Aitofi v The Council of the City of Sydney

The background facts

1. The facts set out below are based on two affidavits of the plaintiff's solicitor, Scott Hall-Johnston (which were before the Registrar), and an affidavit of Nida Warraich of 20 May 2020 (which was not before the Registrar). I granted leave to Mr Morgan, who appeared on behalf of the plaintiff, to read the affidavit of Ms Warraich in support of the plaintiff's application for review.

The plaintiff's statement

1. The plaintiff's statement dated 13 May 2019 (which was not before the Registrar) sets out the basic facts in support of her claim, which are as follows.
2. In 2009 she was injured in a motor vehicle accident as a result of which she suffered injury to her neck, back and shoulders. The pain continued for a number of years. By 2016 she still had intermittent pain in her neck and back but her shoulders had recovered.
3. In 2016 she obtained employment with Challenge Recruitment Pty Ltd, a labour hire company, which provided her services to the defendant. Her average gross weekly wage was about $1,175. She was employed as a labourer. The work was heavy and involved lifting and loading furniture and other debris off the street into trucks.
4. In early May 2016, she and another worker (who was a full-time member of the defendant's staff) sought to move a couch from the footpath onto the tray of a truck, which was above shoulder height. As they were trying to push the couch onto the tray the plaintiff's left arm slipped and the couch fell back and struck her. During May 2016 there were at least two further incidents in the course of which the plaintiff alleged she suffered injury while being supervised by members of the defendant's staff. She ceased work on 23 May 2016 and has not worked since. The plaintiff says that she continues to suffer pain in her neck, back and shoulders and does not consider herself fit for work.

Other evidence

1. On 16 October 2012 (after the motor vehicle accident but before the incidents the subject of these proceedings) an approved medical specialist issued a certificate under Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW) which assessed the plaintiff's whole person impairment as a consequence of the motor vehicle accident at 5% (based on an assessment of her cervical spine).
2. On 10 July 2017, Dr Renata Abraszko performed an anterior cervical discectomy and fusion at C5/6 and C6/7.
3. On 6 May 2019 Dr Panjratan, at the request of the defendant's workers compensation insurer, assessed the plaintiff's whole person impairment (which included her cervical spine and left and right upper extremities) at 26%. She was also assessed, at the request of her solicitors, by Dr Endrey-Walder who assessed her whole person impairment (which included her neck and both shoulders) at 44%. On 11 July 2019, Dr Beer, an Approved Medical Specialist appointed by the Workers Compensation Commission, certified that her whole person impairment (for her cervical spine and left and right upper extremities) was 33%.
4. In a recent report dated 30 January 2020, Dr Endrey-Walder recorded that the plaintiff had "severely restricted range of movement at the shoulder girdles". He concluded: "This lady remains grossly restricted in relation to her functional capacity as far as her domestic duties are concerned and I would consider it more than reasonable to suggest that she is in need of about 12-14 hours help a week in this regard currently and likely in the long term. She has remained totally unfit for any kind of remunerable work activity."

