Lazare v City of Sydney Council and ors.

The procedural history

1. The proceedings against the first, second and third defendants were commenced on 17 September 2012, more than three years ago. Paragraph (10) of the defence filed by the third defendant on 24 September 2013 was in the following terms: "The third defendant hereby gives notice pursuant to section 51(2)(b) of the District Court Act 1973 (NSW) that it objects to any extension of the Court's jurisdictional limit including extension to unlimited jurisdiction".
2. Following the commencement of the proceedings there were various directions hearings in the District Court at which orders were made requiring the plaintiff to file and serve evidentiary material.
3. At a directions hearing on 11 April 2014, the plaintiff was ordered to serve, by 30 May 2014, reports obtained from Dr Conrad and Dr Bodel. She failed to comply with that order. Reports of Dr Conrad (dated 3 April 2014) and Dr Bodel (dated 18 April 2013) were served on 5 June 2014.
4. On 6 June 2014 the matter was placed in the "inactive list" in the District Court for a period of 6 months, seemingly on account of the plaintiff's surgery. At a directions hearing on 4 December 2014, approximately 5 months after that surgery, the plaintiff was ordered to serve any refresher medical evidence by 30 January 2015. On that day, the plaintiff's solicitor forwarded an email to the solicitors for the first, second and third defendants stating: "I refer to the Court's orders and note the plaintiff was due to serve refresher medicals today. I have reviewed the matter and note the earliest our medicals were (sic) late February and mid March given the Christmas/New Year closure. Accordingly, the plaintiff will not be in a position to comply with same in the circumstances. The Plaintiff is prepared to extend time for service of the Defendants' medicals to allow for same. Apologies are extended for any inconvenience caused".
5. It would appear, on the evidence before me, that there was no formal response to that communication from the representatives of any of the defendants who were then parties to the proceedings. However, at a directions hearing on 13 February 2015 the time for the plaintiff to serve her refresher medical evidence was extended to 10 April 2015. The plaintiff complied with that order by serving reports of Dr Conrad (dated 25 February 2015), Dr Bodel (dated 7 April 2015) and Dr Clark (dated 18 March 2015). At that same directions hearing, the proceedings were listed for trial commencing on 2 November 2015, with an estimate of 5 days. That trial date was subsequently confirmed at a further directions hearing on 16 July 2015.
6. A further directions hearing took place on 11 September 2015, at which time the plaintiff foreshadowed the present application. The application was in fact filed in this Court on that day.
7. Orders were also made in the District Court requiring the plaintiff to serve a final statement of particulars. Initially, the plaintiff was ordered to do so by 3 March 2014. That was later extended until 30 January 2015. It was extended again until 10 April 2015. It was extended yet again until 18 September 2015. The particulars were finally served on 29 September 2015.

