RICHARDS v CORNFORD

Civil Procedure Act 2005 (NSW), 23 LEGISLATION CITED: District Court Act 1973 (NSW), ss 4, 44, 49, 50, 51, 76 Uniform Civil Procedure Rules 2005 (NSW), r 14.13, Pt 14

Bebe v Woolworths Ltd (unrep, 11 July 2008) CASES CITED: Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Nichols v Patrick Stevedoring Co Pty Ltd [1979] 2 NSWLR 457 Woodward Pty Ltd v Kelleher [1989] NSWCA 82

Danielle Richards (Appellant) PARTIES: Ian Cornford (First Respondent) Taringha House Pty Ltd (Second Respondent) QBE Insurance (Australia) Ltd (Third Respondent)

Ms S Norton SC/Mr M Daley (Appellant) COUNSEL: Mr J E Rowe (First and Second Respondents) Mr S G Campbell SC/Mr J G Stewart (Third Respondent)

Brydens Law Office (Appellant) SOLICITORS: John Carmody & Co (First and Second Respondents) A R Conolly & Company (Third Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT MEDIUM NEUTRAL CITATION: Richards v Cornford [2009] NSWDC 60

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298373 DC 4344/2005

ALLSOP ACJ McCOLL JA BASTEN JA

10 May 2010 Danielle RICHARDS v Ian CORNFORD Headnote

Danielle Richards applied for a position as a truck driver with Taringha House Pty Ltd. By way of undertaking a "work trial" on 2 August 2004, she accompanied Mr Cornford when he drove a truck on delivery rounds. Ms Richards offered to assist by operating the tailgate loader. When she was unloading a pallet, she was startled by a direction given by Mr Cornford and fell a distance of over 1 metre from the end of the tailgate loader to the ground thus injuring her right knee.

At trial, damages were assessed at $959,670, exceeding the District Court's jurisdictional limit of $750,000. Ms Richards argued that the amount claimed in her October 2005 statement of claim exceeded $750,000, and, as the defendants did not object three months prior to the trial, consent to extend the Court's jurisdiction to $1,125,000 was deemed to have been given. Murrell DCJ rejected this submission, and gave judgment in the sum of $772,818, that being $750,000 plus interest.

The question raised on appeal is whether judgment should have been given for the full amount of damages assessed, on the basis that the Court was not constrained in the circumstances by the jurisdictional limit. That required consideration of: (a) what were the necessary or permissible mechanisms by which a defendant was to be put on notice that the claimed amount exceeded the jurisdictional limit; and (b) did that occur at the relevant time in the present case.

1. The jurisdictional limit of the District Court does not prevent the Court from giving judgment for an amount in excess of the limit, but only prevents the claimant from recovering more than the limit, exclusive of costs and interest: [12].

2. When determining whether the defendant has notice of a claim in excess of the jurisdictional limit, consideration is not limited to what appears in the statement of claim: [17]-[31]

Nichols v Patrick Stevedoring Co Pty Ltd [1979] 2 NSWLR 457 referred to.

3. The question of whether a statement is clear enough in relation to the amount claimed is to be determined through the eyes of the defendants, their insurers, or their legal advisors depending on the circumstances; that is, a consideration of the probable effect on the statement on the intended reader. In the present case, the defendant's legal advisors should have known that the claim exceeded $750,000: [40]-[41].

Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 referred to.

4. The amount claimed in the particulars was in excess of $750,000: [32]-[38], [42].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298373 DC 4344/2005

