Moriarty v Department of Education [2019] NSWDC 950 | Case summary

Moriarty v Department of Education [2019] NSWDC 950 | Case summary | Zoe

C. THE WEAKNESS OF THE CASE

The weakness of the case may be a relevant matter in the exercise of discretion. [1] The evidence on the application contained accounts of Ms Moriarty and another teacher at the school, Ida Consalvo. Resolution of the differences in their accounts may be important at trial, but it is unnecessary that I resolve that matter, in large part because the Department asserts that the plaintiff's case is weak even if the matters asserted in the statement of claim are proved. The Department did not assert that there was no evidence of the matters in the statement of claim.
The statement of claim alleges the following matters. Ms Moriarty was employed as a teacher's aide assisting a year 7 student. That student, called ME in the statement of claim, was participating in a sports session that involved playing a game of soccer on the sports oval. Ms Moriarty's duties did not require her to supervise ME in a sports session. Two supervising teachers were assigned, although neither had training in coaching soccer, or refereeing or supervising a soccer game. The sports session also involved older students, including DJ, who was in year 11. DJ had a history of aggressive behaviour towards students and staff and the Department knew or ought to have known of DJ's aggressive behaviour. During the sports session, the supervising teachers sat under a tree near the sports oval and neither actively supervised the sports session. At 1.30pm, Ms Moriarty observed DJ yelling at, bullying, and harassing younger students, including ME. He yelled obscene and offensive words at ME, including "Fg c" (form in original). Neither supervising teacher did anything in response, even though they were aware of ME's disabilities, including his difficulty coping in environments involving "loud/aggressive behaviour, including swearing". Ms Moriarty asserts she spoke to DJ directly about his language to prevent further abuse of ME, and in response DJ spoke to Ms Moriarty, saying, "f* off". Ms Moriarty informed both supervising teachers of what had occurred, but the supervising teachers did not move from sitting under the tree and took no positive action to supervise the sports session, remove ME or DJ from the sports session, or abide by the Department's code of practice. The sports session continued with ME participating, DJ glaring at Ms Moriarty and appearing to be annoyed and angry, whilst Ms Moriarty watched the activities of ME. At about 2.30pm, Ms Moriarty was struck by a soccer ball in the back of the head, which she asserts was kicked by DJ, who thereafter said to her, "You should have ducked".
As a consequence of the incident, Ms Moriarty had two spinal fusion operations: on 22 January 2013 she underwent a C4/5 and a C5/6 anterior discectomy with cages and anterior cervical plate bulging between the C4-C6 levels; on 6 May 2016 she underwent a posterior fusion at Norwest Private Hospital.
The negligence is particularised in detail in the statement of claim, but principally appears to be an alleged failure to supervise properly the sports session, including the conduct of DJ at the session. Ms Moriarty and the Department agreed on a lump sum worker's compensation payment based on 27% whole body impairment.
On the question of weakness of the plaintiff's case, the Department referred me to the decision of Gower v State of New South Wales [2018] NSWCA 132. While Mr Gower's case has some factual similarities with Ms Moriarty's claim in that he was a casual teacher struck by a soccer ball at school, there are differences. In Mr Gower's case, he was struck in the face, not in the back of the head, the ball was thrown, not kicked, he received a broken nose and psychiatric damage, not serious spinal damage, and he ultimately was assessed at 15% whole person impairment some 11 years after the incident, not 27% some 3 years after the incident as occurred with Ms Moriarty.
Two of the appeal judges in Gower appear to accept that the plaintiff's case there was "not strong", [2] or weak, [3] though without providing detailed reasons. [4] The third judge of appeal, White JA, explained how one assertion of Mr Gower as to the existence of a policy that the soccer balls were not to be used except at lunch was not sufficiently particularised in the statement of claim to identify the alleged negligence, be it a failure to enforce the policy, or a failure to inform Mr Gower of the policy, [5] or something else, and that there was an absence of evidence on this issue disclosed in the pre-filing statement. [6] These matters caused his Honour to state that the case "appears weak". [7] White JA also considered a second assertion concerning an obligation on the Department to protect Mr Gower from "stress arising from contact with ill-disciplined adolescents". [8] His Honour referred to the general way the statement of claim was pleaded and other matters and held that "prima facie, it is a weak claim" [9] even though it raised a real issue of fact to be determined and could not be summarily dismissed.
Neither of these criticised assertions of Mr Gower form part of Ms Moriarty's case. Rather, the central aspect of her case appears to be whether there was any appropriate supervision of the sports session, whether appropriate supervision would have resulted in DJ being excluded from the soccer game or would otherwise have tempered his aggression, and whether appropriate supervision would have alerted Ms Moriarty to the impending danger of a kicked soccer ball. The cases are quite different, despite some factual similarities.
I return to make some brief comments about the evidence mentioned earlier. The Department referred to two statements of evidence, one of a supervising teacher, Ms Consalvo, and one of the principal. I could not conclude weakness in the case on the basis of the brief statement Ms Consalvo made five years after the event that conflicts with the plaintiff's account. At least I should not do so when the Department's argument is that the statement of claim is weak on its face. The contest between the accounts would seem to be a matter for trial. The statement of the principal disputed knowledge of aggressive behaviour by DJ. It was not asserted that the principal observed the incident. Whether the principal is the sole repository of the relevant knowledge of the Department, and the extent to which her evidence will be contested is again a matter, it seems, for trial if leave is granted. Evidentiary contests, without more, do not establish a weak case. In all these circumstances, I am not satisfied that Ms Moriarty's case is weak.
For these reasons, I regard the claim pleaded as a reasonably arguable claim of negligence. Liability is in issue and might be expected to be strongly contested. But the statement of claim on its face does not establish that Ms Moriarty's case is weak, and contested evidence cannot fairly be resolved on this application.

