Pearson v Nepean Blue Mountains Heal District

1. [1]

   HER HONOUR: This judgment concerns a review of a registrar’s decision not to transfer proceedings from the District Court to this Court.

2. [2]

   By notice of motion filed 15 May 2020, the plaintiffs seek firstly, an order pursuant to rr 49.19 and 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the decision of Registrar Jones (“the Registrar”) dated 20 April 2020 be reviewed; and secondly, that the decision be set aside, varied or discharged and in lieu thereof that the Court order that proceedings 2018/164495, 2018/164504 and 2018/164490 be transferred from the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

3. [3]

   The first and second plaintiffs are Robert and Elizabeth Pearson. The first defendant is the Nepean Blue Mountains Local Health District (“Nepean”). The second defendant is the Western Sydney Local Health District (“Western Sydney”). The third and fourth defendants are Drs Ronald Chin and Peter Flynn. The parties relied upon a joint court book.

Background

1. [4]

   On 25 May 2015, Olympia Pearson (“the deceased”) suffered a fatal respiratory and cardiac arrest after her tracheotomy tube dislodged in her home. She was 56 years old. Her husband is the first plaintiff in these proceedings, and the second plaintiff is her third daughter.

2. [5]

   The plaintiffs allege that the deceased’s condition was negligently managed for about 2 years and 9 months prior to, and at the time of, her death. They brought proceedings against the defendants in the following capacities:

   1. (1)

      Nepean, as the local health district with the care and control of the Nepean Hospital;

   2. (2)

      Western Sydney, as the local health district with the care and control of Westmead Hospital;

   3. (3)

      Dr Chin, as the specialist ENT surgeon who treated the deceased at Nepean Hospital and at his private rooms in Penrith, NSW; and

   4. (4)

      Dr Flynn, as the specialist cardiothoracic surgeon who treated the deceased at Nepean Hospital.

3. [6]

   There are three claims brought against the defendants. The first two claims are brought by the first plaintiff. He filed statements of claim in the District Court as follows:

   1. (1)

      in proceedings 2018/00164495 seeking damages pursuant to the Compensation to Relatives Act 1897 (NSW) on behalf of himself and his four daughters, Natasha, Maryanne, Elizabeth (the second plaintiff) and Gabrielle Pearson, as well as his granddaughter, Luna Fitzgerald, daughter of Maryanne Pearson (“the compensation to relatives claim”); and

   2. (2)

      in proceedings 2018/164504 for nervous shock resulting from his wife’s death (“the first plaintiff’s nervous shock claim”).

4. [7]

   The third claim is brought by the second plaintiff in these proceedings. She filed a statement of claim in the District Court in proceedings 2018/164490 for nervous shock as a result of her mother’s death (“the second plaintiff’s nervous shock claim”).

Review of the Registrar’s decision

1. [8]

   The power of the Court to review the Registrar’s decision is contained in UCPR 49.19. It reads:

2. [9]

   A review pursuant to UCPR 49.19 is not an appeal and is not subject to the restrictions that apply to appeals. It is a hearing de novo: see Tomko v Palasty (No 2) [2007] NSWCA 369 (“Tomko”). It is not incumbent upon the applicant for review to demonstrate a material error of either fact or principle in the Registrar’s judgment under review: Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 at 34-40. Rather, the applicant must show that there is a reason to depart from the Registrar’s decision: Tomko at [7]. The Court on review is to make its own decision, having regard to the material that was before the Registrar and such further evidence as the Court permits to be adduced: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115.

3. [10]

   As such, in conducting this review I am to inform myself of all material that was before the Registrar in addition to her decision, and make my own decision based on the material before me after having the benefit of counsel’s submissions. The parties did not seek to rely upon any additional evidence.

Issues before the Registrar

1. [11]

   The plaintiffs sought to transfer these proceedings from the District Court to this Court on several bases. It is their position that the case involves complex medical and legal issues relating to the recoverability of services under the Compensation to Relatives Act, in addition to reputational considerations of the medical practitioners involved. The plaintiffs are of the view that the nervous shock claims should be heard together with the compensation to relatives claim, and that they are substantial, regardless of whether they will exceed $750,000 in quantum. They submitted these reasons are sufficient to transfer the proceedings to this Court.