The plaintiff's claim for damages

1. Annexed to the second of Ms Villar's affidavits is a schedule of damages ("the schedule") prepared by counsel who is retained on behalf of the plaintiff. That schedule assesses the plaintiff's damages as follows: 1. Non-economic loss (35%) $200,000.00 2. Past out of pocket expenses $150,000.00 3. Future out of pocket expenses $75,000.00 4. Past economic loss $355,000.00 5. Future economic loss $209,508.00 6. Past gratuitous assistance $80,000.00 7. Future paid assistance $25,000.00 8. Future domestic assistance $118,000.00 9. Past superannuation $39,000.00 10. Future superannuation $25,000.00 11. Fox v Wood component $40,000.00
2. The total of the schedule is stated as $1.276 million. It is in fact $1,316,508.00. Further, and in light of the submissions made by the parties, two particular matters should be noted in respect of the schedule. Firstly, the calculation of past and future economic loss is based upon a loss of $1,300.00 per week. Secondly, the calculation of future domestic assistance is based upon a need for 4 hours of assistance per week. I will return to these matters in due course.
3. Various medical reports were annexed to the second of the affidavits of Ms Villar, and to the affidavit of Ms Ruschen. I was taken, in particular, to the following parts of that evidence: 1. on 15 February 2011 the plaintiff was examined by Dr Wallace on behalf of the Workers Compensation Insurer. Dr Wallace concluded at that time that the plaintiff was fit for her pre-injury duties; 2. on 8 November 2011, the plaintiff was examined by Dr Perla on behalf of the Workers Compensation Insurer. He also concluded that she was fit for her pre-injury duties; 3. on 8 April 2013 the plaintiff was examined by Dr Conrad at the request of her solicitors, who expressed the view that she would be fit to do twelve to fifteen hours of light clerical work per week, and "might need about six hours per week" of domestic assistance; 4. on 18 April 2013 the plaintiff was examined by Dr Bodel at the request of her solicitors, who noted that she was "currently certified as being fit for suitable duties" and required 4 hours of domestic assistance per week; 5. on 3 April 2014 the plaintiff was again examined by Dr Conrad who expressed the view that following surgery she may be able to undertake twelve to fifteen hours of light clerical work each week, and that she required six hours of domestic assistance per week; 6. on 25 February 2015 the plaintiff was again examined by Dr Conrad who reported that she "may be able to do very light office-based work, doing twelve hours per week" but that it was "highly unlikely that she will be employable along these lines". He also expressed the view that she "might need six to eight hours" of domestic assistance each week; 7. on 17 March 2015 the plaintiff was examined by Dr Bodel at the request of her solicitors. Dr Bodel expressed the view that the plaintiff's ability to return to work had been improved as a consequence of her surgery, and that she "may be able to tolerate part time work activities in an office based situation". He also concluded that the plaintiff "does require domestic assistance for heavy household maintenance and cleaning activities ….."; 8. on 18 March 2015 the plaintiff was assessed by Dr Clark, Psychiatrist, at the request of her solicitors who concluded that she was "unemployed and most unlikely to be employed"; 9. on 5 June 2015 the plaintiff was assessed by Susan Dinley, Consultant Occupational Therapist, on behalf of the third defendant. Ms Dinley concluded that from an Occupational Therapy perspective, the plaintiff could return to work but would require a funded return to work programme to enable her to do so. She assessed the plaintiff's need for domestic assistance as follows: 1. for the period 18 September 2009 to 2 June 2010 - 2.25 hours per week; 2. for the period 3 June 2010 to 12 October 2010 - 4.25 hours per week, reducing to 2.25 hours per week; 3. 13 October 2012 to 8 July 2014 - 4.25 hours per week reducing to 2.25 hours per week; 4. 9 July 2014 to the present - 7.25 hours for 2 weeks then .25 hours per week thereafter.

Submissions of the Plaintiff

1. Initially, counsel for the plaintiff submitted that the procedural history of the matter was irrelevant to my determination of the present application. However, counsel ultimately withdrew that submission and accepted that such history was relevant, although not determinative. Counsel candidly accepted there had been delay on the part of the plaintiff in bringing the present application. Whilst he described it as "regrettable", he submitted that the extent of such delay, and the extent of the plaintiff's failures to comply with orders of the District Court, were of less gravity in comparison to other instances where this Court has been asked to determine an application to transfer proceedings. In this regard, counsel took me to various aspects of the history of the proceedings which, he submitted, placed the delay, and the plaintiff's failures to comply with orders, in their proper context.
2. Firstly, counsel pointed to the fact that the proceedings had been placed in the "inactive list" in the District Court for a period of six months following the plaintiff's surgery in July 2014. He submitted that this was an obviously significant period of time, and one which provided part of the context in which any procedural issues should be considered.
3. Secondly, counsel pointed to the fact that at the end of the "inactive period" the plaintiff's solicitor had written to those acting for the first, second and third defendants (in the terms set out at [11] above) acknowledging that further time would be needed for the service of updated medical evidence, and seeking the indulgence of the defendants in that respect. Counsel submitted that in those circumstances, this was not "a case of just flagrant ignoring of a Court order".
4. Thirdly, in terms of the bringing of the present application, counsel for the plaintiff submitted that the summons was filed in accordance with a timetable set by the District Court at the directions hearing on 11 September 2015. He also pointed to the fact that it was not until September of this year that leave was granted to the plaintiff to maintain the proceedings brought against the fourth defendant. Counsel submitted that the granting of that leave was a material factor in the advice given to the plaintiff to bring the present application. He also pointed to the fact that the plaintiff's solicitors had previously sought to ascertain the position of the defendants as to the jurisdiction of the District Court being extended, but that no response had been received from any of them.
5. Ultimately, counsel for the plaintiff accepted that the delay in bringing the application was to be viewed in terms of years rather than months. He also accepted that there had been failures on the part of the plaintiff to comply with orders of the Court requiring the service of evidence and particulars. However he submitted that, all other things being equal, such considerations should not operate to defeat the present application.
6. In terms of the plaintiff's likely damages, counsel pointed to a number of matters.
7. Firstly, he highlighted the fact that the plaintiff had undergone three separate surgeries, the last being a spinal fusion. This, he submitted, was reflective of the seriousness of the plaintiff's condition, and her entitlement to substantial damages.
8. Secondly, he pointed to the fact that the plaintiff alleged psychiatric as well as physical injury. He relied upon the fact that on that basis alone, Dr Clark had assessed the plaintiff as having substantial whole person impairment.
9. Thirdly, counsel submitted that the plaintiff had an entitlement to substantial damages for domestic assistance, particularly in respect of paid care for the future.
10. Finally, counsel pointed to the fact that the Workers Compensation insurer had paid substantial amounts to, or on behalf of, the plaintiff.

