Kalis v Waltham [2010] ACTSC 94

3. The plaintiff's action in the Magistrates Court was commenced on 22 October 2007. The plaintiff was then represented by Mr Paul Crabb, Solicitor, of Capital Lawyers. The collision is said to have occurred in circumstances where the plaintiff was driving along Bentham Street when the defendant reversed into the path of his vehicle. I was informed on the hearing of the application that the plaintiff's case will be that the collision occurred in that portion of Bentham Street adjacent to the Yarralumla shopping centre, where there is provision for right-angle nose-to-curb parking, and that the defendant reversed out of a parking space into the plaintiff's path. The plaintiff's injuries are said to have been an injury to the neck causing aggravation of pre-existing cervical spondylosis, and injuries to both shoulders. Particulars are set out in the statement of claim of treatment expenses to that date of $760.10, domestic assistance valued at $180 and loss of earnings of $3185.97.

4. The application is supported by an affidavit by the plaintiff's present solicitor, Mr Richard Faulks of Stacks Compensation Lawyers. Mr Faulks was admitted as a solicitor in 1983. He has a substantial plaintiffs' personal injury practice and very considerable experience in that area. It is a matter of general knowledge in the Canberra legal community that he is chairman of the civil litigation committee of the Law Society of the Australian Capital Territory, and a former national president of the Australian Plaintiff Lawyers Association.

5. In his affidavit, Mr Faulks swears that he has sought advice from Mr Steven Hausfeld of counsel. Following receipt of the advice, he is of the view that if the plaintiff succeeds in the action, the amount of the damages will probably exceed the jurisdictional limit of the Magistrates Court (that is, $50,000.00).

6. The plaintiff asserts in a proposed amended statement of claim that the second accident happened in circumstances where the defendant made a right turn across the plaintiff's path at an intersection controlled by traffic lights, both drivers having a green light.

7. The injuries and disabilities said to flow from the second accident were an injury to the neck, aggravation of a pre-existing neck condition with pain radiating to the right arm, and shock and anxiety associated with driving. It is asserted that the plaintiff lost time from work on sick leave following the second accident. The proposed amended statement of claim does not set out any further detailed particulars of special damages.

8. The defendant's vehicle in the first collision was registered in New South Wales, while the proposed second defendant's vehicle was registered in the Australian Capital Territory. However, by chance, both vehicles were insured by the same authorised insurer, and the same solicitors and counsel represent both the existing and the proposed new defendant.

9. Mr Faulks has instructions to commence proceedings in relation to the plaintiff's second accident in this court. Mr Faulks expresses the view, following advice from counsel, that the potential damages in the plaintiff's claim arising from the second accident would exceed $50,000.00. He says that it would be appropriate for the two actions to be heard together.

10. Mr Faulks was vigorously cross-examined on the hearing of the application by counsel for the defendant, but did not resile from his view that the damages arising from the first accident were likely to exceed $50,000.00. He agreed that the special damages were modest and that an award exceeding $50,000.00 would comprise overwhelmingly general damages for pain and suffering and loss of enjoyment of life.

11. It emerged from an affidavit affirmed by Ms Michelle Hayes, an experienced defendants' personal injury solicitor, that there is another action against the defendant in the Magistrates Court, brought by a woman claiming to have been a passenger in the plaintiff's car in the first accident. That action was also commenced by Capital Lawyers. Mr Crabb of that firm continues to represent that plaintiff.

12. Mr Crabb also acts for another woman claiming to have been a passenger in the plaintiff's vehicle at the time of the second accident. She claims damages for injuries but has not commenced court proceedings.

13. It is apparent that the insurer does not accept that the claims by the plaintiff, and perhaps any of the claims mentioned, are genuine. Counsel for the defendant informed me that the defendant's case will be that there was no impact between the two cars in the first accident. The solicitors, on instructions from the insurer, deny liability in relation to the second accident but it is not clear precisely what the proposed defendant's case will be in relation to the circumstances of that asserted collision.

14. Ms Hayes deposes that the vehicle being driven by the defendant at the time of the first accident was owned by a Ms Chew. She says that her firm's conduct of the defence of the action in the Magistrates Court has been significantly complicated by the overseas residence of both the defendant and Ms Chew. During the second half of 2008, Ms Hayes attempted to contact both women. Ms Chew was located by an investigator in London in May 2009. The defendant was subsequently found to be in Kinshasa in the Democratic Republic of the Congo. Ms Hayes says that the defendant is a Nepalese-born citizen of the United Kingdom. She told Ms Hayes by telephone that she was leaving Kinshasa in August 2009 for a holiday in Europe and would be staying at Cambridge in England. She gave the impression that she might not be returning to Kinshasa. Ms Hayes was unsuccessful in attempts to contact the defendant in Cambridge, and ultimately located her through an investigator at Nairobi in Kenya.