[4]

D. THE LAPSE OF TIME

Proceedings were not commenced by Ms Moriarty until 26 November 2018, some six and a half years after the incident occurred. However, the Department accepted that, largely, time did not run from the date of filing of an initial pre-filing statement on 9 October 2017, some five and a half years after the incident. Further, there were other periods when time did not run: some two months after the filing of s 281 particulars, and for about five months in 2014, when there was a dispute between the parties about the level of whole body impairment. In the result, the parties agreed that the period of delay was approximately two years beyond the three-year period allowed in s 151D.
The length of delay is a relevant, indeed significant, factor in determining whether leave to commence proceedings ought to be granted. Two years is a significant period. Whilst it is not a period similar to that which occurred in Gower, where proceedings were commenced some 14 years after the incident, it is a period of sufficient significance that it calls for an explanation as to why it occurred.
The Department disavowed any assertion that actual prejudice was occasioned by the delay. That does not remove the presumption that delay will be adverse to the interests of a fair trial, or that there is some presumptive prejudice by reason of the delay. Memories are weakened, for example. On the other hand, I would not regard a two-year delay as a compelling factor against leave where no actual prejudice is alleged.
Part of the reason for an absence of prejudice is the relatively early notice given by Ms Moriarty of the potential claim. On 18 March 2015, within the three-year period allowed for proceedings to be commenced, Ms Moriarty began the statutory procedural processes required to file a work injury damages claim. Her solicitors on that date served a s 282 Notice of Particulars on the Department's legal representatives. Those particulars gave details of the injuries suffered, the spinal operation that she had undergone by that date, and gave particulars of disability, of economic loss, and of negligence. Those particulars of negligence principally referred to the failure to supervise properly the sports session, as well as particulars of the negligence in relation to an aggravation of the injury that occurred some six months later and which was also ultimately pleaded in the statement of claim. Thus, the Department was put on notice of the claim prior to the expiration of the three-year period.
Accordingly, whilst the delay is significant, the consequences of the delay are mitigated by the early notice, as indicated by the Department's concession that no actual prejudice had occurred.