ALLSOP ACJ McCOLL JA BASTEN JA

10 May 2010 Danielle RICHARDS v Ian CORNFORD Judgment 1 ALLSOP ACJ: I agree with Basten JA. 2 McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 3 BASTEN JA: This appeal concerns a short point of principle involving the monetary limit on the civil jurisdiction of the District Court. The appellant (who was the plaintiff in the District Court) obtained a judgment in her favour against the defendants (the present respondents), in negligence, with damages assessed at approximately $950,000 (without interest). That figure was significantly in excess of the jurisdictional limit of the Court, namely $750,000. The trial judge, Murrell DCJ, gave judgment for a sum equivalent to the jurisdictional limit of the Court, plus an amount on account of interest: Richards v Cornford [2009] NSWDC 60. The short point raised on the appeal is whether judgment should have been given for the full amount of damages assessed, on the basis that the Court was not constrained in the circumstances by the jurisdictional limit. 4 The relevant circumstance relied upon by the appellant was that she had made a claim in excess of the jurisdictional limit, to which the defendants were deemed to have consented, because they did not raise an objection to the Court's jurisdiction prior to three months before the trial of the action commenced. Because the trial commenced on 4 March 2009, the objection, to be effective, would have had to be made on or before 4 December 2008. The statement of claim, by which the appellant commenced the proceedings, was filed on 10 October 2005, a date treated as critical for identifying the relevant law. 5 The case raises two issues: first, the correct approach to determining whether the plaintiff did claim an amount which exceeded the jurisdictional limit of the Court, and, secondly, how that approach should be applied to the circumstances of the case. Jurisdictional limit: statutory provisions 6 The District Court of New South Wales has a civil jurisdiction limited by subject matter, geographical area and amount of claim. Accordingly, it has been described as having a qualified limited statutory jurisdiction: Woodward Pty Ltd v Kelleher [1989] NSWCA 82, (URJ, pp 2-3, Gleeson CJ, Samuels and Priestley JJA agreeing). The point of the qualification was that the jurisdictional limitation was not absolute, but was one which could be waived by the parties. The civil jurisdiction of the Court, relevantly for present purposes is defined in s 44 of the District Court Act 1973 (NSW), which reads as follows: " 44 Actions (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind: (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and (ii) in which the amount claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise, other than an action referred to in paragraph (d) or (e), … (d) any motor accident claim, irrespective of the amount claimed, (d1) any work injury damages claim, irrespective of the amount claimed, (e) any proceedings transferred to the Court under section 146 (1) of the Civil Procedure Act 2005 irrespective of the amount (if any) claimed in those proceedings. (2) Where the amount claimed in an action includes interest (being interest which the Court could, under section 100 (1) of the Civil Procedure Act 2005 , order to be included in the amount for which it could give judgment), that interest shall be disregarded for the purposes of: (a) determining whether the maximum amount for which the action is authorised by this Act to be brought has been exceeded or not, and (b) determining whether or not the Court has jurisdiction to hear and dispose of the action. (3) Where: (a) an amendment to subsection (1) … has … the effect of increasing the amount specified in paragraph (a) or (b) of that subsection, and (b) an action in which an amount of money is claimed is pending at the time when the amendment has effect … and has not been finally determined, the Court may, on the application of the claimant, make an order altering the amount specified in the claim to an amount not exceeding that specified in paragraph (a) or (b) of that subsection, as in force immediately after the amendment has or had effect." 7 A number of aspects of this provision may be noted. First, the term "jurisdictional limit", which appears in sub-s (1)(a)(ii) is defined to mean $750,000: s 4(1). Secondly, sub-s (1)(a)(ii) has since been amended, to insert in the phrase "the amount claimed" the words "(if any)". The effect of this amendment is not self-evident, but no reliance was placed on it during the appeal. Thirdly, as noted by counsel for the respondents, it is important to recall that the provision applies to the civil jurisdiction of the District Court generally and is not restricted to personal injury claims. In that respect, it may apply to both liquidated and unliquidated claims and different kinds of pleadings, in accordance with Pt 14 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). It would have work to do even if it were intended to apply only where a claim was made in a pleading which did (properly) state an amount, such as a liquidated claim for a debt. 8 Fourthly, and importantly for the purposes of the argument, sub-s (3) envisages that there is an "amount specified in the claim". As will be apparent from the terms of sub-ss (1) and (2), the section was amended at the time of the enactment of the Civil Procedure Act 2005 (NSW). Also contemporaneously, the UCPR came into operation, including r 14.13(1) which states: "A pleading must not claim an amount for unliquidated damages."