Submissions of the third defendant

1. On behalf of the third defendant, Ms Ruschen made two broad submissions, namely that: 1. the evidence failed to establish that it was likely that the plaintiff's damages would exceed the jurisdictional limit of the District Court; 2. the making of the order sought would be inconsistent with the provisions of s. 56 of the Civil Procedure Act 2005 ("the CPA") in light of the plaintiff's various procedural defaults, coupled with the delay in bringing the present application.
2. As to the first of those matters, Ms Ruschen turned initially to the plaintiff's claim for damages for past and future economic loss. In doing so, she pointed out that: 1. the calculation of loss in the schedule was apparently based on the proposition that the plaintiff had been totally incapacitated since the accident, and would continue to be totally incapacitated into the future, up to retirement age; 2. the plaintiff's particulars had pleaded pre-accident earnings of $1,000.00 per week; and 3. material produced on Subpoena (and annexed to her affidavit) demonstrated that the plaintiff's weekly earnings at the time of the accident were $890.00.
3. With these matters in mind, Ms Ruschen made a number of submissions. Firstly, she pointed out that there was medical evidence, including evidence served by the plaintiff, which supported the view that the plaintiff had, for some time, retained an earning capacity. Secondly, she highlighted the fact that the plaintiff had been employed on a temporary basis prior to the accident which, she submitted, was a circumstance which had a bearing upon her claim for damages for economic loss. Thirdly, she submitted that the calculation of economic loss set out in the schedule, based as it was on a figure of $1,300.00 per week, had no proper evidentiary foundation in light of the material produced on Subpoena. The effect of Ms Ruschen's submissions was that in all of these circumstances, the assessment of the plaintiff's likely damages for past and future economic loss as set out in the schedule was inflated.
4. Ms Ruschen also took me to the report of Ms Dinley in respect of the plaintiff's claim for domestic assistance. She submitted that as a Consultant Occupational Therapist, Ms Dinley was the only person appropriately qualified to express an opinion as to the plaintiff's needs in that regard (the plaintiff's solicitors not having qualified an Occupational Therapist to provide a report). She submitted that little weight could be given to the opinions of Dr Conrad and Dr Bodel in respect of this issue, and that neither had articulated the basis of their respective opinions as to the plaintiff's need for domestic assistance. She submitted that Ms Dinley's assessment would, if accepted, result in an award of damages for domestic assistance which was substantially less than that set out in the schedule.
5. As to the procedural history, Ms Ruschen firstly relied upon the fact that there had been an attempt to settle the plaintiff's claim against the fourth defendant at a mediation in November 2014. She pointed out that this was after the plaintiff's most recent surgery and submitted that the quantum of the plaintiff's likely damages must (or at least should) have been at the forefront of the minds of those who were acting for her at that time. She submitted that the delay which had occurred between that time and 11 September 2015 (when the present application was filed) was both significant and unexplained. She further submitted that the significance of that delay was rendered even greater in circumstances where a trial date was set within that period. Ms Ruschen also pointed to the fact that her client had made its position clear about the issue of extended jurisdiction at the time of filing a defence in 2013, some two years ago.
6. In terms of the procedural history of the matter generally, Ms Ruschen highlighted the various failures of the plaintiff to comply with orders requiring her to serve expert evidence and particulars. Whilst she acknowledged that following the email of 30 January 2015 the defendants had accommodated the late service of the plaintiff's medical evidence, she submitted that there were significant defaults on behalf of the plaintiff before and after that time, both in terms of the service of medical evidence, as well as in terms of the provision of particulars. These matters, she submitted, ran contrary to the general provisions of s. 56 of the CPA and thus weighed against granting the orders sought.

