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[2004] NSWCA 476
respondent. The notice of motion to adduce further evidence was dismissed; the summons for leave to appeal was dismissed; the claimants were ordered to pay the respondent’s costs.
The Court of Appeal did not reopen a negotiated personal-injury settlement just because the plaintiff died shortly after the consent judgment. The future-loss calculation used life-expectancy tables and a discount for the uncertainties of life. The claimants provided no evidence that they had misunderstood those assumptions or had not considered the possibility of early death. The Court treated finality and the nature of the appellate process as important and refused both leave to appeal and permission to add further evidence.
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Sara Taylor was almost 12 when a golf ball struck her in the head on 25 April 1987. She received medical treatment from Dr Janet Gilchrist and Dr Adrian Lowe at Wagga Wagga Base Hospital, operated by the Greater Murray Health Service. Taylor later alleged that the medical advice and treatment were negligent and that she had suffered significant neurological effects, including frequent severe epileptic seizures [1].
2 cited instruments linked from this judgment.
Taylor commenced proceedings in 1999 against her father and the three medical claimants. The claim against her father was later discontinued. The remaining proceedings were set down for a 10-day hearing. On 31 October 2002, before the hearing began, the medical claim was settled without admission of liability for $2.5 million plus costs [2]-[3].
The settlement was provisional pending confirmation from the provisional liquidator of the medical insurers for Dr Gilchrist and Dr Lowe. Confirmation was obtained, and Terms of Settlement were filed on 20 December 2002. They were not initially entered as court orders due to an oversight. That was later corrected, with the opponent's consent, so the orders took effect as of 20 December 2002 [3].
Taylor died on 21 January 2003 after an epileptic seizure, four weeks after the effective date of the consent judgment. Part of the settlement had already been paid, and the remaining $500,000 was held by the estate's solicitors pending the appeal proceedings [4].
The claimants argued that the judgment should be set aside and the case sent back for trial. Their grounds were that the settlement assumed Taylor would live for an appreciable period and benefit from the damages, that her death falsified that assumption, and that the agreed sum was therefore manifestly excessive [5]. The Court of Appeal dismissed their motion to adduce further evidence and their summons for leave to appeal, and ordered them to pay the respondent's costs [30].
The Court treated the application as one for leave to appeal, not as a fresh trial of the original medical-negligence claim. Because the judgment was made by consent, an appeal required leave under s 101(2)(c) of the Supreme Court Act 1970 (NSW) [6]. The Court heard the leave application alongside the proposed appeal, intending to decide the appeal at the same time if leave were granted [7].
The governing context included the ordinary once-and-for-all approach to personal-injury damages. The Court restated the principle that damages are generally awarded as a lump sum and are not later adjusted for subsequent developments [17]. That approach matters when a damages assessment includes future losses: the assessment necessarily involves estimates and contingencies, rather than a guarantee that future events will unfold according to an average.
The Court also considered the appellate power under s 75A of the Act. An appeal is by way of rehearing, and the Court may reassess damages on the basis of current facts. But the power must be understood as part of an appeal, not as a general licence to retry the case or routinely update the evidence [18]. The relevant discretionary considerations included the public interest in finality and the nature of the original proceeding [19].
The settlement materials were significant. The claimants' junior counsel had assessed the plaintiff's claim at between about $1.7 million and $3.2 million, while the plaintiff's particulars totalled about $6.5 million. The agreed $2.5 million was around the middle of the claimants' assessment. The settlement included significant amounts for future economic loss, care and assistance, and medical costs [10].
In assessing future losses and general damages, counsel had used the Australian Life Tables 1998-2000, which gave a life expectancy of 55.4 years for a female aged 27.5. The assessment also included a 20 per cent discount for vicissitudes, above the conventional 15 per cent. The memorandum explained that higher discount by reference to limited employment opportunities in the country and the possibility of time out of the workforce to have children [11]-[12].
The Court reasoned that life tables do not promise that an individual will live to the average age. They inherently allow for people who live longer and people who die earlier, including at a young age [23]. The vicissitudes discount also reflects contingencies of life. The Court characterised Taylor's early death as a contingency that had occurred, rather than, on the evidence, as proof that the assessment had been made on a mistaken basis [23]-[25].