9 Prior to the commencement of the Civil Procedure Act, the District Court Act contained two further provisions relevant to its jurisdictional limit. First, s 49 (which is still in the Act) effectively prevents a claimant splitting a claim so as to bring only part of the claim within the Court's jurisdiction, while preserving the excess. Secondly, the District Court Act permitted a claim for an amount in excess of the jurisdictional limit to be brought, by allowing a plaintiff to abandon the excess. The relevant provision at that time (since repealed) was as follows: " 50 Abandonment A plaintiff who has a cause of action for more than the amount for which an action may be brought on that cause of action under this Act may abandon the excess by stating the abandonment in the document by the lodging of which an action is commenced on that cause of action, and where the abandonment is so stated: (a) the plaintiff's claim shall be reduced by the amount of the excess and the plaintiff shall, on proving his or her case, recover to an amount not exceeding the amount for which an action may be brought on that cause of action under this Act, (b) judgment in the action shall be in full discharge of all demands in respect of that cause of action, and (c) entry of the judgment in the records of the Court shall be made accordingly." 10 Section 50 of the District Court Act has now been replaced by the following provision in the Civil Procedure Act: " 23 Effect of abandoning excess claim (1) If, in any proceedings on a claim, the cause of action giving rise to the claim is for more than the court's jurisdictional limit: (a) the person may abandon the excess by a statement to that effect in the originating process, and (b) in that event, the person's claim is taken to be reduced by the amount of the excess. (2) If a person's claim is successful in respect of a cause of action: (a) the amount recoverable by the person (exclusive of costs and interest) is not to exceed the court's jurisdictional limit, and (b) the judgment in the proceedings is in full discharge of all of the person's demands in respect of that cause of action, and (c) entry of the judgment in the records of the court is to be made accordingly. (3) This section is subject to section 51 of the District Court Act 1973 and section 31 of the Local Court Act 2007 . Note. Under those sections, claims in the District Court or the Local Court for amounts in excess of the court's jurisdictional limit can, in some cases, be dealt with by consent of parties." 11 Subsections 23(1) and (2) have different operations. The former provides a procedure for limiting a claim by abandoning the excess; the latter limits the amount recoverable on a successful claim to the limit of the Court's jurisdiction and (consistently with s 50 of the District Court Act) provides that the judgment is in full discharge of the plaintiff's demands. It is possible sub-s (2)(a) is intended merely to reflect the effect of the abandonment provided for in sub-s (1); on the other hand, it could be read as envisaging that a judgment may be available for a greater amount than the claim and thus a greater amount than the jurisdictional limit. That possibility needs to be considered in the light of s 51, to which s 23 of the Civil Procedure Act is subject. 12 It is not in doubt that, even where the jurisdiction has not been expanded, the District Court has (and at all relevant times has had) the authority to give a judgment for an amount in excess of the jurisdictional limit. It may be for that reason that s 23(2) does not purport to constrain the power to give such a judgment, but prevents the claimant recovering more than the jurisdictional limit, exclusive of costs and interest. That may also explain the somewhat awkward grammatical construction of sub-s 23(1). The context demonstrates that the imposition of a jurisdictional limit by reference to the amount claimed must be understood in accordance with its purpose. On a literal reading, it might be thought that such a restriction imposes a fragile and uncertain limitation on the jurisdiction of the Court: a claim is no more than an estimate. Further, where a money judgment is sought, it would be curious if the limitation on jurisdiction did not apply because the pleadings should not identify a specific amount claimed. It would also be surprising if the jurisdiction (that is the power and authority of the Court to hear and determine a dispute) depended upon whether the claim as originally formulated was overblown, underestimated or reasonably accurate. On the other hand, the defendant's response to such a claim may well depend on these factors. A defendant, who might wishes to object to an expansion of the jurisdiction of the Court, if a judgment in excess of the jurisdictional limit were reasonably anticipated, might nevertheless not wish to object to a claim for such an amount in circumstances where he or she considered the claim unrealistic. In the latter case, the defendant would not wish to incur the possible additional expenses of the matter being transferred to the Supreme Court, to no advantage. The relevance of such practical considerations is confirmed by reference to s 51 of the District court Act, referred to below. However, once the purpose of the provisions is taken into account, it is apparent that the provisions discussed above do not lend themselves to a literal and inflexible construction, requiring an assessment made only at the moment of the commencement of proceedings. 13 Section 51 of the District Court Act has, for most of its life since 1973, provided, in effect, for a waiver of the jurisdictional limit by means of a memorandum of consent signed by the relevant parties. In its original form, s 51(2) provided: "(2) Where, but for this subsection, the Court would not have jurisdiction to hear and dispose of an action by reason only of the fact that the amount claimed exceeds [the then jurisdictional limit], the Court shall have jurisdiction to hear and dispose of that action if, together with the statement of claim by the lodging of which the action is commenced, the plaintiff files a memorandum of consent in respect of the action." 14 At the time the present proceedings were commenced, s 51 read as follows: " 51 Consent jurisdiction (1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced. (2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies: (a) if a party to the action or cross-claim files a memorandum of consent in respect of the action or cross-claim, or (b) if no objection to the Court's jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences. … (4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced. … (7) In this section, memorandum of consent in relation to an action or cross-claim means a document signed by each party to the action or cross-claim, or the party's solicitor, in which it is stated that each of those parties consents to the action or cross-claim being tried in the Court and is aware that, unless the document is filed, the Court will not have jurisdiction to dispose of the action or cross-claim." 15 In the present proceedings, no memorandum of consent was filed. The right of the plaintiff to obtain a judgment in excess of the jurisdictional limit of the Court therefore depended upon the fact that no objection to the Court's jurisdiction had been raised by any party, more than three months before the commencement of the trial or, in fact, at all. 16 It was common ground between the parties that, before a plaintiff could place reliance upon a lack of objection by a defendant, it would be necessary for the information supplied to the defendant, at least three months prior to the commencement of the trial, to reveal that the claim was above the jurisdictional limit, so that if the plaintiff were successful the jurisdictional limit might be exceeded. The questions in dispute resolved themselves into two, namely:

