Scarlett Anne Robinson bhnf Anthony James Robinson v Riverina Equestrian Association Inc

Relevant legislation and principles

1. Section 140 of the Act relevantly reads: "140 Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. … (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied - (a) in the case of a motor accident claim or a workplace injury damages claim - … (b) in any other case - (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court."
2. The present application hinges on the issue arising under s 140(3)(b)(i) of the Act.
3. The relevant legal principles in relation to an application under s 140 of the Act were recently summarised by Harrison AsJ in SW v The Sydney Children's Hospitals Network t/as Westmead Children's Hospital [2022] NSWSC 293 at [53]-[54] as follows: "[53] In BOC v MDL [2019] NSWSC 278, Hoeben CJ at CL summarised the relevant legal principles that apply to an application pursuant to s 140 of the Civil Procedure Act. His Honour at [17]-[19] stated: "Legal principles [17] In exercising the discretion conferred by s 140 of the Civil Procedure Act, it is necessary for the Court to consider all relevant facts and circumstances (Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [4], Bryson J; Harbourside Catering Pty Ltd v TMG Developments Pty Ltd [2006] NSWSC 631, Campbell J). [18] The applicant for transfer bears the onus of satisfying the Court that there is "sufficient cause", "sound ground" or "good reason" to transfer the proceedings so that justice is best served between the parties: Sanderson Motors at [3]-[4]; Parry v WGE Engineering Pty Ltd [2003] NSWSC 337 at [3]. [19] In Rinbac Pty Ltd v The Owners - Strata Plan No 64972 [2010] NSWSC 656; 77 NSWLR 601 Brereton J (as he then was) said at [11]: "[11] The purpose of the Civil Procedure Act, s 140, is to permit the removal from a lower court to a higher court of proceedings where there is good reason to do so. Typically, that has been where there has been a risk that a jurisdictional limit affecting the lower court would be exceeded, where there are complex and important issues, and where the proceedings involve allegations of significant notoriety or public importance." [54] In Hau Shan v Fairfield City Council [2020] NSWSC 681, Button J at [14] said: "[14] I think that the issue here is an assessment on my part in a broad sense of the likelihood of this claim succeeding in going beyond the District Court's jurisdiction. Patently, one would reject out of hand, as a matter of theory and practice, the idea that the work of the Supreme Court would be clogged up by matters that, for some reason or other, are sought to be either commenced here or transferred here when it is perfectly clear that a lower Court is ready, willing and able to deal with the matter, and to do justice in the matter."
4. In Marincic v State of New South Wales [2017] NSWSC 272, Button J stated at [12]-[13] that: "[12] Sixthly, it is true that I am required to be satisfied of a likelihood, in accordance with the sub-paragraph of the section upon which the plaintiff relies. But there is authority for the proposition that that determination must be approached as something of a matter of impression: Johnstone v State of New South Wales [2006] NSWCA 105; Lazare v City of Sydney Council [2015] NSWSC 1546. [13] Seventhly, I remain of the view, expressed by me in Pelka v Woolworths Limited [2016] NSWSC 1312, that the sub-paragraph must be read in accordance with s 56 of the Act. In particular, I consider that the possibility of a plaintiff being denied his full measure of damages according to law, simply because his solicitor has commenced proceedings in a court subsequently found to be inappropriate, is firmly contrary to the mandate to do justice to be found in that section."
5. The determination of an application for a transfer order is an exercise of impression as to whether there is a risk, on the evidence, that the value of the damages may exceed the jurisdictional limit of the lower court if the plaintiff succeeds on the claim. It is not a task to assess the veracity of conflicting evidence.

