The plaintiff, by statement of claim filed on 9 December 2015, brings proceedings for damages arising out of the circumstances in which she was knocked off her bicycle by two unleashed terrier dogs while she was riding her bike in Sydney Park at St Peters in the State of New South Wales.
Before commencing a consideration of the circumstances of the accident, I shall first deal with the issue of the non‑appearance by the defendant before me today.
There is no issue that the defendant was served with the statement of claim and has failed to file a defence. As a result of the defendant's failure to participate in these proceedings by appearing or filing a defence, on 27 October 2016 Balla DCJ made the following orders:
1. Statement of Claim taken to have been served on the defendant on 20/1/16.
2. Order Default Judgment for the Plaintiff as against the Defendant.
3. List matter for Assessment Hearing in sittings commencing 5/12/16.
4. Plaintiff to notify the defendant of the listing of the matter by setting out in letter to her to be served personally on her business address as on previous occasions.
5. Defendant to pay the plaintiff's costs on the Notice of Motion.
Conformably with those orders, the solicitors for the plaintiff have served the defendant setting out the orders Balla DCJ made and strongly urging the defendant to obtain legal representation, not only in relation to Balla DCJ's orders, but also (in a second letter) in relation to the hearing today.
I am satisfied there has been full compliance with Balla DCJ's orders. The defendant has not only been served with the statement of claim and the information concerning the entry of default judgment by Balla DCJ, but also with correspondence advising of the listing of these proceedings both on 5 December 2016 and today (see exhibit E). The defendant should be taken to be fully aware that these proceedings are listed today before me for assessment. She has not been prepared to attend or, for that matter, to contact the Court to advise of any matters that she wishes placed before the Court.
The circumstances in which a hearing can proceed in the absence of the defendant are set out in r 29.7 Uniform Civil Procedure Rules 2005 (NSW). Those rules apply when a hearing is called on and any party is absent. In those circumstances the Court may proceed with the trial generally, so far as concerns any claim for relief in the proceedings, and the plaintiff may prove his or her claim so far as the burden of proof lies upon the plaintiff. If the plaintiff does so, the plaintiff is entitled to such relief as is claimed and any other relief consistent with that which is sought: see the notes in Ritchie's Uniform Civil Procedure NSW (LexisNexis) referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141.
As the antiquity of those judgments shows, this is a procedure of longstanding. A defendant who does not come to the Court to defend his or her case cannot look to the Court to run that case in their absence.
That does not mean, however, that I should not be alert to my obligations when the case is proceeding ex parte. As to the considerations owed by the party present in court and by the Court itself to that party I note the helpful discussion by Barrett J in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365. With those obligations in mind I have put some questions to the plaintiff about issues relevant to the assessment of damages and I have asked for certain documents to be tendered not only in relation to the absence of the defendant but also I have enquired about such matters as treatment regimes and ongoing disabilities. Ultimately, however, as Barrett J notes in Satz v ACN 069 808 957 Pty Ltd at [64], in an adversarial system, the responsibility for conduct of a case rests with the parties concerned. I note that there is no suggestion in this case that the defendant labours under any disability of any kind; in fact that she appears to be an employed person in a position of some responsibility, so this is not a case where the defendant is under any intellectual or physical disadvantage of the kind that would excite the Court's concern.
The next issue is to consider the claim brought by the plaintiff in terms of the assessment of damages.
The circumstances of the accident are as follows. At about 8am on 12 October 2014 the plaintiff, her husband, and her stepdaughter were bike riding at St Peters Park in Sydney. The plaintiff's stepdaughter was leading the trio of cyclists when suddenly two small terrier type dogs came towards the plaintiff and her family, barking and trying to chase them. The owner of those dogs (the defendant) was present in this park, which was a leash free park, but she simply stood to one side, making no attempt to restrain the dogs.
According to the plaintiff's evidence, her stepdaughter stopped her bike while the plaintiff cycled past her, but two dogs ran after the plaintiff. There was a brief conversation in which the plaintiff asked the defendant to keep her dogs under control, to which there was a response that this was a "leash free" park. The difficulty was that those dogs continued to follow her, barking at her and trying to nip at her, one on either side.
The plaintiff then lost control on the cycle because of the interference by the dogs in her cycling. As a result, she hit a small barrier fence and fell so heavily to the road that she cracked her helmet. She also injured her right shoulder and severely twisted her left knee.
As the plaintiff's husband and stepdaughter were with her, they were able to take photographs of the scene of the accident. I have observed the photographs, which are set out as annexures A, B, and C to the plaintiff's affidavit. They show her having fallen heavily to the ground where she was stunned and where the dogs continued to nip and bark at her while she was lying there.
The plaintiff was unable, because of the severe pain in her left knee and right shoulder, to get up. The defendant made no attempt to come towards the terrier dogs or restrain them and they were eventually restrained by the plaintiff's step-daughter.
The ambulance was called and the plaintiff was transported to Royal Prince Alfred Hospital where X‑rays were taken of her chest, right shoulder, scapula, and left knee. There was no bony injury, although the plaintiff had suffered an abrasion around her right shoulder.
