J will deliver the reasons of the Court.

2 WILCOX J: The applicant, Franca Redden, seeks leave to appeal against a decision of the Full Court of the Supreme Court of the Australian Capital Territory. The application for leave is necessary because the Notice of Appeal was filed a few days outside the stipulated 21 days. This, apparently, occurred because of a misunderstanding by Mrs Redden's solicitor. Ordinarily the Court would not be concerned about such a short delay, particularly where there is an acceptable explanation. However, it is appropriate, in considering whether leave should be granted, to consider whether this is a case in which the appeal may succeed. We have today heard full argument on that matter.

3 Three matters were raised by way of criticism of the decision of the Full Court not to intervene in relation to the award of damages made by the Master. First, it was said the Master assessed general damages at too low a figure when he allowed $60,000. The second matter related to an assessment made by the Master in respect of future medical expenses, which were allowed at $30,000. These matters were extensively debated before the Full Court and we see no reason for taking a different view than was taken by the Full Court. We think it unnecessary to go to the detail. Both were matters of evaluation. They were evaluated by the Master after hearing the parties, and with the benefit of hearing the evidence of the plaintiff and relevant medical witnesses.

4 In relation to the third matter, the argument today took a course different from that before the Master and the Full Court. This matter concerned the question whether there should be an allowance for future osteopathy and massage treatment. The Master allowed these expenses to the date of trial, but refused to allow them thereafter.

5 It appears the case was conducted, on behalf of the plaintiff before the Master, on the basis that there was no medical evidence supporting the allowance of future expenses, and that the claim rested on the evidence of the plaintiff. This was also the basis on which the matter was debated before the Full Court. However, today, Mr Wheelahan QC, on behalf of Mrs Redden, pointed to evidence, from the plaintiff's general practitioner, Dr Leerdam, indicating support for continuation of osteopathy and massage treatment. There is also evidence from two non-medical witnesses which suggests they thought the past treatment was helpful, in a palliative sense, and might usefully continue.

6 In assessing this issue it is relevant to note two things. First, the amount sought at the trial for these items exceeded $120,000. The Master was asked to assess these items on the basis of a continuation of the existing regime of osteopathy and massage for the remainder of Mrs Redden's life, estimated on normal life expectancy tables to exceed 30 years. Secondly, at a relatively early stage of the trial, the Master made clear to counsel for the plaintiff that, having regard to the size of the claims, he would require evidence from a relevant specialist practitioner to justify the grant of damages in respect of these items. No specialist evidence was forthcoming.

7 In these circumstances, it seems to us the Master was entitled to take the view that he ought not to award damages in respect of these items. It is true that he awarded damages in respect of these items to the date of trial. The argument is put that the Master was guilty of inconsistency. We did not agree. The trial was a useful cut off date, as Mr Maconachie QC suggests. The Master had indicated that he required cogent evidence about these items. It was not adduced. It was one thing to allow past expenses already incurred; it was another thing to allow substantial damages for the future. Contrary to a submission of Mr Wheelahan, we do not think the Master held that, as a matter of law, he could not award these damages, but rather that it would not be reasonable to award them.

8 We have reached the view that none of the arguments on the merits of the appeal is entitled to be accepted. The proper result of any appeal must be that it be dismissed. Under such circumstances, there is no utility in granting leave. The appropriate orders of the Court are that the application for leave be dismissed and the applicant pay the respondent's costs.

9 GALLOP J: The application for leave is dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop, Wilcox, Higgins, Whitlam and Weinberg.

Associate:

Dated: 21 May 1999

Counsel for the Applicant:	D A Wheelahan QC and J Pappas
Solicitor for the Applicant:	Pappas, J-Attorney
Counsel for the Respondent:	J E Maconachie QC and H J Marshall
Solicitor for the Respondent:	Barker Gosling
Date of Hearing:	21 May 1999
Date of Judgment:	21 May 1999