THE RELEVANT LEGISLATIVE PROVISIONS

1. Section 140 of the CPA is in the following terms: 140 Transfer of proceedings to higher court (cf Act No 9 1973, section 145; Act No 11 1970, section 21B) (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. (2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District 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. (4) Proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court. (5) This section extends to proceedings that have been transferred to the District Court or the Local Court pursuant to a previous transfer order under this Division or under Division 2 or 3.
2. Section 56 of the CPA provides (in part) as follows: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
3. Section 58 of the CPA is also relevant: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

CONSIDERATION

1. The two issues which were the principal focus of the parties' submissions were: 1. the procedural history of the proceedings and, more specifically: * the delay in bringing the present application; and * the failures on the part of the plaintiff to comply with orders of the Court; and 1. the likely award of damages to the plaintiff, particularly in respect of economic loss and domestic assistance.

The procedural history

1. Although not determinative, the procedural history is clearly relevant to my determination: Younes v QIC Limited trading as Westpoint Blacktown [2012] NSWSC 451 at [45]-[47], citing Sanderson Pty Limited v Kirby [2000] NSWSC 924; Bowditch v Hoey (NSWSC unreported 6 February 1997). Its relevance stems from the fact that s. 140 of the CPA confers a discretion which is to be exercised having regard to ss. 56 and 58: Every v Osborne [2012] NSWSC 1437 at [18]. A number of observations should be made about the procedural history of these proceedings in the District Court.
2. Firstly, the proceedings against the first three defendants were commenced on 17 September 2012. The present application was filed almost three years later. I accept that the proceedings were inactive for a period of 6 months between about June and December of 2014. Whilst that is obviously relevant, there is simply no explanation why the present application has been brought at such a late stage. I am not able to accept the submission that a material catalyst for the making of the application was the order made by Judge Hatzistergos in September of this year granting the plaintiff leave to maintain proceedings against the fourth defendant. On the chronology drawn from the evidence before me, the plaintiff had completed the service of her medical evidence in April. The nature and extent of the plaintiff's case on damages must have been apparent at that time to those acting for her. Indeed, there is force in Ms Ruschen's submission that the plaintiff's case in that respect must have been apparent at the time of the mediation in November 2014. In all of these circumstances the delay, and the lack of explanation for it, are rendered even more significant in circumstances where the plaintiff has been on notice of the third defendant's opposition to extended jurisdiction since September 2013.
3. Secondly, and quite apart from the unexplained delay, there have been a number of failures on the part of the plaintiff to comply with orders made in the District Court requiring the service of expert reports and particulars. Even accepting counsel's submission that the plaintiff's failure to provide particulars by 30 January 2015 was not a case of flagrantly ignoring a court order, there have been, as I have set out, numerous other failures on the part of the plaintiff to comply with orders of the District Court. It is no answer to say that the degree of delay and default on the part of the plaintiff in those respects was less than that considered by the Court in other cases where a similar application was made.
4. I accept that the delay in bringing the application, and the failures on the part of the plaintiff to comply with orders of the District Court, are not, of themselves, determinative. However in my view, particularly bearing in mind ss. 56 and 58 of the CPA, they are matters which weigh against the making of the order sought.

