HER HONOUR: Siar Tauri suffered head injuries as a young child when he fell between the planks of seating for patrons at the circus. He was aged 18 months at the time of the accident.
Proceedings for negligence were commenced in the District Court. A separate hearing as to liability was conducted in that Court. Judge Finanne QC found that the defendant was negligent and causally responsible for the damages suffered by the plaintiff. As the plaintiff was still young at the time of the hearing, his Honour did not consider that he could, with justice, assess damages at that time. His Honour made directions contemplating that damages would be assessed after a further period of six years.
The plaintiff is now aged 19 years. On the strength of medical opinion obtained earlier this year he contends that his damages have a potential value in excess of $750,000, which is the jurisdictional limit of the District Court. By amended summons filed 6 June 2017, he seeks an order that the proceedings be transferred to this Court.
On 21 September 2017 I made the orders sought in the amended summons, reserving my reasons. These are my reasons for making those orders.
This Court's authority to transfer proceedings in the District Court to this Court is to be found in s 140(1) of the Civil Procedure Act 2005 (NSW). Section 140(3) relevantly provides that proceedings on a claim for damages arising from personal injury or death are not to be transferred unless this Court is satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court. The section also allows transfer of proceedings if there is "other sufficient reason" for hearing the proceedings in this Court but the plaintiff does not rely on that provision in the present application.
Accordingly, the only question to be determined is whether the amount to be awarded to the plaintiff is likely to exceed $750,000.
The approach to be taken to that assessment is well-established. In determining the question posed by s 140(3), the Court is not required to engage in a preliminary trial of the matter and, in particular, is not required to engage in an individual assessment of each head of damage under which a claim is made: Johnstone v State of New South Wales [2006] NSWCA 105 at [23] per Giles JA; Santow and McColl JJA agreeing at [26] and [27]; Younes v QIC Ltd (trading as Westpoint Blacktown) [2012] NSWSC 451 at [50] (Bellew J). Rather, the task is to arrive at a likelihood, to an extent as a matter of impression but founded on the evidence before the Court: Johnstone at [22]. The term "likely" does not mean more probably than not. It requires the Court in a summary way to make an assessment as to whether there is a real chance of the plaintiff obtaining a verdict of more than $750,000 if successful: Cubrilo v Veljovic [2015] NSWSC 367 at [9] (Campbell J), cited with approval in Parker v MID Plumbing Services Pty Ltd [2017] NSWSC 1060 at [16] (Lonergan J).
The plaintiff's application in the present case was supported by an affidavit sworn by his solicitor which annexed the pleadings in the District Court, a collection of medical reports and the judgment of Finnane QC DCJ. The affidavit also annexed a schedule of damages prepared by the solicitor with the advice of Ms Welsh of counsel, who has substantial experience in this field.
The plaintiff's schedule of damages suggested figures totalling over $1.4m. Adopting the approach approved by the Court of Appeal in Johnstone, it is appropriate to confine attention to the three main components of that calculation, as follows:
1. General damages (60%): $363,000
2. Future economic loss: 50% at average weekly earnings for the whole of the plaintiff's working life expectancy: $620 x 49 years (working life expectancy multiplier 971.5) x 85%: $511,980
3. Future care: case manager 2 hours per week at the rate of $205 per hour x 1,028.8 (life expectancy multiplier): $421,808
According to the evidence recorded in the judgment of Finnane QC DCJ, the distance the plaintiff fell was about 3 metres. He suffered a comminuted displaced fracture of the left frontal bone and a small left frontal extra-dural haematoma with multiple small areas of contusion in the left frontal lobe. There was mild mass effect in the left front lobe. He was taken to Liverpool Hospital by ambulance and subsequently transferred to the Children's Hospital at Westmead where he remained for about 9 or 10 days (the judgment of Finnane QC DCJ records that he remained in a coma for that period, but that may be an error).
The plaintiff's claim is outlined in Ms Welsh's written submissions in the following terms:
Subsequent to the accident the plaintiff was noted to exhibit aggressive behaviour and behavioural problems have continued to be a feature of the plaintiff's interaction with others to the present time. Additionally, on neuropsychological assessment by Peter Rawling, a major failing was identified in his basic literacy skills. The accident was regarded as a significant contributor to that problem and as the cause of a marked change in his temperament consistent with frontal lobe damage.
The submissions anticipate that the plaintiff's mother and other family members will give evidence at the trial to establish the plaintiff's ongoing problems with social interaction and psychosocial functioning.
The submissions state that the plaintiff left school at the age of 15 and failed to engage in further education or employment for a period of approximately two years before he obtained employment as a labourer. He presently works as a storeman earning up to $800 net per week. It is the plaintiff's case that he will be unable to complete any trade qualifications because of his literacy and behaviour problems which it is contended are causally related to the accident.