Transfer

1. [12]

   Pursuant to s 140 of the Civil Procedure Act, the Supreme Court has the power to order the transfer of proceedings commenced in the District Court to the Supreme Court.

2. [13]

   Section 140 of the Civil Procedure Act reads:

3. [14]

   The jurisdictional limit of the District Court in these types of proceedings is $750,000.

4. [15]

   The approach to the likely assessment of damages for the purposes of s 140 is set out in a number of decisions, including Dodd v Wentworth Community Housing Limited [2017] NSWSC 1424 (“Dodd”), Scott Anthony Highland v Yarrahapinni Holdings Community House Inc [2020] NSWSC 12 (“Highland”) and Tauri v Janlin Circuses Pty Ltd (t/as Stardust Circus) [2017] NSWSC 1337 (“Tauri”).

5. [16]

   In Tauri, McCallum J stated at [7]:

6. [17]

   In Highland, Henry J stated at [18]:

7. [18]

   As the compensation to relatives claim and the two nervous shock claims have same facts relating to liability and overlap in respect of damages, all three proceedings should be heard together in accordance with s 56 of the Civil Procedure Act. In other words, if the compensation to relatives claim is transferred to this Court for determination, the two nervous shock proceedings should travel with it.

The Registrar’s decision dated 20 April 2020

1. [19]

   At the hearing before the Registrar, the defendants neither consented nor opposed the transfer. They have adopted the same position in the review in this Court. The defendants tendered medical reports before the Registrar, which I have taken into account.

2. [20]

   The Registrar’s reasoning is set out at [9], where she stated:

3. [21]

   The Registrar set out the correct test. She then considered the compensation to relatives claim, followed by the nervous shock claims. I will address them in the same order.

4. [22]

   The plaintiffs’ compensation to relatives claim includes the first plaintiff’s claim on his own behalf, and the claims on behalf of his (and the deceased’s) four daughters and granddaughter. The damages in the compensation to relatives claim alone total $1,318,195.51 plus costs, comprising of:

5. [23]

   The Registrar principally dealt with the compensation to relatives claim at paras [10] and [11] of her reasons. Having considered the plaintiffs’ submissions, she was not satisfied that the potential quantum of the claim would exceed the $750,000 jurisdictional limit of the District Court.

6. [24]

   The Registrar gave three primary reasons for dismissing the plaintiffs’ application. The first was that in her view, the effect of the decision in Coote v Kelly [2016] NSWSC 1447 (“Coote”) was that the first plaintiff could not claim for non-financial loss or loss of domestic services. The second was that even if Coote was held not to apply at trial, it was still her view that the plaintiffs’ entitlement to damages for past and future loss of the deceased’s services would be significantly less than the amount claimed, with reference to the decision of Nguyen v Nguyen (1990) 169 CLR 245 (“Nguyen”) (per Brennan J). Finally, the Registrar stated that in her view, the plaintiffs’ claim was inflated.

7. [25]

   The plaintiffs submitted that each of these conclusions involved legal error. I will consider their submissions as follows.

8. [26]

   The Registrar’s considered the effect of Coote as follows:

9. [27]

   It was the Registrar’s view that the first plaintiff was not entitled to claim for past non-financial loss or loss of domestic services, as the decision in Coote and the operation of s 15(2) of the Civil Liability Act excluded his entitlement to damages for gratuitous attendant care services where the provider of the services had died.

10. [28]

    In Coote, Davies J, after setting out ss 11 and 15 of the Civil Liability Act, stated at [175]-[176] and [178]:

11. [29]

    The plaintiffs submitted that the Registrar’s application of Coote amounted to a summary dismissal of that aspect of their claim claim, in circumstances where the plaintiffs had an arguable case.