The absence of evidence about the claimants' understanding was central. There was no evidence that they or their lawyers misunderstood the conceptual basis for life tables or the vicissitudes discount, believed Taylor would reach the average life expectancy, or were unaware that she might die early from causes unassociated with the accident. Nor did they contend that the epileptic event was unrelated to the accident or that death from such an event was unforeseeable [24]. The Court also noted that the claimants did not rely on a mistake affecting the contractual basis of the settlement [8], [25].
The Court considered that the negotiated nature of the settlement strengthened the case against granting leave. It was not a jury verdict arrived at after trial; the parties negotiated a compromise while liability remained in issue. On the evidence, the later death did not show that the agreed assessment had been founded on a relevant misunderstanding [23]-[25]. The application therefore failed, and the proposed affidavits would not have changed the result [26]-[28].
The judgment did not announce a new general rule that a death after judgment can never affect an appeal concerning damages. It applied principles drawn from earlier Court of Appeal authority, particularly Doherty v Liverpool District Council (1991) 22 NSWLR 284 [14]-[19], [26].
The starting point, as restated here, was that personal-injury damages are usually assessed once and for all. That principle limits the ordinary ability to revise a lump-sum award because a later event changes the factual picture [17]. The Court then explained that the statutory appeal by way of rehearing does not displace the appellate context. Section 75A permits the Court to consider current facts, but its operation must be read alongside finality and the distinction between an appeal and a retrial [18]-[19].
The judgment recounts Doherty as a case where a plaintiff died after trial and the defendant sought to rely on the death in relation to future damages. The Court set out the framework from that case: the nature of the original damages assessment, the nature of the appellate process, the statutory provisions on fresh evidence, and general discretionary considerations [15]-[20]. It applied that framework to Taylor's negotiated settlement [25]-[26].
The Court also referred to Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports 81-149, where death occurred after the appeal hearing but before judgment. The account of that authority indicates that Doherty was treated as relevant, though the facts differed [22]. The present Court did not set out a separate new test arising from Public Trustee.
The headnote describes McCann v Sheppard [1973] 1 WLR 540 as distinguished. In the reasons, the Court notes that it rejected Lord Denning's sentiment in McCann, adopting instead Lord Wilberforce's statement in Mulholland v Mitchell [1971] AC 666 that it would “affront commonsense” to ignore a death shortly after trial in comparable circumstances [21]. The practical point is not that the Court ignored the death. Rather, it considered the death against the way the settlement assessed future losses and the absence of evidence of mistake or misunderstanding [23]-[26].
The judgment's effect is therefore fact-sensitive. It confirms the relevance of an early death in appellate consideration, but holds that, in this case, the death did not justify leave to appeal the consent judgment. The text does not provide a universal rule for all negotiated settlements or all post-judgment deaths.
At [17], the Court says personal-injury damages are awarded “by way of a lump sum on a once and for all basis” and are generally not revised for later developments. In plain English, the award normally settles future losses as estimated at the time; it is not ordinarily recalculated each time later events differ from the estimate.
At [18], the Court says s 75A must be construed in the context of an appeal, “and not a re-trial”. This means a rehearing power does not make the appeal process equivalent to starting the whole case again with fresh evidence as a matter of course.
At [19], the Court identifies the public interest in finality as relevant to the discretion to admit evidence, alongside the nature of the litigation. This means that the significance of new information is considered together with the value of ending disputes and the character of the proceeding that produced the judgment.
At [23], the Court explains that life tables implicitly recognise that some people live longer and some shorter lives, and that some may die very young. In plain English, an average life expectancy is a statistical estimate, not a prediction that a particular person will reach that age.
At [24], the Court emphasises the lack of evidence that the claimants misunderstood the life tables or vicissitudes discount, or thought Taylor would reach the average life expectancy. The significance is evidentiary: the Court did not treat the subsequent death, by itself, as proof that the settlement was made on a mistaken premise.
At [25], the Court says the settlement was “the result of a fully negotiated settlement” and was arguably a stronger case for refusing leave. In plain English, the parties had compromised a disputed claim before trial, and the later occurrence of a contingency did not automatically undo that negotiated resolution.
