Williams v Rodway & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20268/02 Gordon Douglas Williams v Martin John Rodway & Anor

JUDGMENT 1 HER HONOUR: On 14 June 2002 the plaintiff, Gordon Douglas Williams filed a statement of claim in this Court claiming from the defendants damages pursuant to the Motor Accidents Act 1988 ("the Act"), for injuries he suffered in a motor vehicle accident on 14 June 1999. Included in the claim, as an identified head of damages, was a claim for compensation for domestic assistance, pursuant to the principles stated in Griffiths v Kerkemeyer (1977) 139 CLR 161. Through their third party insurer (NRMA Ltd, hereinafter "NRMA"), the defendants filed a notice of grounds of defence. They admitted liability for breach of duty of care and alleged that the plaintiff had contributed to his own injury; they particularised this claim. Additionally, in paragraph 3, they pleaded: "The Defendant's (sic) say that the Plaintiff's claim under paragraph 1 for domestic assistance should be dismissed in accordance with the authority of the NSW Court of Appeal in the matter of Atikulla v Sefton ." 2 By notice of motion filed on 13 December 2002 the defendants claimed orders as follows: "1. The Plaintiff's claims for domestic assistance be dismissed. 2. The matter be transferred to the District Court of NSW at Sydney."

and costs. They specified the grounds for the orders sought as: "(a) That the Plaintiff has commenced and maintained the claim for domestic assistance in breach of s50A of the Motor Accidents Act 1988 (as amended).

(b) That the Plaintiff has commenced and maintained the claim for domestic assistance in breach of the authority of the New South Wales Court of Appeal decision of Atikullah v Sefton (5.11.01).

(c) That the matter does not reach the extent of the Supreme Court jurisdiction and should be transferred to the District Court of New South Wales." 3 On the hearing of the notice of motion the defendants pursued both substantive orders, that is, the claim for the dismissal of the plaintiff's claim for domestic assistance and the transfer of the proceedings to the District Court.

the claim for damages for domestic assistance 4 Ss50A and 52(1A)(b) provide: "50A Provision of information to facilitate settlement of claim before commencing court proceedings Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of: (a) the injuries sustained by the claimant in the motor accident, and (b) all disabilities and impairments arising from those injuries, and (c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and (d) any economic losses and other losses that are being claimed as damages,

sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

and "52(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until: (a) ... (b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or (c) ...

whichever is the later or latest." 5 Both sections appear in Part 5 of the Motor Accidents Act. They are consistent with, and designed to facilitate the achievement of, the objects of Part 5 as stated in s40A which, relevantly, are to facilitate the early investigation and assessment, and promote negotiation and extra-curial resolution of claims. As pleaded in the statement of claim (and is undisputed) the accident occurred on 14 June 1999. On or about 9 December 1999 the plaintiff completed and provided to the NRMA a Personal Injury Claim Form. There followed, between March 2001 and March 2004, an exchange of correspondence between solicitors acting for the plaintiffs and the NRMA. This largely concerned the specification of the plaintiff's claim for damages. On 13 March 2002 the plaintiff's solicitors wrote to NRMA Insurance. The author of this letter identified medical reports in the possession of NRMA Insurance, noted that a settlement conference was to be arranged, and claimed to have difficulty in preparing settlement figures as a result of the plaintiff's permanent disabilities said to have resulted from the accident. S/he wrote: "Mindful of the obligation of claimants pursuant to sections 48 and 50A of the Motor Accidents Act, 1988 (as amended) we give you notice that we will be relying upon the contents of all the reports held and served as to the particulars of Mr Williams' injuries and ongoing disability." 6 S/he enclosed a document, called in the letter a "settlement sheet", and headed "Schedule of Damages". This document contained a list of heads under which damages were claimed on the plaintiff's behalf, and a quantification or estimation under each head. Two items there mentioned are of present significance. They are: " Past Griffiths v Kerkemeyer Allowance (say) $25,000 Future Griffiths v Kerkemeyer Allowance (say) $75,000" I will refer to this document as "exhibit 1". 7 It was common ground that these documents had been sent to NRMA Insurance more than 90 days prior to the filing of the statement of claim and, accordingly, no issue under s52(1A)(b) arises. The plaintiff's solicitors obtained, from Evidex Pty Ltd, a report prepared by an occupational therapist. This report is dated 5 December 2002, and thus post-dates the commencement of proceedings. It contains an assessment of "past gratuitous care" said to have been provided to the plaintiff, and a similar assessment of the plaintiff's future care needs. These were translated, in an accountant's schedule appended to the report, into a quantification of $44,920.00 referable to past care, and $200,189.00 attributable to assessed future care needs. 8 The sole issue which arises in relation to the claim for domestic assistance is whether the plaintiff's claim, as particularised, meets the requirements of s50A. That section requires, prior to the commencement of proceedings, the provision of: "full details ... of losses claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

