This is a very tragic case. The plaintiff suffered a catastrophic head injury on 15 December 2012 when he was attempting to alight from a car driven by his wife. A neurologist Dr Darveniza has assessed his whole person impairment at 96 per cent, and he has been accepted as a lifetime participant in the Lifetime Care and Support Scheme. This means that the damages available to him in the event that he is successful in the claim will be limited, or restricted, to damages for non-economic loss and economic loss.
By a motion filed on 12 February 2016, the defendant applies for the proceedings to be transferred to the District Court of NSW under s 146 Civil Procedure Act 2005 (NSW). The District Court, like this Court, has unlimited jurisdiction in motor accident claims. Indeed, I think it is fair to say that the vast majority of motor accident claims that go to court, and are not resolved in the Motor Accident Claims Assessment and Resolution Service are dealt with in that court.
Given unlimited jurisdiction, I am satisfied that these proceedings could properly have been commenced in the District Court.
It is common ground between the parties that, in addition to this claim brought on behalf of the injured person, there are two claims pending in the District Court for nervous shock brought by each of his parents. One ground on which the defendant moves is that, manifestly, the cases involve a common and difficult liability issue which should be heard and determined concurrently. The plaintiff agrees, but says the parents' claims should be transferred to this Court to be heard concurrently with the plaintiff's claim in this Court. No summons has been filed in either of those cases seeking transfer under s 140 of the Civil Procedure Act.
Under s 146(4), proceedings of this type must be transferred to the District Court unless I am satisfied that the plaintiff's damages if successful are likely to exceed $1 million, and the case involves complex legal issues or issues of general public importance: Barden v Seric [2012] NSWSC 1480 at [6] and [22] to [23] by RA Hulme J.
There is no real issue before me that, if successful, the plaintiff's damages are likely to be assessed in a sum greater than $1 million. As I have said, his damages are restricted to two heads of damages, but his catastrophic injury is such, having regard to his comparative youth (he was born in 1982), that damages for non-economic loss are likely to be assessed at or close to the statutory maximum, which currently is over $500,000. Moreover, although there is no particular evidence of it, Mr Ryan of counsel, who appears for the defendant, properly concedes that, again, having regard to his youth and the consideration that the plaintiff was a university-qualified professional working in 3D graphic design in the entertainment industry, damages for economic loss, especially as there is no dispute that he is totally incapacitated and unlikely to ever improve, will easily exceed the sum of one half of one million dollars.
Mr Robison of counsel, who appears for the plaintiff, has handed up a schedule of damages, which he acknowledges must necessarily be impressionistic and speculative at this early stage, totalling $3.6 million.
I am satisfied that, if successful, damages are likely to exceed $1 million.
That brings me then to the second consideration, which is whether the case involves complex legal issues or issues of general public importance. Mr Robison does not rely upon the second alternative; his focus was upon complex legal issues.
I should interpolate that an issue has been debated before me of who bears the onus of satisfying the Court of the existence of the mandatory considerations in s 146(4). Mr Ryan says that the maxim "he who asserts must prove" makes it clear that the party who wishes to maintain the proceedings in this Court must engage the mandatory requirements of s 146(4)(a).
Mr Robison contends that the onus remains at all times on the moving party. He argues that as the defendant wishes to persuade the Court that the proceedings should be transferred, part of that burden of persuasion involves proving the negative, that is to say that the mandatory considerations are not engaged.
In my view, the onus lies upon the plaintiff in this case, as the party asserting that the proceedings should be maintained in this Court. The persuasive onus lies upon the plaintiff of otherwise making out the grounds for transfer under s 146. But that the opposing party must prove the exception affirmatively, that is to say, must prove the mandatory considerations expressed in para (a) exist in this case.
Mr Robison has pointed to a number of factors. The first factor which he refers to is the difficulty of identifying whether or not complex legal issues arise in circumstances where the defendant has not filed its defence. I must say it is somewhat unsatisfactory, as Mr Ryan concedes, that where a statement of claim was filed as long ago as 27 November 2015, the defendant has failed to file its defence. The explanation offered is that the plaintiff has not complied with the rules by filing a statement of particulars as is required in personal injuries cases and, in those circumstances, the defendant is not obliged to plead to the statement of claim.
I am of the view that that is not correct. It is not the practice in New South Wales to plead to matters that go solely to damages, and it is certainly not the practice in New South Wales to plead to particulars. The defendant should have filed its defence within the time permitted by the rules. This is especially so in motor accident claims, which are dealt with extensively by way of pre-litigation requirements of a mandatory nature before plaintiffs are entitled to commence proceedings. There is no issue here that the defendant's insurer has denied all liability under the provisions of s 81 of the Motor Accidents Compensation Act 1999 (NSW). In those circumstances, there should have been little difficulty in obtaining instructions as to the issues which arise on liability.