The reasoning is relevant where a party seeks to reopen or alter a consent judgment after a plaintiff's death, particularly where the settlement included future losses and was based on life expectancy or other estimates. It is also pertinent where the party relies on an event occurring after judgment to argue that the damages were excessive.
The factual features that mattered here were the timing of the death, the use of life tables and a vicissitudes discount, and the lack of evidence that the settling party misunderstood those methods [23]-[25]. The negotiated nature of the settlement and the continued dispute about liability were also relevant [23], [25].
The judgment does not establish that a death can never support an appeal, nor does it determine what result would follow where there is evidence of a material mistake, a misunderstanding of the settlement assumptions, or some other distinct basis to challenge the agreement. The claimants did not rely on a mistake that vitiated the contractual settlement, and the Court expressly left open what position might have remained if the appeal had been allowed [8], [29].
The supplied judgment text contains no decisions issued after 21 December 2004 and gives no account of later treatment of this case. It is therefore not possible, from this source alone, to say whether later courts have followed, distinguished or limited Gilchrist.
The judgment itself relies on and discusses earlier authorities. It applies the framework associated with Doherty v Liverpool District Council and considers Public Trustee v Sutherland Shire Council [14]-[15], [22], [26]. It also discusses McCann v Sheppard and Mulholland v Mitchell in relation to whether an appellate court should take account of a death after trial [21]. Those are the authorities addressed in this judgment, rather than later treatment of Gilchrist.
The Court did not decide what would happen if evidence established that a party entered a settlement under a material mistake, or did not understand how life expectancy and vicissitudes were being used. It noted that the claimants did not rely on such a mistake and that there was no evidence of misunderstanding [8], [24]-[25].
The Court also did not decide the legal position of the underlying settlement on the hypothetical assumption that leave had been granted and the appeal allowed. It observed that this question might still have remained because the claimants had not relied on a mistake vitiating the settlement, but expressly found it unnecessary to determine [29].
The judgment does not specify a comprehensive threshold for when a post-judgment death will justify admitting fresh evidence or granting leave. It instead applies the appellate-context considerations, the once-and-for-all principle, the circumstances of the settlement, and the evidence in this case [17]-[19], [23]-[28]. Nor does the supplied text identify subsequent judicial treatment that could clarify how those principles have developed.
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CITATION : JANET M. GILCHRIST & ORS. v. THE ESTATE OF THE LATE SARA ALEXANDER TAYLOR [2004] NSWCA 476 HEARING DATE(S) : 13/12/2004; 14/12/2004 JUDGMENT DATE : 21 December 2004
JUDGMENT OF : Mason P; Beazley JA; Giles JA DECISION : 1. Dismiss the notice of motion to adduce further evidence.; 2 Summons for Leave to Appeal dismissed.; 3. The claimants are to pay the respondent's costs.
CATCHWORDS : JUDGMENT - Consent judgment - Death of plaintiff - Whether defendant entitled to a reduction in the amount of damages payable where plaintiff dies shortly after the date of consent judgment. - APPEAL - Supreme Court Act 1970 (NSW), s.75A - Construction - Appeal to the Court of Appeal is by way of re-hearing - Discretion to admit further evidence - Power conferred by s.75A is to be construed in the appellate context - Importance of public interest in finality of litigation. LEGISLATION CITED : Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Doherty v. Liverpool District Council (1991) 22 NSWLR 284 CASES CITED : McCann v. Sheppard [1973] 1 WLR 540 Mulholland v. Mitchell [1971] AC 666 Public Trustee; Saroukas (decd) v. Sutherland Shire Council (1992) Aust Torts Reports 81-149 PARTIES : Janet M. Gilchrist, Adrian Lowe and the Greater Murray Health Service (Claimants) The Estae of the lata Sara Alexander Taylor (Opponent) FILE NUMBER(S) : CA 40412/2003 COUNSEL : P. Brereton SC (Claimant) B. Walker SC/L. McCallum (Opponent) SOLICITORS : Blake Dawson Waldron (Claimant) Marshall Sheehan & Associates (Opponent)
LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC20391/1999 FILE NUMBER(S) : LOWER COURT Sperling J JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40412/03
MASON P BEAZLEY JA GILES JA
21 December 2004 JANET M. GILCHRIST & ORS. v. THE ESTATE OF THE LATE SARA ALEXANDER TAYLOR
The claimants treated the opponent after she was hit in the head by a golf ball just prior to her 12th birthday. The opponent brought proceedings claiming that the claimants had been negligent in relation to their advice and treatment of her injuries. The claim settled without admission of liability in the sum of $2.5 million plus costs. The opponent died 4 weeks after the date of the consent judgment. The claimants sought leave to appeal the judgment in favour of the opponent be set aside and that the matter be remitted to the Common Law Division to proceed to trial. HELD per curiam:
(i) Damages for personal injury are awarded by way of lump sum on a once and for all basis and, as a general rule, once fixed, are not revised to take subsequent developments into account: Doherty v Liverpool District Council (1991) 22 NSWLR 284 .