Consideration

1. The issue then in the application between the parties is whether there is a risk that the value of damages, if the plaintiff is successful on the merits of the claim, would exceed the jurisdictional limit of the District Court, which is $750,000.
2. The evidence on the Summons comes from Mr Geoff O'Hare, the solicitor for the plaintiff, and Mr Mitchell Stein, Special Counsel for the four defendants.
3. The evidence shows that the plaintiff sustained injuries as a result of the incident involving a fractured skull, fractured left temporal bone, permanent hearing loss or severe deafness in the left ear, facial nerve palsy/paralysis, contusion to the lungs, psychological sequalae, moderate traumatic brain injury and closed head injury. The injuries noted in an ambulance report (the plaintiff being taken to hospital after the incident by ambulance) included blood from the left ear and a fracture at the base of the skull.
4. The Clinical Psychological Neuropsychological Assessment Report, dated 18 December 2021, by Mr Dino Cipriani, a clinical psychologist, stated that the plaintiff suffered a moderate traumatic brain injury from which she has made a good cognitive recovery but with behavioural and emotional changes which are affecting classroom engagement, relationships with siblings and social development. Mr Cipriani stated that the prognosis appears favourable at this stage, but also observed: It is premature to offer an opinion on whether there will be permanent cognitive and academic effects, as this may only become evident during high school. The reported emotional and behavioural changes would be amenable to psychological intervention for anger, aggression and social anxiety.
5. The letter dated 15 May 2019 of Ms Janine Hobson, an optometrist, noted that the plaintiff has a "short attention span" and "reduced vision in the right eye".
6. The discharge referral notes of the Sydney Children's Hospital stated that the plaintiff suffered from facial nerve palsy, a laceration of the spleen, hearing loss and a fracture of the base of the skull.
7. The Brain Injury Rehabilitation Review dated 9 January 2018 by Dr Adrienne Epps, the Senior Staff Specialist and Head of Rehab2Kids at the Sydney Children's Hospital, notes that the plaintiff has had significant improvement in facial movement but had "an extensive base of skull fracture" and "severe to moderately severe hearing loss in the left ear".
8. A review dated 9 January 2018 conducted by Dr Thomas Kertesz, an ear, nose and throat surgeon, noted that the plaintiff "sustained a transverse fracture of the left petrous temporal bone" following the incident. Dr Kertesz stated that "she has been left with a labyrinthine disturbance and a dead left ear". In his opinion, "I doubt that this would recover".
9. Dr Raj Raddy, a neurosurgeon, noted on 30 August 2018 that the plaintiff had made progress but there remained issues in terms of loss of hearing in her left ear and her current ear infections. He also indicated that she no longer had a left facial nerve palsy and had good facial movement. He also explained that with the left skull fracture there is a long-term risk of an occult dural which may result in a CSF risk, although he considered the possibility of this outcome to be "quite low."
10. On 11 March 2019, a paediatric audiologist, Ms Catherine Heape, reported ongoing left hearing loss which was described as a mixed severe to profound loss in the left ear. That hearing loss was described as permanent in nature and had the potential to affect the plaintiffs school performance.
11. Dr Warwick Stening, a neurosurgeon, reported on 5 March 2020 that the plaintiff's hearing and balance disturbances will not recover although there will be no long-term sequelae from the brain injury. He also observed that there was a small risk of meningitis and, if she had repeated attacks of meningitis in the future, she may require open craniotomy to repair the dural defect. Dr Stening observed the plaintiff would have a permanent inability to compete for employment in the open market and that it was impossible to predict what requirements for assistance in household and domestic duties will be necessary when she obtains adulthood.
12. Dr Ken Howison, an Ear, Nose, and Throat surgeon, reported on 10 March 2020 that the only possible way of improving the hearing in the left ear of the plaintiff would be to carry out a cochlear implant which then estimated to cost $20,000. He also observed that the plaintiff will be unable to work in any employment that required normal hearing in both ears. Dr Howison opined that there was no objective evidence of vestibular dysfunction, difficulties swallowing or weakness in the distribution of the facial nerve. He stated that, "provided the plaintiff was able to use her right ear for hearing, she should have no difficulty with her future schooling or playing sport." He observed that the loss of the hearing in the left ear was severe but would not deteriorate further with the effects of aging.
13. Similarly, Ms Izabella Glavevski, an assistant medico legal officer at the Sydney Children's Hospital, observed that the plaintiff will have permanent severe hearing impairment in her left ear which potentially would affect her schooling and learning and her work career.
14. In a report dated 20 January 2021, Dr Ken Maclean, a paediatrician and clinical geneticist made recommendations for treatment of the plaintiff for the future. He observed in that respect that, "cognitive failure, anxiety, emotional dysregulation, irritability, social communication difficulties and effects on mood, attention, self-esteem and interpersonal relationships are relevant." His prognosis was the plaintiff had a "static disorder with potential for gradual emergence of sequelae, notably, affects on cognition, communication and behaviour" and that, in his opinion, the plaintiff will face increasing demands with risks of cognitive failure and relevant decline in her academic performance, behaviour, and self-esteem.