As Basten JA pointed out in his concurring judgment in Sangha v Baxter [2009] NSWCA 78; 52 MVR 492, complex legal issues can arise in motor accidents cases, not least because of the interplay between the motor accidents legislation and the provisions of the Civil Liability Act 2002.
The facts in this case are in some respects very unusual. On one view of the material which has been put before the Court, the plaintiff, during an argument with his wife who was driving, stepped out of the car at a speed of about 60 kilometres per hour. Certainly in those circumstances one could well understand the catastrophic severity of his injuries. If those are the facts established to the satisfaction of a judge at a hearing, the plaintiff's difficulties in proving negligence are obvious. On another version, the car may have been brought, or nearly, to a halt and, as the plaintiff alighted, sped off again, throwing him to the bituminous carriageway. If that version is accepted, the negligence is obvious.
However, on either version, it is not obvious to me that any specific defence under the provisions of the Civil Liability Act is likely to arise even though the negligence issues will be determined by application of its provisions. It may be, for instance, when a defence is filed, that the defendant will plead the modified volenti non fit injuria defence which arises under s 5G of the Act. But in the absence of a defence, it is difficult to say. It may be that such an issue would involve some complexity, but the complexity seems more factual than legal.
Other issues that Mr Robison has raised in his careful oral submission relate, as I see it, to the difficulties of proof which almost always arises in presenting contested personal injury claims for persons with severe acquired brain injury, who, like the plaintiff, have no recollection or perhaps no reliable recollection of the events giving rise to the case.
There are additional difficulties in this case. It seems apparent on the material that Mr Robison has taken me to that the plaintiff's and defendant's two children were passengers in the car. At least one of those children may have been a witness to the accident, that is, the plaintiff's daughter, who was then a young girl of about six years of age. She has given accounts to, for instance, the social worker at the hospital where her father was treated. Cases with children as witnesses may involve evidential difficulties and, to some extent, a complexity of proof. But, with great respect, I am not satisfied that those difficulties are properly described as complex legal issues.
Mr Robison also referred to the complexity of calculation of the plaintiff's claim for, particularly, future economic loss. As I have said, he was a university educated professional working in television and film production. At the age of 33, as he then was when the accident occurred, he probably had not fully realised his economic potential. From the material in evidence, it is apparent that he comes from a business background. His mother was an entrepreneur in Korea and his brother is also a professional in that country, working as a doctor. The case to be presented on his behalf will be that he probably would not have remained an employee but would have branched out on his own, either as a freelance professional or perhaps - it is early days in the case yet - in his own production company. Mr Robison pointed out that it may be necessary to call a number of witnesses from the industry in an attempt to prove his potential and that such matters would give rise to complexity under s 126 of the motor accidents legislation.
I should say that such matters are not entirely unfamiliar to practitioners and judges with experience in the personal injuries area, including the motor accidents area, as the decision of the Court of Appeal in Norris v Blake (No 2) (1997) 41 NSWLR 49 illustrates. Doubtless again, as the circumstances of that case illustrate, which may provide some analogy with the present, questions of great factual complexity are likely to arise. However, notwithstanding the frequency with which the Court of Appeal has had occasion to expound the requirements of s 126, I find it difficult to conceive of the potential complexity as a legal rather than a factual issue.
I need to say that motor accident cases are not infrequently heard in this Court. Not infrequently, such cases do give rise to complex legal issues. One should not assume that this Court is reluctant to exercise its jurisdiction in relation to such matters. However, it should be said that the District Court of New South Wales is the natural forum for motor vehicle accident claims given the intention of Parliament expressed in the provisions of the District Court Act 1973 (NSW), which confer unlimited jurisdiction upon that Court in such matters (s 44(1)(d)), bolstered by s 140(3) and 146(4) of the Civil Procedure Act. Generally speaking, the judges of the District Court have great experience and expertise in such matters, given the volume of cases with which they deal. Moreover, the case management procedures routinely adopted in that Court are perhaps more straightforward than those followed in this Court, which often means that cases can be brought to trial somewhat more quickly, and disposed of in the same way, than may occur under the more exacting procedures in the Common Law Division. Having said that, given the obvious factual complexities, and difficulties of proof, in this case, it is unlikely that the matter could be fast-tracked to an early hearing date.
As well as the argument was presented, I am not satisfied that the matter involves complex legal issues as opposed to complex issues of fact and of proof. Those complex issues of fact and proof are the daily fare of judges in New South Wales, whether in this Court or in the District Court. I am satisfied that the defendant has shown that this case should be transferred to the District Court of New South Wales, where it can be heard with the two related matters.
1. I order under s 146 Civil Procedure Act 2005 that case number 2015/00349365 is transferred to the District Court of New South Wales.
2. The defendant's costs of the application are costs in the cause.
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Decision last updated: 14 April 2016