I am dealing with a summons seeking an order under s 140 Civil Procedure Act 2005 (NSW) transferring this claim for damages for personal injury from the District Court to this Court.
The claim for damages arises out of injuries received by the plaintiff on 11 March 2013 when he was then working under a contract for services as a cultural advisor for the defendant. He was working at a desk in a chair and he lent on the arm of the chair, which either broke or gave way, causing him to fall to the ground where he suffered, on the evidence I have read, which I will refer to in a moment in a little more detail, significant injury involving his neck, his left arm and his left wrist.
The defendant, who is represented by Mrs Price, solicitor, neither consents nor objects to the application.
Even so, it remains for the Court to make a decision whether the condition expressed in s 140(3) has been satisfied in this case. This is not a case involving a claim for motor accident damages or work injury damages. In that event, Mr Sciglitano of Counsel, who appears for the plaintiff, needs to satisfy me that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court of $750,000.
As with all matters procedural in nature, the Court must exercise its powers in accordance with the requirements of the overriding purpose expressed in and amplified by the provisions of ss 56 to 60 Civil Procedure Act 2005.
As the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 makes clear, in respect of matters where there is what might be referred to as a late application including for a transfer, it is an important part of the obligation resting upon the moving party to provide a satisfactory explanation for that delay.
The application is made on the affidavit of the plaintiff's solicitor, Mr Adrian Barakat, sworn on 12 September 2017. It is also apparent from what I have been informed without objection from the Bar table that there was an earlier application in this Court.
Essentially, the proceedings were commenced in the District Court of New South Wales on 22 September 2015. It might be said that the District Court is a natural forum for the hearing of actions for personal injury. The plaintiff had by then undergone separate surgery to his wrist, left shoulder and also to his neck, but on 22 March 2016 he underwent an anterior cervical discectomy and fusion at the C5/6 and C7 levels of his neck. The plaintiff's solicitor swears that when he was told this he formed the view that the claim was potentially more valuable than the District Court monetary jurisdictional limit of $750,000 and he wrote to the defendant's solicitors seeking their consent to extend the jurisdiction.
The defendant's solicitors did not respond to that letter. However, they had previously filed a defence making it clear that the defendant would object to the statutory uplift expressed in s 51(4) District Court Act 1973 (NSW) applying in this case, if that was in play, and it no doubt follows from that pleading that the defendant was unlikely to consent to unlimited jurisdiction, as was its right.
It has been my experience over 40 years that most liability insurers do not consent to extended jurisdiction in the District Court, taking a view that if the matter is worth more than $750,000 it is appropriate that it be heard and determined in the Supreme Court.
In any event, an application was made in 2016 and determined by a judge on 18 October 2016. Neither legal representative, with no disrespect, can tell me the name of the judge because neither were involved in the case at that time. However, the application was then dismissed for want of appropriate medical evidence. There seems to be common ground that it was contemplated that a further application would be made and, for that reason, the defendant's costs of the previous application were reserved.
The matter has not been fixed for hearing in the District Court but is listed for directions on 31 October 2016, awaiting the outcome of this current application. This is a significant factor which may make it not inappropriate to make the order if the statutory condition is established.
After the surgery in March 2016 the plaintiff underwent yet further surgery on 13 December 2016 involving a decompression of the C6 interspace. From the up-to-date report of Professor Fearnside, a well-known neurological surgeon, it is apparent that that last operation has improved the plaintiff's condition somewhat in as much as it has relieved his left pain, which was no doubt the purpose of the procedure.
There is also psychiatric evidence that the plaintiff has suffered from psychiatric or psychological conditions consequent upon his physical injuries. He is currently aged 60 years and it is suggested that he would work until age 70 but for the injuries. Given the emphasis upon all people working longer these days, I do not think that that is an unreasonable assumption to make for present purposes.
I am satisfied that the surgery and the outcome of the application on 18 October 2016 provide the explanation for why this application is being made now.
