Dawson v James Henry t/as Mainline Contracting and Anor

Evidence

1. The plaintiff relies upon an affidavit of his solicitor, Susan Newman, dated 19 August 2021 annexed to which are a number of medical reports and an expert report for the purposes of liability and a draft schedule of damages. The second defendant relies on an affidavit of its solicitor, Lia Alexandra Sparks, dated 21 September 2021 annexed to which are two medical reports.
2. Suffice to say both parties rely on expert orthopaedic and psychiatric evidence. As is not unusual the opinions offered by the respective orthopaedic surgeons and psychiatrists are somewhat different.
3. On an application like this it is thus difficult to determine that the amount to be awarded to the plaintiff is likely to exceed the jurisdictional limit of the District Court.
4. In Johnstone v State of New South Wales [1] Giles JA said: "The judge then stated his conclusion. He was dealing with the application as a matter of urgency, and in the circumstances could not be expected to give extensive reasons. 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. 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. In my opinion the judge's reasons, although brief, sufficiently disclosed why he came to his conclusion that it seemed unlikely. I do not think that there is insufficiency of reasons warranting leave to appeal."
5. In assessing whether the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit I must have regard to the evidence adduced both by the plaintiff and the second defendant. I am not engaged in an exercise of merely considering the plaintiff's evidence and assuming that it will be accepted.
6. Similarly, I would not merely consider the second defendant's medical and other evidence and assume that it would be accepted. It could not have been the intention of the legislature that this Court would be required to make findings as to the amount that the plaintiff will likely receive at this stage. That would be an impossible task as there is yet no lay evidence, other evidence corroborating the plaintiff's evidence, or any testing of the medical evidence.
7. It follows that I must assess the amount the plaintiff is likely to receive in a broad based fashion on the basis that he may be successful, not only on liability issues but also on damages issues.
8. That does not mean simply accepting the plaintiff's schedule of damages but the task is to generally assume that which the plaintiff says about his level of disability and economic loss might be accepted and at least in general terms, have regard to the competing evidence of the second defendant and then assess what he would likely receive. Such a finding does not mean that he will receive an amount in excess of the jurisdictional limit of the District Court. As is well known there are many things that may happen between such an application and a final assessment by this Court which might impact upon the amount he receives.