The plaintiff's likely damages

1. In determining the likely award of damages, the approach to be taken is an impressionistic one. I am not required to engage in a preliminary trial of the matter and, in particular, I am not required to engage in an individual assessment of each head of damage under which a claim is made: Younes (supra) at [50] citing Johnstone v New South Wales [2006] NSWCA 105 at [22]-[23]. Adopting that approach there are two aspects of significance in respect of the plaintiff's likely damages, namely the claim for past and future economic loss, and the claim for the cost of domestic assistance.
2. As far as the claim for economic loss is concerned, the calculation in the schedule is based upon earnings of $1,300.00 pw. Three observations may be made about that calculation.
3. Firstly, the most recent statement of particulars filed on 29 September 2015 pleads that the plaintiff "was employed by the Defendant as a personal assistance (sic) earning on average $1,000.00 pw". In these circumstances, the basis of the figure of $1,300.00 per week which was used for the purposes of the calculation set out in the schedule is not apparent.
4. Secondly, the wage records of the plaintiff produced under Subpoena and annexed to the affidavit of Ms Ruschen (which commence in April 2008) establish that when the accident occurred in September 2009 the plaintiff was earning a net weekly wage of $890.00 and had been since about 4 August 2009. For the two months prior to that, her wage was $815.50. Before that, it was $811.50. All of these amounts are substantially less than the amount of $1,300.00 used in the schedule. Moreover, such amounts do not produce average weekly earnings of $1,000.00 as pleaded in the particulars.
5. Thirdly, the calculation of past and future economic loss as set out in the schedule appears to be based upon the plaintiff being totally incapacitated for all forms of work since the accident, and having no residual earning capacity at all. There is evidence (including opinions expressed by medical practitioners qualified by the plaintiff's solicitors) which support the conclusion that the plaintiff retains some earning capacity (see 17 and (vii) above) and has done since April 2013 (see 17 above) or perhaps even before that (see 17 and (ii) above). To the extent that Dr Clark expressed the view that the plaintiff was "most unlikely to be employed", it is relevant to note that he examined the plaintiff for medico-legal purposes only, and specifically noted that she had received no psychiatric or psychological treatment since the accident.
6. In these circumstances, I accept the submission of Ms Ruschen that the calculation of the plaintiff's entitlement to damages for economic loss as set out in the schedule appears inflated. It is at odds with the documentary and expert evidence to which I have referred. It has a "flow on" effect in respect of the calculations made in respect of loss of superannuation.
7. In terms of the claim for domestic assistance, there will obviously be evidence from the plaintiff at trial which goes to that issue and which, if accepted by the trial judge, may be capable of constituting an appropriate evidentiary basis for an award of damages: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 at [54] per Allsop P (Campbell and Meagher JJA agreeing). However in the present case, I am not aware of what evidence will be given by the plaintiff in relation to this issue. Moreover, even if that evidence were before me, I would not be in any position (nor would it be my role) to determine the likelihood of its acceptance, or rejection, by a trial judge.
8. I cannot ignore the contents of the report of Ms Dinley, upon which the third defendant will rely. Ms Dinley is the only Consultant Occupational Therapist who has been qualified in the proceedings. She has assessed the plaintiff's need for domestic assistance at a level which is substantially less than what is calculated in the schedule of damages. The plaintiff, of course, relies upon the opinions of Dr Conrad and Dr Bodel to support that part of her claim. Even assuming that those opinions are admissible, there may well be some issue as to the weight which can be attached to them. In this regard, I am mindful of the observations of Basten JA in Boral Bricks Pty Limited v Cosmidis; Boral Bricks Pty Limited v DM and BP Wiskich Pty Limited [2013] NSWCA 443 at [93], to the effect that an assessment of the number of hours per week which might be required to undertake domestic duties and gardening is not the kind of expertise normally attributed to orthopaedic surgeons.
9. In light of the submissions made on behalf of the plaintiff three further matters should be noted. Firstly, whilst it may be that the Workers Compensation insurer has paid certain amounts to or on behalf of the plaintiff, it will be a matter for the trial judge to assess the plaintiff's damages on the evidence.
10. Secondly, in terms of any assessment of non-economic loss, it is clearly the case that the plaintiff has undergone three separate surgical procedures. The most significant of those was the fusion surgery in July 2014. According to Dr Bodel, that surgery has been helpful. Thirdly, the opinion of Ms Dinley would, if accepted, support a conclusion that the plaintiff's injuries have not given rise to any significant necessity for domestic assistance. Finally, to the extent that the plaintiff advances a case of psychiatric injury, I have noted (at [46] above) that she has not sought any psychiatric or psychological treatment. All of these matters will necessarily impact upon any assessment of damages for non-economic loss.
11. For all of these reasons I am not satisfied that it is likely the plaintiff's damages will exceed the jurisdictional limit of the District Court.
12. It follows from the foregoing that the application for the transfer of the proceedings to this Court should not be granted.

ORDERS

1. I make the following orders: 1. The summons is dismissed. 2. The plaintiff is to pay the costs of the first, second, third and fourth defendants, as agreed or assessed.

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: 20 October 2015