[5]

E. THE ELECTION NOT TO COMMENCE PROCEEDINGS

Ms Moriarty's solicitor, both in oral evidence and in his detailed explanatory affidavits, accepted that there was a delay of approximately two years from late 2015 until late 2017 as a result of his advice and decision not to commence proceedings in 2015. Of the period shortly after the service of the s 282 particulars, he deposed as follows: "19. On 26 May 2015, the Plaintiff had contacted me with notification that she has had worsening symptoms which has prompted her to return to the treating specialist, Dr Hsu. I was informed by the Plaintiff and verily believed that she was experiencing an increase in pain to her neck region, reduced mobility of the neck and numbness to her arms. The Plaintiff explained that the specialist had recommended further investigations as there was an indication of instability of the fusion region that was previously performed on 22 January 2015. 20. On 26 June 2015, Moray and Agnew Lawyers had issued a letter addressed to our office with notification that the claim had been declined pursuant to Section 74 of the 1998 Act. Enclosed within the letter of Moray and Agnew Lawyers was the Section 74 Notice from Allianz Australia Workers Compensation dated 24 June 2015… 21. On 13 July 2015, the Plaintiff had contacted me to inform me of which I verily believe that Dr Hsu had recommended a cortisone injection to the C3 level, in order to isolate where the problem is stemming from. 22. On 15 September 2015, the Plaintiff had contacted me to provide further updates in relation to treatment. The Plaintiff did indicate that she was undergoing further cortisone injections and was not sure whether further surgery will be recommended. 23. On 22 October 2015, the Plaintiff contacted our office again with an update in relation to treatment and proposals by the treating surgeon. The Plaintiff had informed our office that the surgeon had recommended further fusion to her neck and that she will now be planning to have the surgery. 24. On 23 December 2015, the Plaintiff had once again contacted our office to inform us that surgery will be taking place in February/March 2016, which involves a posterior fusion. The Plaintiff also informed our office that the surgical procedure had been approved by the workers compensation insurer. 25. Noting that the Plaintiff was to undergo further surgery, I had elected to postpone proceedings of the Work Injury Damages claim in order to allow her to undergo the further surgery. I had made that decision which I truly believe was in the best interest for the Plaintiff. I did not want to jeopardise her entitlements for medical treatment which was payable by the insurer. This included the cost of surgery and the subsequent rehabilitation. Further, her level of impairment and incapacity would seemingly alter due to this further surgical procedure. 26. In postponing the processes of the Work Injury Damages claim, I felt this would also give the Plaintiff the opportunity to reconsider whether it would be in her best interest to proceed with the claim or otherwise retain her statutory entitlements. 27. On 6 May 2016, the Plaintiff did have further surgery which again was performed by Dr Hsu at the Norwest Private Hospital. On this occasion, the workers compensation insurer funded the surgical procedure which involved a posterior fusion of the C3/C4, C4/C5 and C6 levels. She remained in hospital until she was transferred to The Hills Rehabilitation Hospital on 10 May 2016, undergoing rehabilitation until her final discharge on 19 May 2016. 28. Following the surgical procedure, the Plaintiff developed a severe infection to the operation site. The problem had become increasingly worse causing her to be readmitted to hospital. 29. On 26 May 2016 the Plaintiff was re-admitted to hospital and further surgery was performed by Dr Hsu to clean out the wound on the operation site. The Plaintiff was also placed on an IV anti-biotic drip. 30. On 30 May 2016, the Plaintiff was eventually discharged from hospital. 31. The Plaintiff's recovery was relatively slow and she continued with rehabilitation as an out-patient of The Hills Private Hospital until 6 September 2016. 32. I had allowed the Plaintiff sufficient time to complete rehabilitation and once again be stable for further medical assessments. 33. On 4 August 2017, I had directed for an appointment to be organised on behalf of the Plaintiff to see Occupational Physician, Dr Porteous. 34. On 24 August 2017, the Plaintiff was examined by Dr Porteous. 35. On 1 September 2017, our office was provided with the medical report of Dr Porteous dated 24 August 2017… 36. On 9 October 2017, a Pre-Filing Statement was served on the Defendant to initiate the process towards a mediation…" [10]
Thus, because of the further worsening of Ms Moriarty's condition from May 2015, and subsequent treatment, first with cortisone injections, then with posterior fusion surgery, and the subsequent infection and recovery, Ms Moriarty's solicitor elected to postpone the claim.
The Department referred me to the decision of Itek Graphix Pty Ltd v Elliott [2001] NSWCA 442. At [91], Ipp AJA, with whom the other members of the Court agreed, stated: "A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave."