The proceedings in the District Court

1. The statement of claim and statement of particulars were filed in the District Court on 15 November 2018. At that time, Mr Hall-Johnston considered the District Court to be the appropriate jurisdiction for her claim. He filed an amended statement of particulars on 13 February 2019. A t that stage he expected to prove the plaintiff's claim for care by lay evidence.
2. On 31 October 2019 the defendant's solicitors served a report dated 29 October 2019 of Susan Smith, occupational therapist. When Mr Hall-Johnston read the report, he considered that the damages for care and the cost of equipment were likely to be more substantial than he had appreciated.
3. On 14 November 2019 the matter was listed for directions in the District Court. On that day, the matter was listed for hearing to commence on 11 May 2020 with an estimate of four days. This date has since been vacated because of the application for transfer.
4. On 14 November 2019, Mr Hall-Johnston retained Glen Dwyer, occupational therapist, to respond to Ms Smith's report. Mr Dwyer's report of 14 January 2020 was served. He opined that the costs of care and assistance which the plaintiff reasonably required and would require in the future amounted to $838,752, which comprises $95,650 for past gratuitous care and assistance; $716,262 for future care and assistance and other expenses of $26,839.
5. A further amended statement of particulars was filed and served on 17 January 2020.
6. The plaintiff's treating orthopaedic surgeon, Dr Dave, has advised her to have surgery to her shoulders. Mr Morgan informed me that the plaintiff intends to have that surgery, although it is not expected that it will be performed before the matter is heard.
7. As at 6 February 2020, the plaintiff had been paid a total amount of $257,439.94 by way of workers compensation payments.
8. The plaintiff's schedule of damages is as follows: Head of damage Amount claimed Non-economic loss (40-45% of most extreme case) $263,000-$296,000 Past economic loss (193 weeks x $937 per week) $181,000 Future economic loss ($937 for 14 years less 15% vicissitudes) $421,000 Superannuation $72,000 Fox v Wood (15% of payments) $15,000 Past out-of-pocket expenses $80,000 Future out-of-pocket expenses $98,500 Past care $68,500 Future care $388,000 Total $1,587,000-$1,620,000 (plus costs)