(a) what were the necessary or permissible mechanisms by which a defendant was to be put on notice that the claimed amount exceeded the jurisdictional limit, and

(b) did that occur at the relevant time, in the present case? Mechanism and time for disclosure 17 On a view supported by the respondents, the reference to "the amount claimed" must have referred to the amount claimed in the statement of claim, by which the proceedings commenced. That was said to be consistent with the language of sub-s 51(1), which required identification of the jurisdictional limit of the Court "as at the time the action was commenced". Although there was an element of ambiguity in sub-s (1), as to whether the temporal element qualified both the jurisdictional limit and the amount claimed, the preferable construction, it was submitted, was that it did. The only likely source of the amount claimed in the proceedings at the time at which they were commenced would be the statement of claim. 18 That view, attractive in its terms, ran into several difficulties, foreshadowed above. The first was the pleading point, namely that it is no longer permissible in the District Court to plead an amount on account of unliquidated damages. That might imply that the s 51 does not apply to personal injury actions. That would not deprive the section of operation, because the civil jurisdiction of the Court is not limited to personal injury actions. Alternatively, if s 51 does apply to personal injury claims, it may be necessary to look beyond the terms of the pleading to identify the amount claimed. 19 The respondent supported its submission by noting that the pleading could make clear that the jurisdictional limit was exceeded by a statement that damages were sought in excess of that limit, without pleading any amount. However, it does not follow that an express statement of that kind would be the only permissible means of drawing the extent of the claim to the attention of a defendant. Further, such a statement would not identify an amount claimed. 20 A second difficulty in relation to the temporal element (and as a consequence, limiting reference to the pleading) is the possibility of amendment. It may readily be envisaged that a plaintiff will discover, after commencing proceedings, but well before trial, that his or her damages are indeed greater than originally claimed. As the respondents accepted, an amendment to the pleadings would normally operate from the date on which the pleadings were filed. No doubt, from a defendant's perspective, such an amendment would need to be made a reasonable time in advance of the commencement of the three months pre-trial period, so as to allow time to consider exercising a statutory right of objection to an expansion of the jurisdiction of the Court. 21 Thirdly, and consistently with the last point, the fact that there is a period for objection referrable not to the commencement of the proceedings but the commencement of the trial, suggests that either the situation might vary during the pendency of the proceedings or that the proceedings might properly remain on foot, including a claim in excess of the jurisdictional limit of the Court, without contravening the limitation on the Court's power to hear and dispose of the action, but contingent, within the time permitted, upon an objection being taken to the jurisdiction. 22 Fourthly, it is to an extent arbitrary to limit the source of information to the statement of claim, there being no clear line between those matters which are properly dealt with in the statement of claim and those which may be identified in a separate statement of particulars. As will be seen, the statement of particulars in the present case included particulars of the amounts claimed and was a document referred to in the statement of claim itself. That such material might equally well be found in the originating process or in a separate document is apparent from a consideration of Pt 14 of the UCPR. What is more, the appropriate source may vary depending upon the nature of the proceedings. In this context, the respondent's reliance upon the fact that s 51 may apply across a range of categories of civil action, tends against any inflexible construction of the non-technical phrase "the amount claimed". 23 Indeed, it may be sufficient if the fact that the amount claimed exceeds the jurisdictional limit can be found in a document provided to the defendant by the plaintiff, separately from the originating process and any document containing particulars required as part of the pleading or the disclosure exercise provided for in Pt 14 of the UCPR. It is, however, not necessary to determine this issue in the present case. The appellant placed reliance only upon the statement of claim and the particulars provided with it either at the commencement of the proceedings, or by way of amendment, but at a time well prior to the commencement of the three month pre-trial period. Timing and mechanism for disclosure 24 In a judgment dealing with the whole of the proceedings, Murrell DCJ dealt with the jurisdictional limit issue with admirable succinctness, having identified the nature of the dispute. She stated at [87]: "Section 51(1) means that if, when filed, a statement of claim unambiguously claims more than the jurisdictional limit of $750,000 then, if no objection is raised in accordance with section 51(2)(b), the Court has extended jurisdiction in accordance with section 51(4)." 