12. [30]

    Further, the plaintiffs submitted that Davies J’s finding concerning compensable services in Coote was merely obiter, and the relevant law has not been authoritatively determined by an appellate court. Davies J had held that the services were not compensable in Coote at [126] and [137], but at [138], did not need to determine damages. Further, the plaintiffs submitted that the reasoning in Coote was based on the minority judgment of Brennan J in Nguyen, where he stated that the principles from Griffiths v Kerkemeyer (1977) 139 CLR 16; (1977) 15 ALR 387 also apply to the assessment of loss of services claims under the Compensation to Relatives Act. However, the plaintiffs submitted that the majority in Nguyen had considered that Griffiths v Kerkemeyer had “nothing to say” in relation to such claims. It is the plaintiffs’ submission that in relation to domestic services, Coote was wrongly decided, and it is appropriate for this aspect of the claim be determined by the Supreme Court.

13. [31]

    The plaintiffs submitted that Coote should only have been applied under circumstances where the law was clear and unarguable, referring to the principles in General Steel Industries Inc v New South Wales (1967) 40 ALJR 464 applicable to summary judgments. They argued that on the contrary, the significant legal issues arising from Coote provided yet another reason to transfer the proceedings.

14. [32]

    The second reason the Registrar gave for dismissing the plaintiffs’ application was that even if Coote were found not to apply, the first plaintiff’s entitlement to damages for past and future loss of the deceased’s services would be significantly less than the amount claimed.

15. [33]

    The Registrar referred to Nguyen, where Brennan J listed the relevant considerations as including the following:

    1. (1)

       the “balance of the loss”, being the entire family situation before the death, compared with the entire family situation after the death, including a recognition that:

    2. (2)

       the prospect that the first plaintiff may remarry/recouple;

    3. (3)

       the extent to which any children may have taken up the household duties previously performed by the deceased; and

    4. (4)

       the proportionality of the claim for damages for past and future loss of the deceased’s services, compared with the first plaintiff’s injuries sustained as a result of her death.

16. [34]

    The plaintiffs submitted that in considering the factors from Nguyen, the Registrar’s made the following errors.

17. [35]

    First, the plaintiffs submitted that there was no basis on which the Registrar should have reduced the 28 hours claimed, as they had already allowed for the balance of the loss. For example, the deceased’s absence from the home would not reduce the time required to complete many domestic chores as, for example, it would take as long to cook a roast dinner for one person as for two, or to vacuum the house with only one person living there. Further, the plaintiffs submitted that the Registrar’s finding that the first plaintiff “will reasonably be expected to adjust his lifestyle” to mitigate his loss was based on the minority opinion in Nguyen. As such, this was an issue more appropriately to be dealt with at trial.

18. [36]

    As to the prospect that the first plaintiff may recouple, the plaintiffs submitted that this is arguably a consideration that no longer applies: De Sales v Ingrilli (2002) 212 CLR 338; (2002) 193 ALR 130. In any event, they submitted that there was no evidence to suggest that the first plaintiff might remarry, or when, or that that partnership would sufficiently replace the services lost so as to bring the claim under the jurisdictional limit.

19. [37]

    As to whether the children would take take up some of the household duties previously performed by the deceased, the plaintiffs submitted that there was no evidence that the children had the interest, desire, or ability to do so. Further, it is arguable that in Nguyen, the Court held that it was irrelevant to the entitlement to damages that the claimed needs are met through the voluntary assistance of relatives and friends.

20. [38]

    Finally, the plaintiffs submitted that the Registrar’s consideration of the proportionality of the claim for damages compared with injuries sustained as a result of the deceased’s death also involved an error of law, because the compensation to relatives claim compensated for the loss to the first plaintiff, not a replacement for a created need. If the first plaintiff had suffered an injury as the result of the deceased’s death, as alleged in the nervous shock claim, then the need for services due to that injury would be compensable in the nervous shock claim.

21. [39]

    The first plaintiff submitted that the Registrar’s findings in relation to Nguyen were wrong. It is arguable that the plaintiffs can maintain their claims on the majority views expressed in Nguyen, and it was inappropriate on an application for transfer for the Registrar to determine that legal issue.

22. [40]

    In Nguyen at [11] to [14] (Dawson, Toohey & McHugh JJ), the majority stated:

23. [41]

    The first plaintiff noted that while it is true that Brennan and Deane JJ in Nguyen took a less expansive view, favouring restrictions based on either mitigation, the principles in Griffiths v Kerkemeyer, or some special need (per Deane J at [10]), they were in the minority on these issues.