15. Ms Hayes says she has found obtaining instructions from the defendant extremely difficult. Communications have been complicated by time zone differences and technology shortcomings in Africa, although she says that she has succeeded in having the defendant affirm affidavits verifying a list of documents and answers to interrogatories (which I have not seen).

16. Ms Hayes gives evidence leading to a conclusion that the removal and joinder sought would lead to delays in having the actions heard. She expresses the opinion that if the orders sought are granted, she would not be in a position to sign a certificate of readiness for twelve to eighteen months, having regard to the various interlocutory steps which would be required before that point was reached. She bases this on the fact that similar steps in the Magistrates Court in the existing action have taken about two and a half years, attended by delays on both sides. She says that credit, liability and quantum are in dispute in both claims by the plaintiff and in the claims by both passengers. She says that if the present action is removed to the Supreme Court, the current action by the passenger in the first accident should also be transferred, to avoid bringing the defendant and Ms Chew to Australia twice, and because there are issues as to credit and liability common to both actions.

17. Ms Hayes also says that if the passenger in the second accident is to bring an action, it would be appropriate for her action to be heard at the same time as the plaintiff's action arising out of that accident. Ms Hayes estimates the likely duration of the hearing of the claims by the plaintiff and the passenger arising out of the first accident as two weeks. If these actions were heard at the same time as the plaintiff's action and the passenger's action arising out of the second accident, she estimates a hearing duration of at least three weeks. She expresses the opinion that in this court, based on her recent experience, a hearing of that length would be given a hearing date more than a year after being set down. She does not say that a hearing would be available in the Magistrates Court any earlier.

18. Counsel for the defendant tendered a report by an orthopaedic surgeon, Dr James Bodel, addressed to Mr Crabb at Capital Lawyers, following an examination of the plaintiff on 20 February 2008, about six weeks after the second accident. Dr Bodel took a history from the plaintiff and conducted a physical examination. He had the benefit of a report of an x-ray of the cervical spine in May 2007.

19. Dr Bodel expressed the view that the plaintiff had suffered soft tissue injuries to the neck, back and right arm in his two accidents. He had mechanical symptoms in the neck and back, with radicular complaints in the right arm, guarding at the base of the neck on the right side and some mechanical backache. He had been able to return to work but was having difficulty with his full-time clerical and administrative tasks. Dr Bodel thought that in spite of these complaints, the plaintiff should be able to continue with his work indefinitely. He had significant pain on clinical testing which in Dr Bodel's opinion was due to the second accident. There was potential for further recovery over the next six to eight months. The plaintiff had never completely recovered from the first accident. He would require continuing physiotherapy in the short term, and perhaps intermittent physiotherapy in the medium term as well as analgesic medication. He had had previous neck and back pain associated with earlier car accidents before the two recent accidents, but his general health was quite good. The two recent accidents appeared to have aggravated pre-existing degenerative change in the cervical spine and the lumbosacral area.

20. Mr Faulks conceded in cross-examination that he was not in possession of any medical reports more favourable to the plaintiff's case than the report of Dr Bodel.

The approach of the court to applications for removal from the Magistrates Court of actions for personal injury

21. The power of removal is conferred by section 270 of the Magistrates Court Act 1930 (ACT), which is in the following terms:

270 On the application of a party to a proceeding in the Magistrates Court, the Supreme Court may order that the proceeding be removed into the Supreme Court on the conditions about costs, security for the amount claimed or costs, or otherwise, that the Supreme Court considers just.

22. Whilst the power is a general one, the overwhelming volume of applications for removal are made in actions for damages for personal injury, usually in circumstances where the plaintiff's condition has worsened since proceedings were commenced, or where counsel has advised that the upper limit of damages might exceed $50,000.00.

23. It is rare for such an application to be opposed, although the making of an order for removal always remains within the discretion of the court, even if the application is not opposed or indeed is consented to. The usual practice of the court is to require evidence of the opinion of counsel or an experienced solicitor to the effect that if the plaintiff's case is accepted, the damages likely to be awarded may exceed $50,000.00. The court will generally order that the costs of the application for removal be reserved, so that this issue can be revisited in the light of the eventual assessment of damages.