(ii) Pursuant to s.75A of the Supreme Court Act , an appeal to the Court of Appeal is by way of re-hearing thereby empowering the Court to reassess damages on the basis of current facts. However, the power conferred by s.75A is to be construed in the appellate context which includes the general public interest in the finality of litigation and the nature of the action: Doherty v Liverpool District Council (1991) 22 NSWLR 284 ; McCann v Sheppard [1973] 1 WLR 540 distinguished.
(iii) In the absence of evidence that, in the negotiation of the Terms of Settlement, the claimants did not understand the conceptual basis underlying the use of life tables or that they were ignorant of the possibility that the opponent may have an early death due to a variety of causes, leave must be refused. ORDERS 1. Dismiss the notice of motion to adduce further evidence.
MASON P BEAZLEY JA GILES JA
21 December 2004 JANET M. GILCHRIST & ORS. v. THE ESTATE OF THE LATE SARA ALEXANDER TAYLOR Judgment 1 THE COURT: On 25 April 1987, Sara Taylor (the plaintiff) who was then almost 12 years of age, sustained an injury when she was hit in the head by a golf ball struck by her brother. The children were, at the time of the accident, at home on the country property owned by their father. On the same day the first claimant (Dr. Gilchrist) was consulted in respect of the plaintiff's injury and between 27 and 29 April 1987, the second claimant (Dr. Lowe) was consulted and carried out operative treatment on her at the Wagga Wagga Base Hospital, operated by the third claimant (the Greater Murray Health Service). Following treatment, it was alleged that amongst other things, she was left with a significant neurological deficit and suffered from frequent severe epileptic seizures and spontaneous uncontrolled grande mal epileptic seizures. 2 In 1999, the plaintiff commenced proceedings against her father and against the claimants. She claimed her father had been negligent in relation to her brother's hitting of the golf ball and claimed she had received negligent advice and treatment from the claimants. 3 Subsequently the proceedings against her father were discontinued. The proceedings against the claimants were proceeded with and were set down for hearing for 10 days commencing on 4 November 2002. Prior to that, on 31 October 2002, the claim was settled, without admission of liability in the sum of $2.5 million plus costs. At that time, the settlement was provisional, subject to obtaining certain confirmations from the provisional liquidator of United Medical Protection, the medical insurers for the first and second claimants. That confirmation was forthcoming and on 20 December 2002, Terms of Settlement were filed in the Registry of the Supreme Court. The Terms of Settlement were not entered at that time as orders of the Court. This appears to have been an oversight and was not noticed until during the course of the hearing before this Court. The matter was rectified, with the consent of the Opponent, by order made under Pt 40 r.3. The Court ordered that the orders take effect as at 20 December 2002. 4 On 21 January 2003, the plaintiff died following an epileptic seizure. Subsequently, her mother, as executrix of her estate was substituted as plaintiff in the proceedings and is the opponent on the Summons for Leave to Appeal. Shortly prior to the date of death, portion of the settlement moneys ($2 million) were paid on behalf of Drs. Gilchrist and Lowe to Sara Taylor's solicitors. After her death, the balance of the settlement moneys ($500,000.00) agreed to be paid by the Greater Murray Health Service were paid and are held by the estate's solicitors pending the outcome of these proceedings. 5 On 3 February 2003, the claimants filed a Notice of Appeal seeking orders that the judgment in favour of the plaintiff be set aside and that the proceedings be remitted to the Common Law Division to proceed to trial. The grounds of appeal were that the orders embodied in the Terms of Settlement were made on the basis of a fundamental mistake that the plaintiff would live for an appreciable period following the judgment and would benefit from it (Ground 1). It was contended that that assumption had been falsified by her death (Ground 2) and that in the circumstances the damages were thereby, manifestly excessive (Ground 3). Those grounds of appeal formed the basis of the argument that was advanced in this Court. 6 Under s.101(2)(c) of the Supreme Court Act an appeal does not lie in respect of a judgment or order made by consent except by leave of the Court of Appeal. Accordingly, the appeal was incompetent. That matter was also rectified and the Claimants obtained an extension of time in which to file an Ordinary Summons for Leave to Appeal. Subject to that procedural error, the matter proceeded on the agreed basis that the relevant steps to invoke the Court's appellate jurisdiction were made within time. 7 The matter has now proceeded before this Court by way of a combined hearing of the Ordinary Summons for Leave to Appeal with the intent that if leave is granted the Court would determine the appeal at the same time without the need for additional argument.