These injuries treated at the hospital were as follows:
1. By reason of the severe nature of the fall the plaintiff was reviewed by a neurosurgeon, Dr Geoffrey Brennan. He considered that she should be treated conservatively with a Miami collar.
2. The pain and swelling in the plaintiff's left knee meant that it was restricted in movement, and she was given pain medication.
3. A CT scan of the plaintiff's brain and cervical spine was performed as she had suffered a haematoma of her right eyelid and had tenderness around the C6/7 spinous processes.
4. The plaintiff had suffered a deep gouging puncture wound as she fell from her bike into the stomach region.
I note that the X‑ray results are set out in Dr Hopcroft's report of 13 April 2016 (exhibit B).
After having the laceration of her lower abdomen sutured, the plaintiff was admitted to hospital for observation for two days.
Following discharge, the plaintiff had to wear the neck brace for about two months. She was unable to weight bear on leaving the hospital and needed a wheelchair to her vehicle. When she arrived home she had to use a walking stick, as there was a staircase in the house.
The plaintiff visited her general practitioner on 26 November 2014 who sent her for a CT scan which was performed on 26 November 2014. This demonstrated a fracture of the anterior arch of C1, in early healing. There were multilevel cervical spondylosis problems with foraminal compromise.
A further CT scan performed on 2 December 2014 noted a residual fracture line through the anterior arch of C1 without evidence of complete union and again noted the background of multilevel facet joint degenerative change between three of the vertebrae.
The plaintiff started a physiotherapy program in March 2015. She began to note problems with numbness and pain in her right pectoral area and her right upper arm as well as aggravation of restricted movement in her cervical spine.
As a result of the injuries the plaintiff suffered a marked loss of mobility in her neck, which included a clicking sensation and problems in moving her head in both directions, as well as up and down, which she demonstrated in the witness box. She began to suffer from frequent headaches, and had difficulty sleeping, being obliged to adopt a position on her back. She suffered dizziness and vertigo type symptoms for about eight months after the accident. Her ongoing problems are summarised by Dr Hopcroft in his report of 13 April 2016 as follows:
"This patient suffered serious injuries in the cycling accident of 12 October 2014 when she was caused to fall from her bicycle by two barking dogs which attacked her.
Although she has recovered from a serious fracture of the first cervical vertebra, she has been left with severe compromise in range of movement of her cervical spine since the injury.
She is also developing a significant right‑sided radiculopathy with paresthesia and numbness in the right pectoral region dermatomally indicative of an injury high on the right cervical side of her neck ‑ C3/C4 ‑ and some developing paresthesia of the lateral aspect of her right upper arm.
With ongoing problems with her left knee it could well be that she has an internal derangement problem of the knee and I believe it is mandatory for this patient to proceed to an MRI scan of her cervical spine before she heads overseas, particularly as her last X‑ray showed incomplete union of the C1 arch fracture, and with developing radiculopathy and the possibility of a disc protrusion, MRI scanning is preferable to a further CT scan.
I believe MRI scanning of her left knee would also be useful as it would help to clarify the diagnosis there, as this patient may be a candidate for arthroscopic meniscal trimming should the investigation prove that she has damaged one of her meniscal cartilages.
There is direct relationship between this patient's ongoing symptoms and the cycle accident of 12 October 2014.
This patient undertakes a lot of office duties and is having trouble with protracted forward flexion of her head and neck, with her head and neck occasionally block, showing a slow progression of post‑traumatic arthritis in her cervical spine as its probable caused.
That problem is best treated conservatively in view of the X‑ray findings, and conservative management could be addressed by the purchase of an over‑door cervical traction kit at a cost of approximately $90 so that she can undertake in her own time and on a daily basis if necessary intermittent cervical traction and mobilisation.
She has therefore been left compromised in her fitness for work.
I do not believe the patient will come to neurosurgical intervention, as she has multi‑level changes, but she is at risk of such progression of the C1/C2 facet articulations from this injury that increasingly protracted headache my compromise her future work capacity in a significant way.
There is a change that in her later life she may come to require C1/C2 facet fusion.
The patient is highly intelligent and motivated to maximum her recovery, but her prognosis must remain guarded for the results of the MRI scan may dictate intervention on her left knee by way of arthroscopy prior to her leaving for her volunteer work trip to Vanuatu."
I note that there is no claim made in relation to the future costs of fusion and I have no information as to the expense. Since this is only a possibility, I think it is appropriate for the plaintiff not to include it. In fact, the whole manner of presentation of the plaintiff's claim is one of sensible and moderate estimates for non‑economic loss, past and future wage loss, and past and future out‑of‑pockets.
The plaintiff has provided a schedule of damages for non-economic loss, past and future out of pockets and past and future economic loss.
The plaintiff's evidence in the witness box was that this accident had a significant impact on her capacity for work and life generally. She did not return to work and could not return to work by reason of wearing the collar for two months, which severely impacted on her ability to drive. She was on a work contract which was due to finish and she very honestly said that it was not her intention really to renew that contract but that she would have been looking for other work of a similar nature on a full time basis in the community management sphere, a sphere for which she has tertiary qualifications, as part of what is clearly a very busy and active long term working life.
