Mody v South Seas Cruises Limited & Anor [2008] NSWSC 1261 | Case summary

1 HIS HONOUR: This is an application under Pt 12 r 11 of the Uniform Civil Procedure Rules 2005 for an order declining to exercise jurisdiction in proceedings commenced in this Court by the plaintiff. Such an order may be made where, under Pt 11 r 7(b), the Court considers that it is an inappropriate forum for the trial of the proceedings. 2 The plaintiff, resident in New South Wales, was allegedly injured in February 2006 during a family holiday in Fiji. Whilst on a day cruise operated by the defendants, it is alleged that a drink bottle was placed by one of the defendant's employees near to his own drink bottle when he was eating his lunch. This bottle was unlabelled. As it happened, it was being used for cleaning and contained an extremely dangerous and caustic liquid. The plaintiff drank from the bottle, thinking that it contained water, and suffered from serious burns to his mouth, throat, oesophagus and stomach. He was treated as an emergency patient in a Fijian hospital and then transferred to Sydney, where treatment continued. 3 The plaintiff has sued in this Court. The defendant seeks a stay upon the ground, as I have mentioned, that this Court is a clearly inappropriate forum. Initially I took comfort from the observation in at 565, by Mason CJ and Deane, Dawson and Gaudron JJ: "...in the ordinary case, counsel should be able to furnish the primary Judge with any necessary assistance by a short, written, (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary Judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors, and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily however it will be unnecessary for the primary Judge to do more than briefly indicate that, having examined the material in evidence and having taken into account competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. clearly inappropriate forum) grounds." 4 Perhaps overcaution and a certain natural conservatism leads me to accept the submissions of both counsel that I ought nevertheless to state, though briefly, the particular matters on which I have relied to determine the application. 5 First of all, there can be little doubt that the question of the negligence or otherwise of the defendants will be determined by Fijian law. It is not suggested, however, that Fijian law would bring about any outcome different from that which would follow from applying the law in New South Wales. The physical circumstances of the incident itself, and the plaintiff's initial treatment, as I have already mentioned, occurred in Fiji. This is a natural connection with the jurisdiction of the Fijian courts. 6 The plaintiff is entitled to sue in this Court because his injuries, and the damage, continue and are at a very substantial level, causing not only very great pain and suffering but significant incapacity, at times total. 7 The defendant points to the necessity, as it apprehends the issues, to lead evidence from members of the crew as to what occurred and perhaps as to the system of work organised at a management level. On the other hand, the plaintiff has been treated in hospitals in Sydney by a succession of doctors including, of course, his treating surgeon. 8 A medical report from the plaintiff's treating gastroenterologist shows the extent of the plaintiff's severe injuries, and the need for continuing treatment and careful monitoring. He has an ongoing disability relating to a stricture in his oesophagus which has required and will require serial but, as I apprehend it, somewhat unpredictable dilatation. His normal upper gastroenterological anatomy is now markedly altered with surgery, and it is likely that he will have recurrent stricture at the anastomotic site on a long-term basis. The method used to deal with the strictures has involved the use of an oesophageal stent being placed after CRE balloon dilatations. This has been necessary six times before April 2007 (the date of the medical report) but almost certainly a number of times since then. The stents inserted from time to time have not stayed in situ, and move unpredictably. 9 Although it is not expressly stated, because the medical report is aimed at different questions, I would infer as a matter of common sense that it would be most unwise for the plaintiff to travel to Fiji and remain there for any length of time, away from his specialist medical care. This is not to criticise the standard of medical assistance available in Fiji but common sense strongly suggests where there has been continuing intervention of the substantial kind described in the doctor's report, further interventions are best deal with by the medical team which has assisted him thus far. Whether or not this is so, the defendants bear the onus on significant matters of fact to persuade me at least by way of an evidentiary burden that the orders sought are justified in the appropriate sense and, in this respect, that if the plaintiff's attendance at trial is desirable in the interests of justice, that it is reasonable for him to travel to Fiji for that purpose. 10 Considering the likely issues in the trial, which necessarily at this time can only be tentatively stated, there is unlikely I think to be a significant issue about causation as a practical matter. A major issue in the case will be the extent and economic consequences of future incapacity in the context of a dynamic disabling injury. 11 The assessment of incapacity in a damages claim is relatively simple where the incapacity is total. Where however it is partial it is very much a question of weighing up varying relevant factors necessarily involving, in a case such as this, significant uncertainty and a range of arguably reasonable economic outcomes. Here, the relevant context is in capacity for the purposes of working in, if not New South Wales, Australia. Tribunals of fact approach such questions by bringing to bear a history of judgment and experience in the particular environment. Although intangible, this ability is of considerable significance and as a practical matter may well prove decisive. This factor weights significantly in favour of trial in this Court. Mr Habib of counsel for the defendants has candidly conceded that I should approach the case upon the basis that there will be an issue as to the extent and significance of the plaintiff's future incapacity. This is, if I might say so, a commonsense concession. 