The Nature of the Claim and Evidence

1. The plaintiff is currently 34 years of age. He sustained injury on 6 March 2018 on a construction site. At that time he fell through some scaffolding. He was working as a plasterer for All Access Contracting. He was engaged to undertake plastering on the site. The second defendant's insured, being the head contractor, had apparently engaged the first defendant to install scaffolding.
2. The plaintiff says that whilst he was working on the upper level within a stair void system he stepped on a platform of the void protection system and the platform collapsed. He fell a distance of approximately three metres. The plaintiff says that the second defendant had failed to implement any hazard identification and risk assessment. It must be, on the plaintiff's case, that there was a defect in the void protection system for the scaffolding which had been erected.
3. Plainly, on the plaintiff's version of events, there is evidence which might provide a basis for him to succeed. The plaintiff says that as a result of the accident he sustained orthopaedic injuries being injuries to his left foot and lumbar spine. He says that he has developed a psychological illness in the nature of a chronic adjustment disorder with depressed mood consequent upon those injuries.
4. The plaintiff relies on the evidence of an occupational physician, Dr Uthum Dias, who has prepared two reports dated 21 October 2019 and 5 October 2020.
5. The plaintiff also relies on the reports of Dr Ben Hooi-Beng Teoh, psychiatrist, dated 24 August 2020 and 16 June 2021.
6. At the time of his examination on 5 October 2020, Dr Dias observed that the plaintiff was continuing to struggle with ongoing symptoms of pain, stiffness and discomfort affecting his left foot, left ankle and lumbar spine on a daily basis.
7. According to the plaintiff his symptoms have not improved over the past 12 months. He continues to suffer from pain in both areas. He has not had much by way of treatment in the intervening period. The plaintiff has returned to some part-time work including work in a bar.
8. Indeed, he provided a history to Dr Dias that he attempted to return to work in his plastering business but had to stop work because of unrelated conditions including the suffering of a further accident.
9. In any event, Dr Dias concludes that the plaintiff's symptomatology in his left foot seemed to be worsening rather than improving and that he has developed compensatory lower back pain due to the long altered gait mechanics referable to his foot injury.
10. Dr Dias considers that these injuries have permanently partially incapacitated the plaintiff for employment, that he would only be fit for part-time work in the plastering industry and there would be significant restrictions on his ability to do physical work.
11. Dr Teoh concluded that the plaintiff was suffering from a chronic adjustment disorder with depressed mood. As of June 2021, there was little improvement in his condition. He remained fit for suitable duties with restricted hours.
12. The second defendant arranged for the plaintiff to be examined by Dr Frank Machart, orthopaedic surgeon, on 26 February 2021. Dr Machart accepted that the plaintiff suffered from fractured metatarsals in the left foot and a lower lumbar injury causing radicular symptoms in the left leg. Dr Machart did not consider the plaintiff fit for the physically demanding work expected of his pre-injury employment as a plasterer. He was unable to say whether his symptoms would sufficiently resolve in due course to return to that industry.
13. The second defendant also arranged for the plaintiff to be examined by Dr Doron Samuell, psychiatrist, on 10 March 2021. Dr Samuell refers to a number of factors which might impact upon his psychological condition but accepts that according to the plaintiff he has experienced a combination of a depressed and anxious mood.
14. In summary, whilst there is some difference of opinion as to the plaintiff's prognosis and the extent of his disabilities, it appears that, on any view, the plaintiff will have difficulty maintaining work as a plasterer on a full-time and long term basis. He was in his early 30s at the time of the accident and was apparently self-employed or working as a contractor.
15. The solicitor for the plaintiff has prepared a schedule of damages which amounts to $1.06 million. As I understand the schedule, that assessment is on the basis of an allowance of 35 per cent of the most extreme case in the amount of $240,000 under the CLA and a total of approximately $550,000 to $600,000 on account of economic loss.
16. I understand that the plaintiff's claim for the allowance for past economic loss is essentially an analysis of how much he would have been earning if he had continued working as a plasterer (based on his own evidence) and the amounts he has served. As Mr Malouf says there is as yet no corroboration of his actual earnings but I am proceeding on the basis that these are the amounts that the plaintiff might obtain if successful.
17. In terms of the future the plaintiff assesses future economic loss on the basis of $450 net per week for the rest of the plaintiff's working life plus superannuation. Plainly the sum of $450 per week could only represent a partial loss and must be reflective of the plaintiff accepting that he has some ongoing earning capacity.
18. It may be reflective of the work he has been performing in a bar and in any limited plastering work.
19. The second defendant did not put forward any alternative assessment.
20. Whether the plaintiff receives the amount set out in the schedule remains for the hearing but even accepting some discounts on the amount set out in the plaintiff's schedule it is clear that he would receive in excess of the jurisdictional limit of the District Court of $750,000.

Conclusion

1. In all the circumstances, I am satisfied that the proceedings should be transferred from the District Court to this Court. I am satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court.
2. I thus make the orders set out in the summons being: 1. Proceedings 2019/00372446 issued in the District Court of New South Wales at Sydney are transferred to the Supreme Court of New South Wales at Sydney pursuant to s 140(1) and (3)(b)(i) of the Civil Procedure Act 2005 (NSW). 2. I list this matter for directions before the Registrar on 7 October 2021. 3. Costs of the Summons are costs in the cause.

Endnote

1. [2006] NSWCA 105 at [22]-[23] (Santow and McColl JJA agreeing); See also Aitofi v The Council of the City of Sydney [2020] NSWSC 611 at [29] (Adamson J). 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: 06 October 2021