25 Her Honour noted that Elkaim DCJ had been inclined to adopt a similar approach in a matter of Bebe v Woolworths Ltd (unrep, 11 July 2008). However, in Bebe the point did not need to be decided, the damages as assessed being well within the Court's jurisdictional limit. The question appears to arisen as to the limits on available relief (a different point), but his Honour expressed a preference for the proposition that a claim as set out in a statement of particulars filed with the statement of claim would constitute the claim for the purposes of s 51: at [67]-[68]. 26 After considering certain other aspects of the material before the Court, her Honour was not satisfied that "the amount claimed by Ms Richards exceeded the jurisdictional limit of the Court as at the time that the action was commenced": at [90]. This conclusion was not favourable to the plaintiff - as a finding that the Court had jurisdiction - but meant that the relief available had not been extended by the defendants' failure to object. 27 The respondents relied on this combination of statements, at [87] and [90], to support their submission that her Honour had determined the matter as at the date of claim by reference to the statement of claim itself. Her lack of satisfaction was that the statement of claim "unambiguously" claimed an amount in excess of the amount of the jurisdictional limit. 28 Accepting for present purposes that this reading of her Honour's reasons is correct, the approach is, with respect, too constrained and inflexible. It is no doubt open to consider the claims in the pleading, but it is wrong to limit consideration to that document. It is significant that s 51 does not in terms require that, whereas other provisions do. For example, in s 44(2), as in s 51, there is reference to "the amount claimed in an action", which may cover proceedings brought by way of cross-claim, as well as the principal action, but which could still have been identified as appearing in a pleading, if that had been intended. Such language is adopted in s 23, dealing with abandonment of the excess, and was so adopted in s 50 of the District Court Act, prior to the commencement of the Civil Procedure Act. Section 50 referred to abandoning the excess "by stating the abandonment in the document by the lodging of which an action is commenced" and s 23 now refers to "a statement to that effect in the originating process". 29 Although it might be thought that not much weight should be placed on minor variations of terminology in a statute which has been much amended, the point of distinction may be found in the sections as they existed in the District Court Act in 1973, prior to any amendment. 30 Secondly, although the respondents placed some emphasis on the breadth of the Court's jurisdiction and the falling proportion of the cases for personal injury, for the purposes of statutory construction, the argument works against them. In 1973, upon the commencement of the District Court Act, it would have been anticipated that a large proportion of the civil jurisdiction of the Court would have constituted personal injury actions. At that stage the jurisdictional limit was $10,000. It is implausible that the legislature did not intend the procedure for expanding jurisdiction by consent to apply to personal injury actions. It is also true that, until the commencement of the UCPR, there appears to have been no express prohibition on pleading an amount of unliquidated damages in the District Court Rules. Nevertheless, the practice underlying that prohibition was established under the general law, before it found its way into Court rules. One purpose of such a practice may have been to prevent a plaintiff claiming unliquidated damages to obtain a default judgment for a specific sum, rather than for damages to be assessed. Further, at that time many personal injury claims were determined by jury verdict. When the jury assessed the damages, it was necessary to consider how account was to be taken of deductions by way of compensation and contributory negligence, a matter dealt with in the District Court Act (s 76), the operation of which was discussed by this Court in Nichols v Patrick Stevedoring Co Pty Ltd [1979] 2 NSWLR 457 at 459 (Samuels JA, Glass JA agreeing). 