In considering this issue, the Evidex report must be put to one side. It came into existence, and was therefore served, after the proceedings had been commenced. It thus has no bearing on the adequacy of the s50A notice. 9 S52(1A) is ruthless. It precludes the commencement of court proceedings unless and until the s50A details have been provided, and 90 days have elapsed thereafter. It makes no provision for the validation of court proceedings commenced in the absence of the provision of such detail at the proper time, even where those details may subsequently be provided. Commencement of court proceedings is dependent upon the proper provision of those details: see Atikulla v Sefton [2001] NSWCA 385; 53 NSWLR 574. 10 Thus it is that the first order claimed by the defendants hinges upon the determination of whether the information provided on behalf of the plaintiff in the letter of 13 March and exhibit 1 meet the description in s50A. 11 That question is to be decided by reference to what the insurer needs to know in order to make a proper assessment of a claimant's "full entitlement" to damages. In respect of a claim for compensation for domestic assistance, whether past or present, the particular provisions of s72(2), (3) and (4) impose restrictions on the damages that may be awarded. By sub-s(2), no damages for domestic assistance are to be awarded if the services (past or future) are required for less than six hours per week, and for less than six months. Sub-ss72(3) and (4) limit the amount that may be awarded where the services required are, respectively, not less than, and less than, forty hours per week. It is plainly essential that, in order to assess the claimant's "full entitlement" to damages under this head, an insurer be provided with, at minimum, information enabling it to evaluate the hours of assistance claimed. 12 The requirements of the section in relation to a claim for domestic assistance were considered by the Court of Appeal in Manderson v Ellis [2002] NSWCA 289; 37 MVR 214. There Santow JA, with whom Davies AJA and McClellan J (on this issue) agreed, wrote: "[45] ... there is no statement clearly identifying what his care regime should be or his future needs. In particular there is nothing directed to s72 of the Act dealing with the provision of certain home care services up to a maximum amount. Nor was there any particularisation as was eventually set out in the Pt 9 r27 Particulars. The position is further complicated by the difficulty of separating any pre-existing condition in terms of mental deficit, and the effect of the accident. The Respondent's advisors are not entitled to lead the insurer to believe that the claim for loss is at a lesser level and then sue for a whole additional set of damage claims. The legislation does not require the insurer to divine for itself from the hospital notes and the like that such claims could be expected. That defeats the object of pre-trial settlement being encouraged, on the basis of a known claim with the relevant items of damage. Their very omission from what purported to be the s50A particulars would rather have led the insurer to conclude that these items were not claimed." (emphasis in original) 13 In that case no claim for damages in relation to domestic assistance was made in the original s50A notice. That is not here the case. But that does not mean that the observations of Santow JA in paragraph 45 are not material. There was here no statement clearly identifying what the plaintiff's care regime should be, or what his future needs were expected to be. There was nothing to enable even the most cursory assessment of the hours of assistance which the plaintiff had received in the past, or was expected to need in the future, sufficient to enable NRMA insurance to consider its position in the context of s72. Exhibit 1 was sent to the NRMA in March 2002, almost three years after the plaintiff was injured. It must have been possible, by then, to formulate a claim by reference to his care needs, in the past, and anticipated for the future. 14 A similar circumstance arose in Atikulla. In that case, in response to a request for particulars made by the insurer, the plaintiff's solicitors had expressly disavowed any claim for damages for "household services", but subsequently sought to pursue such a claim. Hodgson JA, with whom Sheller JA and Ipp AJA agreed, found that the commencement of the proceedings in the absence of reference to the domestic assistance in the s50A notice rendered that part (if not the whole) of the claim invalid but that the claim for domestic assistance was severable. The Court struck out that claim but left the balance of the statement of claim extant. 15 Counsel who appeared for the plaintiff argued that the quantification contained in exhibit 1 was adequate for the purposes of s50A. I reject that submission. I have already given reasons for concluding that the particulars provided were inadequate to meet the purposes specified in the section. 16 Although I consider that it operates harshly on a plaintiff (who is, generally, entirely dependant upon the due attention to their duty of his/her legal representatives) I have no option but to adopt the course taken by the Court of Appeal in Atikulla. The claim for domestic assistance will be struck out of the statement of claim.