Issues on the appeal 8 The claimants argued that the Court should set aside the consent order for the reasons embodied in the grounds of appeal. They did not rely upon any principle of mistake to attack the contractual basis underlying the consent orders.
Evidence sought to be adduced on the appeal 9 The claimants sought leave to adduce further evidence on the appeal, by way of affidavit evidence of Ms Bylhouser, the solicitor with the conduct of the matter on the part of the claimants, Mr M. McHugh, junior counsel for the claimants and Ms Tully, solicitor, who, we infer, had the day to day carriage of the matter for the claimants. Ms Bylhouser's evidence referred to the settlement of the matter and annexed the Terms of Settlement. She deposed to having been informed of the death of the plaintiff. Mr McHugh had prepared a detailed memorandum of quantum of damages for the purposes of the settlement negotiations which were annexed to his affidavit. Ms Tully's affidavit annexed the autopsy report and related documents. She also gave evidence to which I will refer shortly. The evidence was read, subject to the Court determining, as part of its consideration of the matter, whether it would allow the further evidence to be adduced. Notwithstanding our conclusion on the summons for leave to appeal, it is convenient at this point to refer in brief detail to the evidence of Mr McHugh and Ms Tully.
10 In his memorandum on quantum, Mr McHugh, junior counsel for the claimants, provided a detailed assessment of the various components of the plaintiff's damages claim. His memorandum reveals that the plaintiff had provided particulars of most aspects of her claim which totalled approximately $6.5 million. Junior counsel made an assessment on behalf of the claimants of those components which ranged between $1.7 million and $3.2 million. It is immediately apparent that the claim was settled in about the mid-range of the assessment made on behalf of the claimants. It is also apparent from the memorandum of quantum that the consent judgment included significant provision for future losses including future economic loss, future care and assistance and future medical costs. 11 In making his assessments in respect of future losses, as well as his assessment of general damages, Mr McHugh relied on the Australian Life Tables 1998 - 2000 which specified the life expectancy of a female aged 27.5 (the plaintiff's age at the date of the assessment) to be 55.4 years. These tables were more generous than the life expectancy upon which the plaintiff's claims had been calculated, which had been based upon a life expectancy of 47.5 years. Nothing however, for present purposes, turns on that. 12 Mr McHugh applied a discount of 20% for vicissitudes. This was slightly higher than the conventional discount of 15%. In his memorandum, he explained the use of the higher discount on the basis that the plaintiff lived in the country where employment opportunities were more limited and because she may have had a period out of the work force whilst having children. 13 Ms Tully, in her affidavit of 26 November 2004, annexed the autopsy report. She also referred to Mr McHugh's memorandum of quantum. She observed that in that memorandum no provision had been made for a discount for life expectancy. She then said: "The evidence therefore shows an intention to settle the claim on the basis of a full life expectancy, whereas the plaintiff died the day following receipt of the settlement moneys and if this had been known, no allowance would have been made for damages for future needs. If it had been known that the life expectancy would be 1 day following receipt of the settlement moneys, there would have been a very different settlement sum."