15. Dr Chris Rikard-Bell, a consultant psychiatrist, gave a report dated 10 September 2021, concerning the plaintiff. He observed that the plaintiff had no specific psychological disorder or injury although she would benefit from six treatments with a clinical psychologist. He further observed that the plaintiff's capacity for school and tertiary education in relation to psychological injury had not been affected although he noted the deafness in her left ear. He observed that as a teenager it was possible that the plaintiff would start to develop some concerns about the injury that had occurred, although there was no reduction in capacity at this stage.
16. Dr Rikard-Bell observed that should the plaintiff's condition deteriorate in the future it is possible that she could develop an anxiety disorder. Whilst he believed that the plaintiff had stabilised, he observed that "it is difficult to know how she might perceive these events once she is a little more mature and can understand the gravity of the accident that occurred."
17. Dr Michael Delaney, an ophthalmic surgeon, opined that the plaintiff's left facial nerve palsy had almost completely resolved as of 5 March 2020. He noted that she only experienced symptoms of droopiness on the left side of her face when she was tired. There was the whole of person impairment resulting from her mild unilateral facial paralysis at 1%.
18. The Court received the advice of Mr Kelvin W Andrews, counsel for the plaintiff. The defendants disputed his assessment, in particular his allowance for non-economic loss, out of pocket expenses and future economic loss which were, it was contended, not substantiated on the evidence. The defendant submitted that his opinion was highly qualified and that aspects of the medical evidence provided a positive prognosis for the plaintiff, although, acknowledgement was given to the hearing loss in the plaintiffs left ear. The defendant submitted that the medical evidence did not support an assessment of damages above $500,000, particularly having regard to no physical limitations being reported by the plaintiff's parents (except in relation to balancing activities) or her aptitude for household chores and recreational activities.
19. However, the aforementioned of the evidence does, in my view, lend support at this stage of the proceedings to Mr Andrews' assessments and creates the impression that there is a risk that the value of damages may exceed the jurisdictional limit of the District Court if the plaintiff succeeds in her claim.
20. Mr Andrews' opinion gave a total estimate of the quantum of damages as between approximately $825,000 and $1.02 million based upon the following assessments: 1. Non-Economic Loss 1. The damages for non-economic loss are assessed pursuant to s 16 of the Civil Liability Act 2002 (NSW). In this regard it is appropriate to take into consideration the fact that the plaintiff has a total loss of hearing in the left ear which will require cochlear implants and may result in some degree of embarrassment or concern for the plaintiff as she enters into her teenage years. 2. The various matters set out in Dr Cipriani's report are all factors that need to be taken into consideration. 3. Non-economic loss in this matter will depending upon the eventual findings in relation to the brain damage amount to between 38% and 50% of a most extreme case being between $263,500.00 and $347,000.00. 1. Past Treatment Expenses - The plaintiff has to date incurred medical expenses of $1,192.30 together with expenses paid by the Medibank Private Health of $3,731.00 and other expenses paid by the plaintiff's parents totalling $4,900.05. 2. Future Treatment Expenses 1. The future treatment expenses are difficult to calculate in the absence of determining the full impact of the plaintiff's injuries which as Dr Cipriani has said can only be ascertained in the mid high school years. 2. Assuming the plaintiff has ongoing difficulties in relation to the brain damage aspects of the claim future treatment expenses could be assessed as follows: 1. Attendance upon general practitioners 3 times per annum at $95.00 per consultation totalling $5,730.43 6 2. Referral to a neurologist once per annum for monitoring of the head injury: $2,000.00 3. Cochlear implants at a cost of $40,000.00 with revision every 5 years: $181,040.00 4. Risk of future surgery by way of craniotomy deferred: $10,000.00 5. Attendance upon Ear, Nose and Throat specialist: $9,045.00 6. Attendance upon clinical psychologists: $1,500.00 1. Past Economic Loss 1. There is no claim for past economic loss having regard to the plaintiff's age. 1. Future Economic Loss 1. Future economic loss, once again, is difficult to assess, however, if the plaintiff's injuries as referred to by Dr Cipriani continue into her mid-teens and onwards the plaintiff could well suffer a future economic loss of between $300,000.00 - $400,000.00. 2. The plaintiff would be entitled to superannuation on those amounts which would amount to $42,000.00-$56,000.00 allowing it at 14%.

Conclusion and Orders

1. My overall impression is that there is a risk that the amount to be awarded, if the plaintiff is successful, may exceed the jurisdictional limit of the District Court. The plaintiff has established that, in accordance with ss 140(1) and 140(3)(b) of the Act, the District Court proceedings should be transferred to this Court.
2. Both parties agreed that costs should be in the cause. I accept that joint position.
3. For these reasons, I make the relief claimed in the Summons, which is as follows: 1. Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), the District Court Proceedings No. 2020/00313256 between Scarlett Anne Robinson bhnf Anthony James Robinson and Riverina Equestrian Association Inc and others be transferred to the Supreme Court. 2. Pleadings in the District Court become pleadings in the Supreme Court. 3. The costs of the Summons be costs in the cause.

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: 19 July 2022