The injuries had significant impact on her lifestyle and amenities. Prior to the accident the plaintiff was a very fit and active person, engaged in cycling, snow skiing, ocean swimming on a competitive level, hiking, and bushwalking. She told me from the witness box that in point of fact her biggest loss was that it impacted on her ability to read because it caused her pain in her neck, for example, she has difficulty reading in bed. Her ability to sit in front of a computer is also substantially compromised. She starts to feel severe pain after about an hour.
In terms of her lifestyle generally, I have already referred to the difficulties she has had in relation to sleeping and driving. She has suffered from headaches and vertigo. She achieves pain relief by a series of very sensible alternatives to strong pain medication. These include the weight pulling, which is exhibitive, which is a particularly sensible and inexpensive method of treatment which I understand Dr Hopcroft recommended and which I can only wish were more widely available to persons suffering from neck injuries of this sort. It certainly is a particularly sensible way of treating such an injury.
The plaintiff also has had recourse to massage and I have added into her claim a claim for osteopathic treatment, as she says this provides relief. Her occasional medication consists of taking ibuprofen or paracetamol, which is a sensible way of coping with pain, given the extreme dangers of taking any form of long term pain medication of the kind that is often seen taken by persons with this kind of injury. Medicines such as Endone and OxyContin are not only addictive but highly dangerous. Recent statistics have shown that, in the United States, where approximately 50,000 persons die per year from heroin-based products, accidental overdosing on heroin-based pain medication increased 14% in the last year alone.
This brings me to the question of the plaintiff's non-economic loss. Having regard to the plaintiff's age, I have had regard to the list of factors relevant to non‑economic loss as explained by McColl JA in Varga v Galea [2011] NSWCA 76, where her Honour noted the caution with which decisions such as Reece v Reece (1994) 19 MVR 103 should be treated as well as listing the other factors to consider. I consider counsel for the plaintiff's estimate of 25% of a most extreme case to be a very sensible and moderate estimate, and that is the amount I propose to award.
In relation to past out‑of‑pockets, I note that these include amounts paid by the plaintiff and paid by Medicare, and I propose to award these amounts. I similarly propose to award the sums of $1,800 for monthly massage, $1,000 for occasional medication, and $2,000 for osteopathic treatment in the future. In relation to past wage loss, the plaintiff brings a claim for six weeks between 12 October and 30 December 2014, that being the date of conclusion of her contract, a full $408 net per week, making a total of $2,448.
The plaintiff brings a claim for past economic loss in the form of a buffer in the sum of $10,000 which I consider, having regard to her working history as set out in her chronology, and her evidence in the witness box as well as in her affidavit (Exhibit A) to be a moderate and sensible sum.
In relation to future economic loss, I note that the plaintiff has carried out some voluntary work in Vanuatu in the community rehabilitation scheme and that she is likely to have some difficulty getting back into full time work. She said that she could not return to work of a kind she had before the accident because of the restrictions on her neck, which would make computer work difficult, sitting for long periods difficult, driving difficult, and generally require her to have frequent breaks.
Taking all of these factors into account, I consider that a buffer for future economic loss is appropriate. The past and future buffers do not, however, include an allowance for superannuation, and I propose according to allow for superannuation loss for both past and future earnings in the sum of $5,769, this being at the rate of 11% on $52,448.
Accordingly I propose to award the plaintiff damages of $105,564.80.
I also propose to make an order that the defendant pay the plaintiff's costs. Since the defendant is not present, I will grant liberty to apply in relation to costs, but any application by the defendant, who will be provided a copy of this judgment by the Court, must be made, if at all, in the sittings in Newcastle commencing on 13 March 2017 before me, as I will be the list judge in those sittings. The defendant must bring any such application by way of notice of motion. Such notice of motion must be filed no later than Friday 3 February 2017.
The orders will also include a provision for the Court to provide a copy of this judgment as well as for the plaintiff to provide a copy of the orders that will be made today.
[2]
Notations
1. The defendant called three times outside Court 4.1 at 10:30am - no appearance.
2. The defendant called three times outside Court 4.1 at 11:30am - no appearance.
[3]
Orders
1. Judgment for the plaintiff for the sum of $105,564.80.
2. Defendant pay plaintiff's costs.
3. Liberty to the defendant to apply in relation to costs by filing a notice of motion no later than Friday 3 February 2017, returnable in the 13 March 2017 sittings before Gibson DCJ in Newcastle.
4. These orders to be entered onto JusticeLink forthwith and the plaintiff is to notify the defendant of these orders by letter served on her business address (whether the defendant is present or not) conformably with the orders of Balla DCJ made by 17 October 2016, such letter to be served no later than Friday 23 December 2016.
5. A copy of Gibson DCJ's judgment will be provided to the parties, by way of service in the manner prescribed by Balla DCJ.
6. Exhibits retained for 28 days.
[4]
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Decision last updated: 19 December 2016