31 More importantly, there has never been a clear distinction between matters properly dealt with in pleadings and those appropriately dealt with by statements of particulars. In circumstances where it is inappropriate to identify a specific amount claimed by way of unliquidated damages, it is almost inevitable that the details of the amount claimed will be dealt with in a statement of particulars. That happened in the present case and the appellant was entitled to rely upon that document in having the Court determine "the amount claimed", for comparison with the jurisdictional limit. Was the amount claimed revealed in this case? 32 Although her Honour assessed an amount some $200,000 above the jurisdictional limit of the Court, at [82], she also concluded that "the amount claimed" did not exceed the jurisdictional limit "unambiguously": at [90]. The reasoning has, in part, been noted above: the remaining paragraphs in that reasoning read as follows: "[88] The October 2005 statement of claim sought 'damages'. The 'particulars of moneys paid or liable to pay' were 'to be advised'. In relation to particulars of economic loss, the reader was referred to the statement of particulars. The statement of particulars referred to out-of-pocket expenses of $1129.50. Future out-of pocket expenses were said to be $15,000 plus other unquantified expenses. In relation to past economic loss, there was a claim from 22 September 2004 of 'approximately $800 to $900 net per week … and continuing'. As to future economic loss, 'a claim (was) made at the plaintiff's pre-accident rate of pay until age 65 years'. There was no evidence as to what documents evidencing pre-accident rate of pay accompanied the statement of particulars, if any. At the trial, the evidence established that, in the period preceding the accident, Ms Richards earned $720 gross or $565 net per week. Ms Richards argued that, in effect, the statement of claim and statement of particulars claimed a total sum of $771,273 (see Exhibit K). [89] Exhibit K does not accurately reflect the claim as articulated on 10 October 2005. First, it assumes a past wage loss claim of $900 net per week over 1.1 years rather than $800 net per week over one year and 18 days. Second, it contains a future wage loss claim of $900 per week rather than $565 net per week (assuming that the statement of particulars was accompanied by a document evidencing $565). Third, it refers to the standard (but not automatic) discount for future economic loss of 15% for contingencies. Adjusting the Exhibit K figures claim to allow for these differences, the total falls well short of the jurisdictional limit of $750,000." 33 There are three related problems with this assessment. First, her Honour treated the phrase "pre-accident rate of pay", as relevant to future loss of earning capacity, as something different from the "$800 to $900 net per week" referred to as the figure for calculating past economic loss. Secondly, her Honour assumed (perhaps favourably to the plaintiff) that there was evidence available at the commencement of the proceedings to support a pre-accident rate of pay of $565 net per week. She treated that as the claim figure, because it was the amount revealed in the evidence. Thirdly, her Honour's use of Exhibit K at [89] was mistaken. The purpose of the exercise was to assess the economic loss as claimed. It was correct (and not some form of false assumption) to calculate the claim on the basis of $900 net per week. Nor was it erroneous to treat the calculation as subject to a discount of 15% for contingencies. It may be doubted whether any such allowance was required in seeking to identify the full extent of the "claim". Nevertheless, there was no basis identifiable in the statement of particulars which would have required a greater adjustment. 34 There is no doubt that the principal item in the calculation of damages was the loss on account of reduced earning capacity. Unlike the claim, the calculation in Ex K differentiated between past and future economic loss. As to the future, after allowance for 15% for vicissitudes, the amount was identified as $628,830. When an amount on account of superannuation was added to that figure, the two items in combination are almost $700,000. Exhibit K added an amount for past economic loss (including superannuation) of a little over $57,000. Specified amounts for out-of-pocket expenses were in excess of $16,000. Those calculations did not take account of any amount in respect of non-economic loss (for which her Honour allowed $171,000) or gratuitous attendant care services (past and future) (for which her Honour allowed approximately $170,000). Although the judgment did not explain those omissions, the justification was presumably that no specific amounts were identified in the statement of particulars in relation to those items. At least in relation to domestic assistance, the statement of particulars identified a claim for 14 hours per week "from the date of the accident to date and continuing for the balance of the plaintiff's natural life". A rough calculation of that item could readily have been made by a person familiar with assessing personal injury claims. 