Ms Moriarty, through her counsel, submitted that there was no deliberate decision by Ms Moriarty to allow the limitation period to expire. Rather, the limitation had earlier expired while the procedural prerequisites were being satisfied. Given that s 151D postpones the expiration of the period for two months following the service of the s 281 particulars, the factual accuracy of this assertion may be doubted. But, in any event, I do not think this is a cogent answer. Whether the solicitor has countenanced a significant delay that commences before the end of the limitation period or if the significant delay commences shortly after the limitation period has expired, both are weighty matters that militate against a grant of leave, and must be satisfactorily explained.
Ms Moriarty attributed this delay to the decision of her solicitor. There is no evidence to the contrary. Nor is there evidence to support this assertion. There was no evidence at all from Ms Moriarty directly and, in particular, no evidence that she was unaware of the decision. There was no evidence explaining why Ms Moriarty was unable to give evidence about her knowledge or lack of it. I would not draw an inference in her favour that she was unaware of her solicitor's decision to postpone proceedings in the absence of evidence from her, or at least an explanation for her lack of evidence.
Thus, the real question on this issue is whether the worsening of the plaintiff's condition, and the need for further treatment and operations, is a sufficient answer to explain the delay from late 2015 to late 2017.
The Department accepted that the need for further operations is a satisfactory reason to postpone judgment in a work injury damages claim. The damages awarded in such a judgment are only for loss of past earnings and lost future earning capacity, and do not include compensation for future medical expenses. Workers compensation entitlements, including medical expenses, cease upon a work injury damages judgment. Accordingly, there is a financial incentive for a claimant to finalise all major medical expenses prior to judgment in a work injury damages claim, so as to enable the medical expenses to be met by workers compensation entitlements. Thus, in Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 at [60], a condition that "had not stabilised but was getting worse" was a relevant matter in a grant of leave.
The Department submitted that other litigation procedures were available: Ms Moriarty could have served the pre-filing statement in 2015 which would have operated to stop time running or she could have commenced proceedings but sought to have them placed in the inactive list until her condition stabilised.
I accept that these were avenues available to accommodate the tension between the expiring limitation period and the loss of an entitlement to the cost of future significant medical treatment and operations upon judgment. But the differences between these procedures on the one hand, and the procedure adopted of giving the Department notice but postponing the pre-filing statement or commencement of proceedings until Ms Moriarty's condition had stabilised on the other hand, are largely differences of form rather than substance. The notice was effective to preclude actual prejudice. And a premature commencement of proceedings would likely result in costs for both parties, which would be wasted if a decision not to continue was ultimately made because of the outcome of an operation.
In my view, in the circumstances of this case, the explanation of Ms Moriarty's solicitor satisfactorily explains the decision to postpone commencement. His decision to postpone commencement should not, in my view, be regarded here as a bar to a grant of leave. I regard the circumstance of giving notice of the claim, and the postponing of the commencement of proceedings until after a further significant and necessary operation had been undertaken and stabilised, to have been sufficiently cogently explained to satisfy the passage in Itek at [91] quoted earlier.
I also take into account that Ms Moriarty has had two substantial spinal operations causing 27% whole body impairment, which are likely to have had a substantial effect on her earning capacity. If she is ultimately found to have a proper claim for these damages, the circumstances of a period of delay that did not produce any actual prejudice seems not to outweigh the interest in her having her claim tried on its merits.
The Department also submitted that the later operation did not affect Ms Moriarty's ability to bring proceedings, since she exceeded the 15% threshold of whole person impairment prior to the expiration of the limitation period. Whilst that is so, the prospect of the further operation and with it, further loss of earnings, and an increased, or decreased, loss of earning capacity must impact on the economic incentive to bring a work injury damages claim. I do not regard the course adopted to wait until her condition had stabilised as an unreasonable one.
In Gower, Basten JA stated [11] that the grant of leave requires the claimant to provide a sufficient and acceptable explanation for the delay, a reasonably arguable claim of negligence, and that a fair trial was not prejudiced by the delay. Each of these matters is present here. The other judge of appeal in the majority in Gower, White JA, identified the apparent weakness of the plaintiff's case, the prejudice arising from the delay, and the absence of any earlier notice of intention to make a work injury damages claim as factors important in refusing a grant of leave. [12] None of these factors are present in Ms Moriarty's application.
For all of these reasons, I am of the view that leave under s 151D should be granted.

Moriarty v Department of Education

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