transfer to District Court 17 S143 of the District Court Act 1983 relevantly provides: "143 Transfer of proceedings from Supreme Court

(1) Where the Supreme Court is of opinion that any proceedings that are pending in the Supreme Court could properly have been commenced as an action in the [District] Court, the Supreme Court may, if it thinks fit, on the application of any party or of its own motion, order that those proceedings be transferred to the [District] Court sitting at such proclaimed place as the Supreme Court thinks fit. ... (5) Without limiting any power of the Supreme Court under this section, the Supreme Court may, at any time after the commencement and before the hearing of the action, consider any action for damages in respect of personal injury or death, in order to determine whether an order under this section transferring the proceedings ought to be made. Having considered the action, the Supreme Court is to make such an order unless: (a) in the case of a motor accident claim ... the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance, or (b) ..." 18 It will be seen that a motor accident claim is required to be transferred to the District Court unless two tests are met. The first is that it is likely that the plaintiff, if successful, would be likely to be awarded damages in excess of $1,000,000. The second is that the case involves complex legal issues or issues of general public importance. 19 The admission by the defendants of breach of duty of care means that Williams is virtually assured of being awarded some damages. The assertion of contributory negligence on his part adds a further element of uncertainty to the already uncertain exercise of predicting the quantum of damages which he could reasonably expect. In order to permit a reasonable assessment of the quantification of damages, I was directed to medical reports, the Evidex report to which I have already referred, and a subsequent report by the same organisation, dated 11 December 2002. I am not, of course, in a position to make any assessment concerning credibility, nor, where there is a conflict in the medical evidence, the resolution for that conflict. Bearing that in mind, it is necessary, using a relatively broad brush approach, to reach as informed a view as is possible as to the likely quantification of the damages likely to be awarded to the plaintiff. It is also necessary to factor into that exercise, to the extent that it can feasibly be done, the issue of contributory negligence. 20 The evidence shows that the plaintiff was born on 21 October 1961. He was therefore 38 years of age at the time of his injury. In his initial claim form he gave his occupation as "sickness pension after accident". 21 The report of the Sutherland Hospital, where the plaintiff was taken by ambulance following the accident, is relevantly as follows: "On examination he was awake and alert and haemo-dynamically stable. There was no evidence of head, neck or spinal injury otherwise. Upper limbs were satisfactory as was chest and abdomen. There was slight tenderness about the right sacro-iliac joint and both hips appeared non-tender. The right lower limb was normal but there was an approximately 6 cm long curved irregular laceration super-medial to his left knee, which extended through fatty tissue. There were no distal neuro-vascular deficits in the left lower limb. ... The attending doctor sutured laceration of his left thigh and he was given analgesia as required and discharged home at approximately 3.45 hours the same evening taking oral antibiotics. He was also given crutches and was advised to seek follow up by his local doctor in approximately two days' time ... " 22 On 5 July 1999 the plaintiff was examined by Dr John Garvin, an orthopaedic surgeon, at the request of NRMA insurance. Dr Garvin reported to NRMA insurance on 24 July 2000, not having seen the plaintiff since the date of examination. Dr Garvin reported in terms consistent with the report of the Sutherland Hospital. However, in December 2000 the plaintiff's general practitioner referred him to Dr Garvin for assessment or treatment. When reporting to Dr Tyrrell, Dr Garvin referred to a left shoulder injury as well as the knee injury. 23 Later reports reveal a more complex medical history than is suggested in these reports. In October 2002 Dr Ronald Penny reported that the plaintiff had been an injecting drug user (but still working and playing rugby) until 1995 when he undertook a methadone rehabilitation course; that, in 1998 (that is, prior to the accident) he had had a liver biopsy and was diagnosed as positive to hepatitis C and awaiting the commencement of treatment with Interferon; and significant staphylococcal infection in varying sites at least three or four times a year with prolonged recovery and quite a degree of debility. 