12 Approaching the matter as a counsel might at this time, I think such counsel would be relatively untroubled by the problems of duty of care and causation although of course they would need to be addressed in the evidence. Counsel would focus as a major arena for controversy on the continuing incapacity point. I have descended to his level of analysis in an attempt to determine whether the defendants have persuaded me that this forum is clearly inappropriate forum for determination of the issues at trial. 13 Of course, the considerations which I have mentioned are not the only ones. I should mention also that this is a case, as it seems to me, in which personal attendance of almost all the witnesses is not essential. I am informed that video communication is available in Fiji, as indeed it is here, and geographical distance is therefore, in respect of those witnesses, not significant. 14 The plaintiff is, however, not only a witness. He is a party. It seems to me that this is a case in which personal attendance of the plaintiff at the trial is essential to a fair trial at least desirable in the interests of justice, and his absence from the trial would constitute a difficult and inconvenient handicap in his undertaking the proceedings. I do not under estimate the importance of the presence of someone from the defendants - and I note there is one personal defendant although it is difficult to see why he is joined - being present at the trial, but it is most unlikely that someone personally acquainted with more than the actual incident itself would be in attendance. As I have already said, I think the evidentiary problems surrounding that matter are unlikely to be the focus of the case. If I am right about the necessity for personal attendance by the plaintiff at the trial, and about the medical difficulties that are likely to attend his travelling to Fiji, that would show that the geography involved in the case decisively weighs against granting the defendants' application. Even if this were not decisive but simply one of the material factors to be borne in mind, the other matters which I have mentioned, in particular the need to assess damages for future incapacity, not only demonstrate that this Court is not clearly an inappropriate forum but, to the contrary, suggests that it is the appropriate forum. 15 However, I do not need to go that far. As is made clear in Voth, the test is whether the defendants can show that this Court is a clearly inappropriate forum for the trial. Mr Habib on behalf of the defendants reasonably points to the fact that the tort occurred in Fiji, that it was committed, if at all, by Fijians on a Fijian vessel and that the courts in Fiji are able to determine the issue in accordance with the law of Fiji which is not suggested differs from that in this State. I bear in mind that it is not necessary for the defendants to show that conduct of the proceedings in this court will be oppressive or vexatious in the strict sense. Indeed, if this Court were a clearly inappropriate forum, in the absence of exceptional circumstances being established by the plaintiff, the proceedings would be oppressive or vexatious to them if there were, as is the case here, an available and appropriate tribunal in Fiji: see Oceanic Sun Line Special Shipping Co Inc v Fay 165 CLR 197 per Deane J at 248). In Voth the majority judgment referred to Deane J's conclusion that a defendant would discharge the onus of proof if he established that the local court is a clearly inappropriate forum so that the continuation of proceedings in that forum would therefore be oppressive or vexatious: see Voth at 556). This is not to say that the notions underlying the description of oppressive or vexatious proceedings are immaterial. Indeed in Regie National des Usines Renault SA v Zang (2002) 210 CLR 491 at 521 the Court stated the test, citing Voth as follows: "...it was not a question of striking a balance between competing considerations. Rather it was the task of the Reno companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive of serious and unjustified trouble and harassment." 16 The mere fact therefore that the tort occurs in the other jurisdiction, where the defendants' witnesses reside and is to be determined by the law of that other jurisdiction may well not, of itself, mean that conducting the case in the local jurisdiction is unjust, or that, to apply the proper test, to do so is clearly inappropriate. 17 I should mention briefly the possible consequences of the applicable conventions that affect the award of damages in cases such as this. There are two possibly applicable conventions. The first is the Limitation of Liability Convention of 10 October 1957 which is part of the law of Fiji, and the second is the Convention on Limitation of Liability for Marine Claims 1976, which applies in Australia. It is a difficult question whether the limitations imposed by these conventions are procedural or substantive. It has been held in England that they are procedural (see Caltex Singapore Pty Limited v BP Shipping Limited (1996) 1 Lloyds Law Reports at 286), whilst there are suggestions in high Australian authority that it is substantive rather than procedural (see for example Garsec Pty Limited v His Majesty the Sultan of Brunei [2008] NSWCA 211). 18 I have not found it necessary to consider this question since it is obvious that, on whatever outcome, the relative advantage or disadvantage to the parties is immaterial for present purposes. The only possible materiality is that the earlier Convention imposes a limit which might, though not necessarily would, be exceeded if the Convention did not apply, unless the plaintiff were able to prove "actual fault or privity" in the defendants. This might expand to some extent the factual issues concerning causation and hence make that aspect of the case more important than otherwise. 19 Weighing these considerations, and bearing in mind that the mere fact that the plaintiff happens to be in this State and this is where his injuries continue is a matter of relatively slight importance, the defendants have failed to persuade me that this Court is a clearly inappropriate forum for this trial. 20 Accordingly the notice of motion is dismissed with costs. I direct the first defendant to file and serve a defence on or before 15 December 2008.

Mody v South Seas Cruises Limited & Anor

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