Principles to be applied 14 The issue before the Court is not one which commonly arises, although it is not novel. A similar issue arose for consideration in Doherty v. Liverpool District Council (1991) 22 NSWLR 284. In that case, there had been a jury trial in which the plaintiff had been awarded substantial damages, including for future losses. The Court accepted that in the jury's assessment of damages it would properly have assumed a substantial life expectancy. The Court also knew that, in the charge to the jury, the trial judge had directed the jury to take into account certain contingencies, including that the plaintiff might not live until retirement age. The plaintiff lodged an appeal challenging the award of damages. Approximately 3 months after the filing of the appeal (and about 4 months after the jury verdict), the plaintiff died. The defendant became aware of the plaintiff's death a few days prior to the commencement of the hearing of the appeal. It thereupon sought leave to file a Notice of Cross-Appeal in which it argued that in the circumstances, the damages awarded to the plaintiff were excessive as they must have been based, in a large part, upon an estimate of his future life expectancy which, as events had happened, was erroneous. 15 Gleeson CJ, Meagher and Handley JJA agreeing, stated, at 292: "The principles to be applied to the resolution of this problem are to be derived from three sources. First, a consideration of the nature of the process that was involved in the assessment of the plaintiff's damages at the trial; secondly, a consideration of the nature of the process that is involved in the determination of an appeal from the result at first instance; thirdly, an examination and application of the relevant statutory provisions relating to the admissibility of fresh evidence upon an appeal. In addition, there are general discretionary considerations to be borne in mind." 16 Gleeson CJ then proceeded to consider each of those aspects. For present purposes, it is sufficient to refer in brief terms to those principles. 17 First, his Honour pointed out that damages for personal injury are awarded by way of a lump sum on a once and for all basis, and, as a general rule, once fixed, are not revised to take subsequent developments into account that might otherwise cause the damages to be increased or decreased. 18 Secondly, an appeal to the Court of Appeal is by way of re-hearing pursuant to s.75A. Under that section, the Court itself has power to reassess damages and if it does so, it would proceed on the basis of current facts. However, as Gleeson CJ pointed out, the power conferred on the Court by s.75A is to be construed in the context that the Court is hearing an appeal and not a re-trial. His Honour noted, at p.294, that if s.75A was construed out of context, it would be given a more extreme operation than was properly the case. He observed: "No one has ever contended that routine quantum appeals should all begin with the tender of evidence bringing up to date the state of information as to the plaintiff's medical condition." 19 His Honour continued at p.295, that for the same reason, the principles according to which the appellate court exercised its discretion to admit or reject evidence are based upon the appellant context in which the discretion operates. That includes the general public interest in the finality of litigation. His Honour also considered that the nature of the litigation the subject of the appeal might also be a relevant discretionary factor to take into account. 20 Gleeson J concluded, in a passage which, because it is directly relevant to the outcome of this matter, I will quote in full: "In the present case, the principle in favour of the finality of litigation is relevant, but not as weighty as it might be in other circumstances. … What appears to me to be of more importance is the nature of the action, involving as it did the awarding once and for all of a lump sum based upon the facts known at the trial, coupled with the circumstance that the relevant event which occurred following the trial was the realisation of a specific contingency (the untimely death of the plaintiff who was already in middle age) which the jury were specifically instructed to allow for and in respect of which they were told to make a discount from their assessment of damages. It is true that this a case where the plaintiff's death occurred a relevantly short time after trial, although outside the time for appeal and cross-appeal, and also that the amount involved in this question is relevantly significant. These are proper matters to be taken into account, but they do not outweigh the factors mentioned." (emphasis added) 21 His Honour rejected the sentiment expressed by Lord Denning in McCann v. Sheppard [1973] 1 WLR 540, adopting what Lord Wilberforce had said in Mulholland v. Mitchell [1971] AC 666 at 680, that it "would affront commonsense" if, in a case involving similar circumstances, the Court shut its eyes to the fact of death shortly after trial. 