Mr Sciglitano has reminded me of a previous decision of mine in Cubrilo v Veljovic [2015] NSWSC 367 where I made some observations about what a plaintiff needs to do to demonstrate that the amount to be awarded is likely to exceed the jurisdictional limit. In that case, I followed the decision of my colleague, Bellew J, in Younes v QIC Ltd (t/as Westpoint Blacktown) [2012] NSWSC 451 where his Honour referred to the process of deciding likelihood as being impressionistic. I added that the decision has to be made in a more or less summary fashion. I also said of the expression "likely to exceed", at [9]:
"…it does not mean more probably than not; and it requires the Court to make, as I have said, in a summary way, an assessment of whether there is a real chance of the plaintiff getting more than $750,000 in damages, if successful. That must depend upon the prospect that ... favourable evidence will be accepted in preference to the defendant's evidence. Now in that regard, I think all one can say is that there is material before me which persuades me that there will be evidence available at the trial which, if accepted, would justify an award of damages in excess of $750,000."
It seems to me that given that the process is impressionistic and made in a summary way, if it can be said that there is material exhibited in support of the application which indicates that there will be evidence available at the trial which, if accepted, would justify an award of damages in excess of $750,000, then the plaintiff has demonstrated, for the purposes of the statute, that damages are likely to exceed the jurisdictional limit of the District Court.
There is attached to Mr Barakat's affidavit a schedule of damages which suggests that if the plaintiff's evidence is accepted, damages are likely to approach $1.3 million. Given its attitude, the defendant has not put any evidence before me to suggest that the plaintiff's evidence, if accepted, does not support an award of damages in excess of $750,000.
Mr Sciglitano took me through Professor Fearnside's report of 30 June 2017 in some detail. It does seem to me, as he submits, that if the plaintiff is successful in his case on liability and Professor Fearnside's opinion is accepted, that the plaintiff is likely, in the sense I have discussed, to recover damages in excess of $750,000.
Professor Fearnside thinks that the plaintiff's condition is now stable and no further surgery is indicated. He also opines that it is unlikely that the plaintiff will return to his former occupation, although he does think a functional assessment and a vocational assessment may be indicated to determine whether - I emphasise "whether" - the plaintiff will be fit to return to work in the open market in the future. He also acknowledges that the plaintiff does require domestic assistance for heavier household chores such as gardening, garden maintenance, cleaning of baths, floors and walls and the like, which should be assessed by an occupational therapist.
From those comments, it seems that there is still further investigation to be carried out. However, looking at the large number of surgical procedures undergone and the opinion about current employability, I am satisfied that damages are likely to exceed the jurisdictional limit of the District Court in the sense I have discussed.
It may well be that the schedule of damages is somewhat ambitious but, as Mr Sciglitano points out, if one accepts the evidence currently that the plaintiff is totally unfit for work and proceeds on the basis that he was earning about $1000 per week net, which seems to be supported by his evidence, then past and future economic loss alone, including loss of the employer's contribution to superannuation, totals about $650,000. When one gets to that level, one can proceed on the basis that even more modest allowances for the other heads than those propounded in the schedule could easily take the award over the $750,000 mark and, accordingly, I am satisfied that this case should be transferred to this Court.
Before pronouncing an order, there is an issue about costs. Mrs Price has pointed out that, as I have said, the costs of the previous application were reserved. Although there has been a material change in circumstances since October 2016 in the sense that further surgery has been carried out, it does seem to me that if the reason for the failure of the application at that time was a deficit in the evidence, there is no reason why the defendant should not have the costs of that previous summons.
So far as the costs of the present summons are concerned, the plaintiff seeks no more than that the costs be costs in the cause and it seems to me that that is an appropriate even-handed order to make in the circumstances, given the defendant's, may I say, proper attitude to the application and the consideration that there is likely to be an issue about liability.
For those reasons, I make the following orders:
1. The matter 2015/277488 in the District Court of New South Wales be transferred to this Court under s140 Civil Procedure Act 2005;
2. The pleadings in the District Court may stand as pleadings in this Court;
3. List the matter for directions before the Common Law Registrar at 9am on Friday, 27 October 2017;
4. The plaintiff is to pay the defendant's costs of the summons dismissed on 18 October 2016;
5. The costs of this summons are the parties' costs in the cause.
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Decision last updated: 23 October 2017