35 Putting to one side the omitted figures, the justification for her Honour's approach requires reference to the statement of particulars with respect to economic loss and particularly loss of earning capacity. It is convenient to set out the relevant items as they appeared in an amended statement of particulars dated 22 May 2008, and thus pre-dating the commencement of the trial by over nine months. The statement was as follows: "PARTICULARS OF ECONOMIC LOSS At the time of the accident the plaintiff was unemployed. She was in fact trying out for a possible job with the defendants. Even if the plaintiff had not obtained work with the defendants she would have obtained work as a truck driver within a short period of the accident and would have earned approximately $800 to $900 nett per week. A claim is made from 22 September 2004 to the date of this statement and continuing at that rate. PARTICULARS OF LOSS OF FUTURE EARNINGS AND EARNING CAPACITY The plaintiff is permanently precluded from any heavy work or work involving lengthy periods of walking or standing or sitting or kneeling or squatting or using stairs or ladders. She cannot work in the full duties of a truck driver. These duties generally involve her climbing in and out of truck cabins as well as loading and unloading. A claim is made at the plaintiff's pre-accident rate of pay until aged 65 years." 36 This statement does not divide the claims for economic loss into "past" and "future": that is understandable, because such calculations could only be undertaken at the date of trial (or judgment). Her Honour was in error in thinking that the figure of $800 to $900 net per week was restricted to past economic loss. The claim based upon that figure was expressly stated to extend to the date of the statement "and continuing". 37 Secondly, what comes under the second heading was not limited to "future economic loss". The particulars there provided related to the degree of impairment of earning capacity and undoubtedly applied both to the period between the accident and the date of the statement and to the future. The statement identified the hypothetical earning capacity, but for the accident, and the basis for claiming a total diminution of earning capacity as a result of the accident. Read as a whole, the phrase "pre-accident rate of pay" was intended to be a reference to the only rate of pay specified, namely $800 to $900 net per week, which was her earning capacity, but for the accident. 38 The calculation of damages which flows from these particulars is reasonably straightforward, although it may require a copy of the actuarial tables commonly used by professionals involved in assessing personal injury claims. 39 Two questions arise from these considerations: first, assuming that the statement is to be read as explained above, is it sufficiently precise in identifying particulars of the amount claimed to trigger the obligation on the defendants to object, if they wished to resist the extended jurisdiction of the Court? Secondly, does the fact that the trial judge read the statement differently suggest there is a degree of ambiguity which is, of itself, and regardless of the need to undertake some calculations, inconsistent with a sufficient specification of the amount claimed? 40 The statement must be read, for present purposes, through the eyes of the defendants, or their insurers, or their legal advisors, depending on the circumstances. This is not a question of statutory construction, but a consideration of the effect of the statement on the intended reader. That effect may be different depending upon the identity of the reader. For example, a statement in a document which is intended to make perfect sense to a lawyer and convey a particular impression, may not be effective in that regard if the person who in fact reads the document is not a lawyer. There is no doubt that, in the present case, the pleadings were considered by insurers and lawyers. If the defendants had been self-represented litigants, what might have been an adequate statement of an amount claimed, for professionals to understand, might well fail in its purpose. Whether, in a particular case, an adequate identification of the amount claimed has been made will be a question of fact. As explained by Lord Hoffmann in Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 774, in relation to the construction of a notice to determine a lease: "It is a matter of constant experience that people can convey their meaning unambiguously although they have used the wrong words. We start with an assumption that people will use words and grammar in a conventional way but quite often it becomes obvious that, for one reason or another, they are not doing so and we adjust our interpretation of what they are saying accordingly. We do so in order to make sense of their utterance: so that the different parts of the sentence fit together in a coherent way and also to enable to the sentence to fit the background of facts which plays an indispensable part in the way we interpret what anyone is saying."