The medical reports relied upon by the plaintiff record assessments of his condition at various stages from as early as 2005. While the later reports are the most pertinent, it may be noted that, as early as February 2005, it was anticipated by Dr Conrad that he may have organic brain damage and, in particular, frontal lobe injuries which are associated with changed behaviour patterns. It was further anticipated that such brain damage would affect his employment prospects in the future. In a later report dated 29 August 2016 Dr Conrad confirmed his opinion that there is a probability that the plaintiff has had some organic brain damage. He noted that the plaintiff was working as a labourer and said "he is able to do this providing he is employed in a non-confrontational situation". He said the prognosis is "guarded" and recommended psychometric assessment.
The plaintiff was also seen at an early stage by a neuropsychologist, Peter Rawling. He recommended that assessment of final and permanent impairment in the brain should be delayed until the plaintiff attained the age of 18 years. He considered that "rushing to settlement" could lead to an underestimate of the plaintiff's disability.
Mr Rawling conducted a complete neuropsychological review in September 2016 (I note that he appears only to have had access to the Liverpool Hospital reports, recording that the plaintiff was in hospital for less than one day; cf the judgment of Finnane QC DCJ who recorded that the plaintiff was transferred from Liverpool to Westmead Hospital and remained there for 9-10 days.) Mr Rawling recorded the plaintiff's history of "very marked delay in the development of language skills" during school, which had resulted in his being placed on an individual learning plan. He wrote "predictably, he has struggled to keep up at school and when it was suggested that he repeat year 9 he withdrew from school".
Mr Rawling's assessment in 2016 confirmed "the persisting weakness in language-based intellectual skills". He also recorded the history obtained from the plaintiff's mother of persisting problems with explosive temper associated with violent acting out, lack of respect or concern as to the feelings of others, disregard of the law and lack of motivation. The report concludes:
Up until May of this year, he was leading the kind of lifestyle that one would expect of a person with a frontal lobe syndrome. Since then, he was at least a little more self-motivating but his cognitive and behavioural problems mean that he is a person at risk and his prospects for stable employment and successful psychosocial adaption remain diminished.
In a later report directed at the issue of whether the plaintiff is under a legal incapacity in the conduct of these proceedings, Mr Rawling expressed the opinion that the plaintiff does have the intellectual capacity to evaluate advice and make a determination as to the course of action most likely to serve his best interests.
Probably the most important reports in the present application are those of Dr Stephen Buckley, a consultant physician in rehabilitation medicine. In his first report dated April 2017, Dr Buckley explained the difficulty of assessing impairment resulting from frontal lobe damage. He said:
When the frontal lobes are damaged, human behaviour tends to revert to instinctive, rather than "thought through" behaviours, and thus the tendency towards impaired impulse control. Further, the nature of our responses to our environment denotes our "personality" (because we describe the manner in which a person interacts with the environment in terms of their personality). It is very difficult to describe environmental interaction through cognitive testing because it is not a precisely cognitive activity.
For that reason, Dr Buckley stated that, in order to provide a complete opinion, it would be necessary to review statements from close observers of the plaintiff's behaviour over the last 12 months.
In a supplementary report dated June 2017, after reviewing statements provided by the plaintiff's siblings together with information provided by the plaintiff himself, Dr Buckley concluded:
Mr Tauri has demonstrated a capacity to obtain work as a storeman, but in my experience those with poorly developed social skills and irritable intolerant behaviour caused by frontal lobe injury have difficulty maintaining appropriate work relationships with customers, work peers, supervisors and employers.
Dr Buckley concluded that, in his opinion, it is unlikely that the plaintiff will be able to maintain employment for more than half the period of time of the rest of his working life. That is the basis for the future economic loss component of $511,980 in the plaintiff's schedule of damages.
As to future care, Dr Buckley considers the plaintiff to be sufficiently impaired as to have considerable difficulty in planning, implementing and maintaining a reasonable quality of life. He considers on that basis that the plaintiff should have another person to turn to (identified by Dr Buckley as a "case manager") who might be an occupational therapist, a nurse, a social worker or a psychologist. Dr Buckley proposes that such a case manager would be required for two hours a week of active involvement.
The plaintiff submitted that, on the basis of the medical evidence summarised above and the lay evidence which will be available at trial, there is a real likelihood that damages will be assessed in an amount that exceeds the jurisdictional limited of the District Court.
The application was vigorously opposed by the defendant. It was submitted that there is insufficient evidence to establish the likelihood that damages would exceed $750,000; that there is no correlation between the evidence and the plaintiff's assessment of damages and that the plaintiff's assessment is inflated.
The defendant relied upon an affidavit sworn by its solicitor, Ms Ruschen, annexing a large volume of material including the discharge report from the Children's Hospital dated 7 June 2000, three reports from the consultant neurosurgeon, Dr Matheson (the most recent of which was dated 25 November 2008); particulars; documents obtained on subpoena including the plaintiff's school and employment records and other documents.
Ms Ruschen, who argued the application on behalf of the defendant, accepted that the relevant principles are correctly stated in the decision of Bellew J in Younes cited above and a later decision of his Honour in which the same principles were applied: Lazare v City of Sydney Council [2015] NSWSC 1546. Ms Ruschen submitted, however, that the later judgment was wrong in one respect. In Lazare at [42], Bellew J repeated the principles stated in Younes set out above, namely, that the approach to be taken is an "impressionistic" one and that the Court is not required to undertake an individual assessment of each head of damage under which a claim is made.
