Ryan v McDonalds Australia Ltd

Supreme Court of NSW|2017-10-06|Before: Lonergan J, Campbell J

Judgment

On 6 October 2017, I made an order for transfer of these proceedings from the District Court to this Court pursuant to the Civil Procedure Act 2005 (NSW) s 140(1). Due to time constraints, I reserved my reasons for making that decision. These are my reasons.
The proceedings concern a head injury suffered by the Plaintiff when she was 5 years old. It is alleged that the injury occurred on 15 November 2001 when the Plaintiff slipped on greasy floor at McDonalds Caringbah and hit her face on a marble table.
The Plaintiff is now 21 years old. The evidence upon which she relied outlines a history of problems consistent with frontal lobe damage including severe headaches, personality change due to brain injury, severe mood swings, dysregulation of emotion, behaviour and cognition, lapses in cognitive function and resultant inability to complete her schooling and maintain employment.
The proceedings were commenced in March 2002. The Defendant has denied liability and pleads contributory negligence. The Defendant also declined, in its Defence, to consent to extended jurisdiction. The Defendant also, for the purposes of this application, takes the view that the proper assessment of the available expert evidence suggests a lower damages figure than that suggested by the Plaintiff.
The proceedings have had a very chequered history over the last 15 years, including multiple amendments to the statement of claim, the last as recent as August 2017, and repeated last minute adjournments of hearings with poor explanations. This has resulted in multiple costs orders having been made against the Plaintiff's tutor.
This application for transfer has necessitated the vacation of yet another hearing date which was listed for 30 October 2017 in the District Court.

Evidence of the Plaintiff in support of the application

The application was supported by affidavits from the Plaintiff's parents and also her solicitor. The parents deposed to significant change in the Plaintiff's day to day emotional functioning, cognitive abilities and memory from shortly after the accident to date. They also deposed to her many difficulties functioning in the community as an independent adult and her problems with maintaining employment.
The Plaintiff's solicitor's affidavit exhibits various reports from experts who have assessed the Plaintiff over the years. The focus is understandably on cognitive and psychiatric assessments.
Professor Kennett, neuropsychologist, assessed the Plaintiff in 2003, 2009 and most recently in April 2017. He is of the opinion that the Plaintiff has a severe acquired brain injury resulting in very limited coping strategies and that she is heavily dependent upon others in order to cope at work and in general. He concludes that the problems have been caused by frontal lobe damage when the Plaintiff hit her head in this accident.
Professor Kennett further concludes, in light of his neuropsychological testing in 2003, 2009 and 2017 that there has been a significant decline in function and it is explainable by the brain injury. In his 2009 assessment, he concluded there were severe cognitive difficulties and intelligence limits, clear signs of frontal lobe impairment and problems with memory and mood swings.
Professor Dan, neurosurgeon, reviewed the Plaintiff in December 2015 and in his report said that it was his view that the Plaintiff's ongoing headaches are post-traumatic, unlikely to ameliorate and will continue for life. Dr Milner, neurologist, diagnosed post-traumatic migraine back in 2003.
A psychiatrist, Dr Newlyn in September 2003 made a diagnosis of "personality change labile type: head injury".
Dr Quadrio, who examined the Plaintiff in 2014 and summarised a number of historical assessments and reports and school reports, concluded that the Plaintiff has "personality change labile type due to brain injury" and "organic personality disorder due to brain injury". She states the prognosis is for little further change (p 18).
The Plaintiff's solicitor has prepared a schedule of damages which assesses the Plaintiff's potential total damages award at a range of $1.7-1.9 million plus costs.

Defendant's evidence

The solicitor for the Defendant has in her affidavit offered the view that the damages, should the Plaintiff succeed, would not be of the level asserted by the Plaintiff's solicitor. She states that the most recent statement of particulars would justify an entitlement to damages at between $511,000 and $867,000 plus non-economic loss and past out of pocket expenses.
The affidavit annexes a number of assessments by experts retained by the Defendant who raise issue with the assessments relied upon by the Plaintiff. Dr Wendy Roberts, neuropsychologist, concluded after her assessment in 2016 that the Plaintiff does not suffer from any cognitive or emotional disabilities attributable to the original accident and disputes that the Plaintiff requires the assistance she asserts she needs.
There is also an occupational therapy report from Ms Zeman, which takes issue with the Plaintiff's asserted level of disability. A report from Dr Jayne Antony, paediatric neurologist, dated 10 March 2014 concluded that there is no correlation between the accident and the Plaintiff's difficulties in either the behavioural or academic sphere. She asserts the view that given the accident did not result in loss of consciousness and that medical input and investigations were minimal, the later decline and clinical picture is very poorly explained by the clinical details of the head injury.

Submissions and argument

The Plaintiff's position is that the likely damages she will be awarded will easily exceed $1 million. The Defendant's assessment of the high range of a potential damages award based on the most recent statement of particulars filed by the Plaintiff reaches a figure that is likely to exceed $1 million given it comprises $867,000 plus something for non-economic loss and past out of pocket expenses.
Whilst there is clearly a dispute between the experts about the causation of the ongoing sequelae, there is in my view a real chance of the Plaintiff being awarded more than $1 million if successful. Of course that must depend upon what evidence is accepted and it is not the function of this application to carry out any determination of that question. What I can say is that there is material before me that persuades me that there will be evidence available at trial which, if accepted, would justify an award in excess of $1 million. That evidence includes the first hand evidence of the Plaintiff's parents and the multiple professional assessments over the last 14 years of the Plaintiff's declining level of cognitive and emotional functioning and the opinions of the Plaintiff's experts as to the causal role in this of the head injury in 2001.
I am satisfied that in the circumstances it is appropriate for the proceedings to be transferred to the Supreme Court.
In relation to costs, I have been asked to specifically reserve that question pending a further application and affidavit evidence. At this stage, I reserve the question of costs.

Orders

I make orders in the following terms: 1. District Court Proceedings No 2002/95072 be transferred to the Supreme Court pursuant to s 140(1) of the Civil Procedure Act. 2. Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2018

Civil Procedure Act 2005(NSW)s 140, s 140(1).

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