22 A like problem arose in Public Trustee v. Sutherland Shire Council (1992) Aust Torts Reports 81-149. In that case the Court had heard an appeal brought by a plaintiff against an award of damages. The Council had cross-appealed on liability. After the appeal and cross-appeal had been heard, and before judgment had been delivered, the plaintiff died. The defendant made application for fresh evidence to prove the death of the deceased with a view to having the damages, that would otherwise be payable, reduced. Gleeson CJ, Priestley and Handley JJA agreeing, referred to Doherty and said that had the issue of damages arisen, his Honour would have regarded Doherty as different, although not distinguishable from the case with which he was then dealing and would have considered that the outcome would have been the same as in Doherty. 23 In this case, there were two matters material to settlement that are relevant to the Court's determination, including on the question of leave. First, liability was always in issue. Secondly, the settlement sum, to the extent that it involved the calculation of future losses, contained two premises. The first was that the plaintiff would have a particular life expectancy based upon the life tables. Implicit in the calculation of the life expectancy in those tables is that some people live longer and some live shorter periods of time. Some may live for very short periods. The second was the discount for vicissitudes. One vicissitude or contingency of life is that a person may not survive to an old age but might die young. Here the contingency was fulfilled. 24 Significantly, there was no evidence that the claimants or their legal advisers did not understand the conceptual basis underlying the use of life tables or the nature of the discount for vicissitudes. Nor was there any evidence that the claimants or their solicitors believed that the plaintiff would live to the average age of a female aged 27.5 years or that they were ignorant of a possibility that she would have an early death due to a variety of causes unassociated with the accident. Further, the claimants or their solicitors did not contend that the epileptic event that caused the plaintiff's death was unrelated to the accident or that death from such an event was unforeseeable. 25 The absence of such evidence, is, in our opinion, important to the exercise of the Court's discretion in determining whether to grant leave. There was no evidence that the claimants made a mistake in relation to the assessment of damages or the matters they took into account for the purpose of arriving at a sum at which they were prepared to settle the claim. Indeed, the claimants eschewed any reliance on mistake. The gravamen of their application for leave to appeal, therefore, is that one of the contingencies upon which the settlement was based occurred before the expiry of the appeal period. Accordingly, although there are some differences between the facts of this case and the facts of Doherty, those differences do not affect the principles to be applied, nor in this case, would those differences give rise to a different result. Indeed, this case, which was the result of a fully negotiated settlement, is arguably a stronger case for the exercise of the discretion against the grant of leave.
26 In our opinion, given the authority of Doherty in this Court and the absence of any evidence of the type to which I have referred, leave to appeal should be refused. In reaching this conclusion two further comments should be made. First, we have not overlooked the detailed argument and reference to authority made by senior counsel for the claimants. However, much of the authority upon which he relied is discussed in Doherty and it is not necessary, for the purposes of considering the application for leave to appeal, to extensively analyse those cases afresh. 27 Secondly, we have referred to the affidavit evidence relied upon by the claimants. That evidence, although read, was not, at the time, formally admitted into evidence. The material in the affidavits consisted of matters that the Court could deduce or assume for the purposes of the preliminary question whether leave to appeal should be granted. For example, the plaintiff's mother, as executrix of the plaintiff's estate, had been substituted for the plaintiff. The Court also knew, from the Terms of Settlement, which became the Orders from which the claimants were seeking leave to appeal, both the settlement amount and the fact that liability was in issue. It was also appropriate for the Court to infer, in accordance with principle, that any assessment of damages would have taken into account a life expectancy based on life tables and a discount for vicissitudes. 28 Accordingly, even had leave been granted and the affidavit evidence admitted, given the absence of the evidence to which we have referred, the evidence would not have affected the outcome of the appeal. However, as we propose that leave be refused, then leave to read the affidavits should also be refused. 29 We make one final comment. Given that the claimants did not rely upon a mistake vitiating the underlying settlement, if the appeal were allowed, the question may still have remained as to the position of that settlement. However, it is unnecessary to enter upon this.
30 Having regard to the foregoing, we would propose the following orders:
Last Modified: 12/21/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
(1991) 22 NSWLR 284
The notice of motion to adduce further evidence was dismissed; the summons for leave to appeal was dismissed; the claimants were ordered to pay the respondent’s costs.