See also Lord Steyn at 767-768. 41 For present purposes, the question is whether the statement of particulars was adequate to put the defendant on notice, in the absence of an express statement to this effect, that the plaintiff was claiming an amount in excess of the jurisdictional limit of the Court. In the circumstances of this case, it may be accepted that the defendants' advisors would have known the jurisdictional limit, would have been able to calculate readily the upper limit of the claim for economic loss and would have reached the figure noted above. They would also have noted the claims for non-economic loss and domestic assistance which, although unquantified, would have put beyond doubt the fact that the total amount of damages sought was well in excess of $750,000. 42 In relation to the second question, her Honour's misunderstanding has been explained. The reading of the particulars proposed above is not strained, but logical and factually straightforward. A rate of pay was specified in the first paragraph as reflecting the plaintiff's earning capacity but for the accident. There is no reason to suppose that the reference to a "pre-accident rate of pay" was intended to refer to any other figure. Particularly was that so in circumstances where the statement indicated that the plaintiff was unemployed immediately prior to the accident. Furthermore, it would be internally inconsistent, even nonsensical, to identify an earning capacity at a particular figure per week, make a claim based on that figure to the date of the statement "and continuing at that rate" and then, after particularising the diminution in earning capacity, purport to make a claim on a different basis. It appears that the trial judge may have misread the document. In any event, the meaning is sufficiently clear not to give rise to a real basis for saying that the defendants, being in receipt of advice from professionals exercising reasonable care in reading the document, would not have understood its import in the manner indicated above. Conclusions 43 The proposition that s 51 can operate only in circumstances where a specific amount has been claimed in the statement of claim should be rejected. Such an approach would prevent the limitation on jurisdiction imposed by s 44(1)(a)(ii) having application to claims for unliquidated damages. 44 For similar reasons, the absence of an express statement of a global figure for unliquidated damages does not preclude the operation of s 51. 45 The assessment of the amount claimed, for the purposes of s 51, may take account of the relevant particulars, whether or not included in the statement of claim. 46 Communication of the relevant particulars need not be contemporaneous with the commencement of the proceedings, but, to attract the operation of s 51(2), must have occurred at a sufficient time prior to the commencement of a period of three months before the date fixed for hearing, to allow the other parties a reasonable opportunity to decide whether or not to object to the Court's jurisdiction. In the present case, the amended statements of particulars given in May and June 2008 were sufficiently precise to allow for a calculation of an amount claimed and was given in ample time for the defendants to decide whether or not to object to the Court's jurisdiction. 47 The amount claimed, calculated by reference to the amended particulars, was, on any reasonable view, well above the jurisdictional limit of the Court. 48 The failure of the defendants to object pursuant to s 51(2) engaged the power of the Court to give judgment for an amount up to 50% above the jurisdictional limit. 49 In the present circumstances, the plaintiff was entitled to a judgment in her favour in the amount of $959,670, such judgment to have effect on 7 May 2009. 50 Accordingly, the Court should make the following orders:

(1) Allow the appeal and set aside order 4, being a judgment for the plaintiff in an amount of $772,818.

(2) In place of order 4, give judgment for the plaintiff in the sum of $959,670 to date from 7 May 2009.

(3) Order that the respondents pay the appellant's costs of the appeal.

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