Sullivan v Gordon (No 2)

THE COURT: The Court delivered judgment in this matter on 22 September 1999.

Subsequent to delivering judgment, senior counsel for the respondent has written to the Court submitting that the Court appears to have overlooked the respondent’s submission that a new trial on damages should be ordered if it proposed to uphold the appellant’s submission that Burnicle v Cutelli [1982] 2 NSWLR 26 was no longer good law in New South Wales so that damages could be awarded on a Griffiths v Kerkemeyer (1977) 139 CLR 161 basis for the loss of capacity to care for, in this case, a child.

The submission was not overlooked, although no mention of it is made in the judgments of the Court. The basis upon which the submission for a new trial was made was that if Burnicle v Cutelli was held not to apply, the respondent would wish to further cross-examine the appellant and her mother in respect of care of the child and call further evidence in respect of the need for this care. The Court was reminded that the correctness of Burnicle v Cutelli was raised as an issue by the Court of Appeal and had not been raised at trial.

It is true that the Court was reconstituted to argue the correctness of Burnicle v Cutelli . The reason for that was simple. The appellant had argued at trial that she was entitled to have included in the Griffiths v Kerkemeyer component of her damages claim an amount which reflected her need to have her child cared for, her inability to do so being due to the injuries received in the subject accident. Such a component of a Griffiths v Kerkemeyer entitlement was expressly rejected by this Court in Burnicle v Cutelli . For the appellant to be successful on this aspect of the appeal, it had to be demonstrated that Burnicle v Cutelli was no longer good law in New South Wales. No one directed attention to that decision either at trial or in this Court. Notwithstanding that, the claim had been made and resisted at first instance. Evidence was called in respect of it. That was the time for the respondent to challenge the extent of care necessary for the child. It may be that the respondent restricted its case on this issue at trial because, as was the case on appeal, the primary challenge made to the claim for care of the appellant’s child was based on causation. We referred to the respondent’s challenge on this issue in para 60 of Beazley JA’s judgment. The second and third bases referred to in that para are the relevant ones for the purposes of the submission that there should be a new trial. It is implicit in the reasoning in paras 62 - 67 that the matter had been sufficiently and adequately agitated at first instance and that there was no warrant for the Court to order a new trial.