Consideration

1. Section 140 of the Act relevantly provides: "140 Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court … order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. … (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied - (a) in the case of a motor accident claim or a workplace injury damages claim - (i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and (ii) that the case involves complex legal issues or issues of general public importance, or (b) in any other case - (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court. …"
2. The term "workplace injury damages claim" is defined to mean a claim for an award of damages to which Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) applies. Section 151E of Workers Compensation Act provides as follows: "151E Application - modified common law damages (1) This Division [Division 3 of Part 5] applies to an award of damages in respect of - (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer."
3. Because the defendant was not the plaintiff's employer, the relevant provision is s 140(3)(b) of the Act and the relevant jurisdictional limit is $750,000: ss 4 and 44(1)(a) of the District Court Act 1973 (NSW).
4. The principles that apply to an application for review such as the present were summarised by the Court of Appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. This Court must exercise its own discretion in determining whether to intervene to disturb the Registrar's order. Where the decision is one which turns on practice and procedure, it will generally be necessary to show an error of law, a miscarriage of discretion or a material change in circumstances. However, where the Registrar's decision finally determines a party's rights, or has a decisive impact on those rights, further evidence may be led if it is in the interests of justice to allow this to occur. To that extent, the review may amount to a de novo hearing.
5. I regard the present application as falling into the second category. If the proceedings are not transferred, the plaintiff cannot recover more than $750,000, whatever the District Court's assessment of damages. Therefore there is a risk that the plaintiff will suffer a substantial financial consequence if the order for transfer is not made.
6. Mr Morgan submitted that the Registrar's approach was not in accordance with s 140 because she did not attach significance to the words "if successful" in s 140(3)(b)(i). I accept this submission. In effect, what the Registrar appears to have done was to go through the plaintiff's schedule of damages and form a view that the figures for certain heads of damage were inflated and unlikely to be awarded, having regard to certain factual matters, including the effect of the prior motor vehicle accident. This approach is evident from the following passage from the Registrar's reasons: "In the absence of any evidence to the contrary, that evidence [of Ms Smith] reveal[s] that only several months before commencing employment with Challenge Recruitment the plaintiff had not recovered from the injuries and disabilities suffered in the 2009 accident and was not symptom free. Any assessment of non-economic loss damages would therefore need to take into account the interplay between the injuries and disabilities suffered in the 2009 accident and the injuries and disabilities suffered as a result of the work system and would in my view be subject to a significant reduction."
7. The task to be undertaken by a Court under s 140 has been described as "a matter of impression" (see below). It does not require an assessment to be made of the strength of the plaintiff's case or any inconsistencies in the plaintiff's case, since these are pre-eminently matters for the trial judge. A Court is not simply to work out what the likely damages will be based on the evidence before it, since Parliament can be taken to have used the words "if successful" advisedly to qualify the nature of the task required by s 140(3)(b)(i).
8. In Johnstone v State of New South Wales [2006] NSWCA 105 Giles JA (Santow and McColl JJA agreeing) said, at [22] - [23]: "[22] … Plainly he was not to engage in an exercise of complete assessment, but was to arrive at a likelihood, and of necessity he had to do so to an extent as a matter of impression, albeit founded on the evidence before him. The judge did this and, in my opinion, he sufficiently explained why he did not accept the suggested assessment of $1.6 million. [23] It was submitted that the judge should have gone to each of the items in the assessment, and stated his own assessment in substitution for that proposed on behalf of the claimant, so that it was demonstrated quasi-mathematically that the threshold of $750,000 was not achieved. I do not think that is correct. The question for the judge was not an assessment of the individual components of a damages claim, but rather the broader question of whether it appeared likely to him that if the claimant were successful his damages would exceed $750,000 …"
9. The words "if successful" are not confined to liability but extend also to damages. Thus, it is not sufficient merely to assume that the plaintiff will be successful in establishing that the defendant is liable. Rather, it is also necessary to assume that the plaintiff will be successful in establishing the general basis on which the plaintiff's claim for damages is put. There was a basis in the evidence before the Registrar for the proposition that the plaintiff had re-entered the workforce in 2016 and had been able to engage in heavy physical work until she was injured in 2019 as a consequence of which she had become permanently incapacitated for work. If this scenario were accepted, the damages awarded would be likely to exceed $750,000.
10. The evidence adduced in support of the application must generally provide a basis for the damages, as it did in the present case. Obviously, this does not mean that the figures postulated by the plaintiff's solicitors in a schedule of damages are to be accepted without question for the purposes of this exercise. It is a matter of common experience that such figures might turn out to be unsubstantiated by the evidence. However, it is not appropriate that the court adopt too sceptical an approach to such figures where there is some evidence for the scenario on which they are based. As I said in Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395 at [7]: "… [I]t is necessary to envisage, for the purposes of s 140(3)(b)(i), that the plaintiff will be successful, not only on liability, but that his claim for substantial damages will also be successful and that there is material, which will, if accepted, warrant an award of damages that is likely to be in excess of the jurisdictional limit of the District Court …"
11. Further, Part 6 of the Act is relevant to the assessment required by s 140. To read the words "if successful" in s 140 too narrowly would hardly advance the "just, quick and cheap resolution of the real issues in the proceedings" in accordance with the overriding purpose in s 56. Had the application for transfer not been made, her solicitors could potentially, in that event, be found to be liable in negligence for not seeking the transfer. Mr Hall-Johnston has explained, in affidavits which have not been challenged, why he commenced the proceedings in the District Court and the reason for the application for transfer. There is no basis to question this evidence. If the order for transfer were not made and the plaintiff were awarded, say, $1.2 million, by way of damages, she could obtain a judgment of no more than $750,000, being the jurisdictional limit of the District Court and would be required to forego the excess of $450,000. This would amount to irremediable prejudice and is a matter to be taken into account under Part 6 of the Act.
12. In addition, the transfer to this Court is not without risk to the plaintiff. If she recovers less than $500,000 in damages, she may not obtain an order for her costs of the proceedings: UCPR, r 42.34.
13. These factors militate in favour of making the order for transfer since, on the version of facts advanced by the plaintiff in support of the application, the plaintiff is likely to obtain a judgment of more than $750,000. Whether or not she does so after a final hearing remains to be seen. However, I am persuaded that the Registrar arrived at her decision on the basis of an incorrect reading of s 140 of the Act and that, for the reasons given above, an order for transfer ought be made.

Orders

1. For the reasons set out above, I made the following orders at the conclusion of the hearing on 21 May 2020: 1. Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW), set aside the decision of Registrar Jones on 22 April 2020 and, in lieu thereof, order that these proceedings be transferred from the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). 2. Order that the costs of the proceedings, including the costs of the notice of motion filed by the plaintiff in support of the application for review, be costs in the cause. 3. Direct the parties to confer on appropriate directions which ought be made for the further conduct of the matter and communicate with my associate with a view to such directions being made in chambers.

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. Decision last updated: 21 May 2020