Undoubtedly, this is a work injury damages claim.
9 An adjournment was then taken to give counsel an opportunity to consider the question of whether this Court could be satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000.
10 Upon the matter resuming, counsel for the claimant referred to the report of Dr Patrick of 15 December 2003, particularly that part where the opinion is expressed on re-examination of the claimant on 11 December 2003.
"Re-examination of Mr Brian Middleton on 11 December 2003 does not cause me to significantly alter my opinion as expressed on the final page (page 3) of my report to you of 28 January 2002 - except with regard to assessment.
Since last seen, there has been a period about the time of further block injection treatments where there has been significant improvement in his symptomatology, to the point where he felt that complete resolution of symptoms was likely. Since that time however, he has gone backwards somewhat, with worsening of left upper limb symptoms and development of some low back symptoms going into the left lower limb as described. The situation clinically at the left arm is consistent with a severe reflex sympathetic dystrophy syndrome (complex regional pain syndrome type 1), with some 'shoulder/hand syndrome', the whole situation being compounded by either voluntary, or involuntary disuse of the left arm - probably the latter, as a result of his significant symptomatology/allodynia.
I believe Mr Middleton does require further investigation (not for purposes of assessment) to exclude systemic condition, and it would be reasonable, I believe to proceed to MR Imaging of the brain, and MRI full spine, and also blood tests, including thyroid function tests - full blood count - electrolytes, urea, creatinine, liver function tests, IIV, rheumatoid factor, ANA etc.
As he presents, Mr Brian Middleton is effectively incapacitated for all work, and he may be regarded as having permanent ongoing partial work incapacity in that he is not fit to carry out work involving the physical use of the left arm or hand.
Following re-examination of him, in my opinion, Mr Brian Middleton has a permanent loss of efficient use of the left arm at or above the elbow, including loss of use below the elbow, of 50%."
11 In addition, counsel for the claimant, without objection, tendered to the Court a document prepared by him and headed "Plaintiff's schedule of damages" (Exhibit A). Counsel explained how the figures in that schedule were arrived at. The amount of anticipated recovery was calculated at $1,183,716. On the basis of that material, I am satisfied that the amount to be awarded to the plaintiff, if successful, would be likely to exceed $1,000,000. I am also satisfied that this is a case which involved what could be described as a complex legal issue in the sense that it gave rise to an issue about which an experienced judge in the District Court felt great difficulty. As a result an attempt was made to bring the matter before the Court of Appeal in the manner I have described.
12 In all these circumstances, I am satisfied that pursuant to s145(3) of the District Court Act it is appropriate that this Court order that the action be removed into the Supreme Court for hearing by the Supreme Court. That leaves it for the Supreme Court to determine what consequence follows from the filing by the plaintiff of the notice of discontinuance.
13 I note the agreement of the opponent that if the application for the matter to proceed succeeds, despite the notice of discontinuance, or the notice of discontinuance is rescinded or set aside, and, the necessary medical examination by the opponent's medical advisers is obtained, the matter will, by consent, proceed to mediation. Of course, depending upon the result of that, the proceedings will then either not go ahead or go ahead.
14 There remains only the question of costs of today's application. The opponent has pointed out that the application was ill conceived, and on that basis submits that the claimant should pay the opponent's costs. Unfortunately the matter has proceeded in the way it has because the application to reinstate the proceedings was not determined in the District Court.
15 Bearing that in mind, and bearing in mind the result that has been achieved today, as a result of the great assistance that the Court has received from counsel on both sides, no doubt supported by their solicitors and clients, I think it appropriate that the costs of today should be costs on the hearing of the motion in the Supreme Court.
16 Therefore, the order the Court now makes is that these proceedings be removed into the Supreme Court and that the costs of today be the costs in the application before the Supreme Court to set aside the notice of discontinuance. The orders of the Court will be as I have announced them.
17 SANTOW JA: I agree.
18 PEARLMAN AJA: I also agree.
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