In undertaking that impressionistic assessment, His Honour later said at [48]:
In terms of the claim for domestic assistance, there will obviously be evidence from the plaintiff at trial which goes to that issue and which, if accepted by the trial judge, may be capable of constituting an appropriate evidentiary basis for an award of damages: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 at [54] per Allsop P (Campbell and Meagher JJA agreeing). However in the present case, I am not aware of what evidence will be given by the plaintiff in relation to this issue. Moreover, even if that evidence were before me, I would not be in any position (nor would it be my role) to determine the likelihood of its acceptance, or rejection, by a trial judge.
Ms Ruschen submitted that the last sentence is not correct, evidently understanding his Honour's remarks to mean that, if the evidence was before him, he would disregard it. That is clearly not what his Honour meant. His Honour was simply reiterating the proposition stated in Johnstone as to the nature of the task for the Court at this stage. In particular, it would not ordinarily be appropriate on an application of this kind for the Court to pre-empt the findings of the trial judge as to the credibility or reliability of the evidence of lay witnesses.
In my respectful opinion, although the relevant principles were not in dispute, the defendant's opposition to the application misconceived the correct application of those principles. The plaintiff's written submissions invited the Court to consider "the medical evidence [which is before the Court] and the lay evidence which will be available at trial". The burden of Ms Ruschen's submission was that, in referring to the evidence that "will be" available without adducing direct evidence from the plaintiff at this stage, the application invited impermissible speculation as to the evidence that will be given at trial. She submitted that the application cannot be determined on that basis and that, on an application of the present kind, the applicant must put on direct lay evidence of the factual premises of any medical report.
Separately, Ms Ruschen sought to establish as an affirmative proposition, by reference to various information contained in material obtained on subpoena such as the plaintiff's work records and a "school exit form", that the assumption made by Dr Buckley (that the plaintiff has poorly developed social skills and irritable intolerant behaviour caused by frontal lobe injury) will not be established at trial.
In my respectful opinion, those submissions invited a wrong approach. The authorities addressed by both parties clearly establish that the Court is not required, on an application of this kind, to engage in a preliminary trial of the matter. Of course, an application to have proceedings transferred under s 140 must be based on evidence but that is not to say the plaintiff cannot obtain an order under that section without proving his whole case.
The application in the present case was supported by evidence in the form of medical reports. It may be accepted that the weight and potentially even the admissibility of such reports will, at trial, rest on the extent to which the history obtained by each expert is established by the lay evidence called at trial. But it would be inimical to the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) to expect a plaintiff to put on his whole case in chief for the purpose of establishing a likelihood of obtaining an award of damages exceeding $750,000. I would understand the term "impressionistic" used by Giles JA in Johnstone to indicate, rather, that the Court should be presented with enough evidence to give the plaintiff's picture of the case. There will be cases in which the Court will be able to form an impression, based on that picture, that the plaintiff's claim is inflated. I am not persuaded that this is such a case.
Dr Buckley and Mr Rawling present a cogent picture of a man who may suffer significant impairment of his employment prospects due to frontal lobe damage. If that is the picture established at trial, there is plainly a prospect of the plaintiff's damages exceeding the jurisdictional limit of the District Court. It may be that their evidence will not be accepted, or that the premises they have assumed (which are clearly articulated) will not be established. I do not think that is a conclusion that can be drawn from the material relied upon by Ms Ruschen at this preliminary stage.
As to future care, Ms Ruschen submitted, again primarily by reference to subpoenaed documents, that no need for care will be established at trial because, at present, the plaintiff "manages his own finances and appears hygienic" and "is in gainful employment". In my view, it would be wrong for this Court to approach an application of the present kind on the strength of such a cursory analysis. Dr Buckley provides a carefully reasoned basis for his opinion that the plaintiff will need "another person to turn to for assistance in developing plans to maximise his quality of life and to assist him in the event that he loses his work position and requires [help] to find other work". His opinion may be accepted at trial; it may not. I do not think the opinion of an experienced medical practitioner in so complex a field of medicine can be rejected out of hand on the strength of a lawyer's analysis of the plaintiff's school and work records.
Ms Ruschen further submitted that the rate estimated by Dr Buckley for the cost of future care is inflated and that "the rate is $50 per hour." That overlooks the basis for Dr Buckley's opinion set out above. He is not referring to basic domestic care. Again, that aspect of his opinion may or may not be accepted at trial. At this stage it is enough to say there is a proper foundation for concluding that a likelihood of obtaining such an award is established.
Based on my assessment of the three main components of the plaintiff's schedule of damages, I was satisfied that the threshold in s 140(3) was met. For those reasons, I made the following orders:
1. That the proceedings in the District Court of New South Wales between the parties bearing plaint number 2004/00192285 be transferred to this Honourable Court.
2. That the pleadings in the proceedings as between the parties in the District Court of New South Wales bearing plaint number 2004/00192285 be the pleadings in this Honourable Court.
3. That the proceedings be listed for directions on 25 September 2017.
4. That the costs of the application be costs in the cause.
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Decision last updated: 03 October 2017