24 Late in 2002 the plaintiff was referred to Dr Grahame Mahony (whose specialty does not appear from his reports). Dr Mahony reported on an examination of the plaintiff's left shoulder, back and left knee. He assessed the plaintiff as having a 45% permanent loss of the efficient use of the left arm at and above the left elbow; 10% impairment of the back; and 40% permanent loss of efficient use of the left lower leg at and above the knee. Dr Mahony also referred to chronic staphylococcal infections and considered that this rendered the plaintiff susceptible to a high chance of developing an infection were he to undertake surgery. He considered the plaintiff to be unfit for work. 25 On behalf of the plaintiff it was submitted it could be seen that the plaintiff's staphylococcal infection prevented him from having surgery that would or might remediate the effect of the injury, and that this would be likely to increase the damages to which he would be entitled. It would be quite inappropriate to make any finding on this issue. The best I can do is to bear in mind that an issue is likely to arise concerning the effects of the accident upon the plaintiff's physical condition and the separation of the conditions from which he suffers which are not associated with or attributable to the accident. 26 The plaintiff also makes a claim for wage loss which is alternatively quantified in the Evidex report. An issue arose as to the quantification of the plaintiff's losses in this respect. The Evidex report asserts the plaintiff's annual (gross) earnings for 1996, 1997, 1998, as, respectively, $24,700, $32,300 and $47,500. In 1999 (the year of the accident) his earnings were $12,350. It will be recalled that, as at the date of his claim form, the plaintiff stated that he was in receipt of a "sickness pension" as the result of accidents. 27 Averaging his earnings for the four year period, the plaintiff's claim in the Evidex report is shown as $560.24 (gross) per week. Counsel for the defendants contended that only the figure in relation to 1999 is relevant for the calculation of the plaintiff's past and future wage loss. In the absence of evidence as to the basis for the plaintiff's being in receipt of a sickness benefit, I would not accept this contention. It may well be the case that, had the accident not occurred, the plaintiff's incapacity for work would have been temporary. I simply do not know and am not in any position to make a judgment. 28 That may be so, but s143(5) of the District Court Act does not permit me to avoid the issue. I am required to decide whether the damages to be awarded to the plaintiff would be likely to exceed $1,000,000. I emphasise that I make no concluded finding on this issue. However, having said that, I am unable to come to the view the damages the plaintiff would be awarded would be likely to exceed $1,000,000. I say that without factoring in considerations of contributory negligence. Of course, a trial judge, who will be vastly better informed that I, may come to a different view. 29 That is sufficient to bring into operation the dictates of sub-s(5) without turning to the second limb of sub-s(5)(a). In that regard I will be brief. When asked to elucidate the "complex legal issues" or "issues of general public importance", counsel for the plaintiff referred to the obligations of insurers under the Act to implement the objectives of the Act in return for their acceptance of premiums from motorists whom they insure. Just how that could be expected to become an issue in the determination of the plaintiff's claim was never explained. 30 Pursuant to the differential case management regime operating in this Court, the plaintiff's solicitor had filed, with the statement of claim, his DCM document. In that document the plaintiff asserted that: "There are no 'special feature' (sic) of the plaintiff's claim that may affect the complexity or length of the trial." 31 That assessment accords with the impression I have formed. It may well be that the case raises some medical issues of relative complexity. But such issues are not included in the exceptions to the requirement of sub-s5(a) that a motor accident claim be transferred to be heard in the District Court. No "complex legal issues" were identified, nor were any "issues of general public importance" likely to arise for determination. 32 I am satisfied that the claim should be transferred to the District Court. 33 The orders I make are:

(i) The plaintiff's claim for domestic assistance be struck out.

(ii) The claim be transferred to the District Court. **********

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