24. It will not generally be appropriate for the court to be given a copy of the advice on quantum. It would clearly be undesirable for the judicial officer who hears the action to have seen such an advice at an earlier stage.

25. The court has also taken the view that the expression of such an opinion by a solicitor in an affidavit, or the disclosure that advice has been received by counsel, does not amount to a waiver of privilege in the content of the advice. If it were otherwise the plaintiff would be placed in an impossible position, having regard to the court's practice of requiring evidence of expert opinion about the likely range of damages in general terms.

26. Almost always such applications will be granted, the court taking the view that any prejudice to the defendant arising from the removal is capable of being met by orders for costs, and perhaps other matters, when final orders are made in the action.

27. It is inappropriate for the court to conduct a mini-trial of the action for the purpose of forming a view as to whether the opinion expressed by the solicitor or counsel for the plaintiff is justified. The reason for such an approach is self-evident. The application is made at a time which is probably well before the hearing of the action. Generally speaking the court does not have the benefit of any oral evidence of the plaintiff, and thus of any opportunity to arrive at an evaluation of the effects of the injuries on the plaintiff. It hardly needs to be said that similar physical injuries can have very different effects on different people. It is quite conceivable that this court might refuse an application and subsequently the Magistrates Court might assess damages in a sum of more than $50,000.00. The Magistrates Court would be obliged to enter judgment for the limit of its jurisdiction. A plaintiff in those circumstances would have been done a great injustice, far outweighing any disadvantage to a defendant where removal was ordered but the plaintiff was subsequently awarded less than $50,000.00.

28. Were the present application limited to an action by a single plaintiff against a single defendant arising out of a single incident, the outcome would be beyond argument. The court would not hesitate to order the removal of the proceedings. The question arises whether the facts of the present case militate against removal.

29. On the one hand, the plaintiff has not yet commenced proceedings arising out of the second accident. He is still in time to do so. Mr Faulks is instructed to bring such proceedings in this court. This court would plainly have jurisdiction. The fact of concurrent proceedings involving the same plaintiff in two courts would be a powerful factor in favour of removal of the earlier action to this court even if it was clear that the damages in the earlier action would not exceed $50,000.00, because of the desirability of the same court assessing the plaintiff's damages for the injuries sustained in the two accidents at the same time and on the same evidence.

30. The major argument against removal is that the action by the passenger in the first accident remains in the Magistrates Court, and that the two actions by the plaintiff and the passenger arising out of the first accident could be heard more quickly in the Magistrates Court. The evidence does not enable me to arrive at a view as to when a hearing in the Magistrates Court with a two-week estimate would be likely to take place.

31. If the present action is removed to this court, it will of course be open to the present defendant to apply for removal to this court of the action by the passenger. Having regard to the unusual circumstance of the defendant's witnesses in the two actions having to travel from Africa to give evidence, there would be a strong argument for such a removal and for the hearing of the two actions together.

32. This would not, however, resolve the other difficulty of hearing both of the plaintiff's claims at the same time.

33. No proceedings have yet been instituted by the passenger in the second accident. It is not suggested that there is any order which I could presently make which would result in her claim being adjudicated in conjunction with the present action.

34. If a choice had to be made between having the plaintiff's two claims heard together, and having the actions by the plaintiff and the passenger arising out of the first accident heard together, with those outcomes being mutually exclusive, the court would have a difficult choice to make. However, it seems to me that it is possible to achieve an outcome whereby both of the plaintiff's claims, and the claim by the passenger arising out of the first accident, can be heard together. Whether the passenger in the second accident wishes to be part of the process is a matter in her hands, though it may well be achievable.

35. If I am to order the removal of the present action to this court, there seems no purpose in requiring the plaintiff to commence a separate action for damages in respect of his injuries arising out of the second accident. Bearing in mind that the same solicitors are on both sides, and taking account of the desirability from the court's perspective of having the plaintiff's damages arising out of both accidents assessed at the same time, the orders for joinder and amendment of statement of claim would seem to follow.

36. In all of the circumstances the interests of justice favour the removal of the existing action to this court, the joinder of the proposed second defendant and the amendment of the statement of claim to plead the plaintiff's action against the proposed second defendant. Orders will be made accordingly.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the plaintiff: Stacks Compensation Lawyers