24. [42]

    Finally, the Registrar held that in her view, the plaintiffs’ claim was unlikely to exceed the jurisdictional limit of the District Court. This was because the Registrar took the view, after analysing the reports of two psychiatrists, Drs Bertucen and Roberts, that the plaintiffs’ claim was inflated.

25. [43]

    The Registrar set out the evidence of Dr Bertucen at [14] of her decision. Dr Bertucen had opined that the first plaintiff suffered a major depressive disorder, chronic post-traumatic stress disorder and a complex persistent bereavement syndrome as a result of the deceased’s death. However, he remained motivated to complete a master’s course and had been looking after his granddaughter three days per week. Dr Bertucen recommended 6 to 9 months’ treatment from a psychiatrist.

26. [44]

    The defendant’s psychiatrist, Dr Roberts, held a different view. He said that the first plaintiff suffered a persistent depressive disorder as a result of the deceased’s death, and would require antidepressant medication and psychiatric/psychological treatment for about 12 months, as well as domestic care and assistance from his daughter for 10½ hours per week for the next 12 to 24 months.

27. [45]

    On the basis of this evidence, the Registrar made a finding that the plaintiffs’ for damages was entirely disproportionate to the first plaintiff’s alleged injuries and disabilities resulting from the deceased’s death.

28. [46]

    The plaintiffs’ submitted that the Registrar fell into error by assessing the plaintiffs’ entitlement to pecuniary loss, not by reference to the first plaintiff’s loss, but by reference to his psychological injury and the need it created. This approach erroneously conflated the first plaintiff’s two claims.

29. [47]

    I will now set out a summary of the first plaintiff’s daughters’ dependent compensation to relatives claims, and the relevant submissions.

30. [48]

    The plaintiffs estimate Maryanne’s damages to be $167,702.07, which includes $138,345.80 for past and future loss of the deceased’s child care services.

31. [49]

    The plaintiffs submitted that the Registrar denied Maryanne’s dependent claim on the basis of Coote, and because the first plaintiff had been caring for Maryanne’s child 3 days per week. The plaintiffs submitted that the Registrar erroneously delved into factual issues by finding that “I expect the Court would likely accept that [the first plaintiff] has taken up the child care responsibilities which were previously provided to Maryanne by the deceased and will continue to do so”. For the reasons submitted in relation to the first plaintiff’s claim, the plaintiffs submitted that this consideration is irrelevant. Further, if this were to reduce Maryanne’s entitlements, it would only increase the first plaintiff’s entitlements. Moreover, the finding represented an impermissible determination of the claim before evidence.

32. [50]

    The plaintiffs estimate Natasha’s component of the damages at $214,524.25, which includes a claim of $185,167.36 for future loss of the deceased’s child care services.

33. [51]

    They submitted that the Registrar denied Natasha’s claim because “there was no evidence to suggest that [the first plaintiff] would not perform childcare for Natasha’s children, if any, in place of any assistance that would otherwise be provided by the deceased”. Again, the plaintiffs submitted that the Registrar impermissibly determined the claim, rather than assessing whether damages were likely to exceed the jurisdictional limit.

34. [52]

    Elizabeth’s claim for damages is $161,025.21, which includes a claim for $131,668.32 for future loss of the deceased’s child care services.

35. [53]

    As to Gabrielle, although the plaintiffs submitted that the Registrar did not make adverse findings in her regard, I disagree. The Registrar stated that Gabrielle’s claim of $148,788.09 did not appear to be pressed in part, and that her claim was for $29,356.89 for past and future loss of financial benefits.

36. [54]

    I acknowledge that there may be some delay in the allocation of a hearing date if these matters are transferred from the District Court to this Court. However, at trial, the plaintiff will argue that the decision of Coote is wrong and that the Registrar’s application of Nguyen is wrong. These arguments are best dealt with in the Supreme Court, a court of record. At trial, one or both of the plaintiffs’ arguments may fail. However, the first plaintiff should not be prevented from bringing his case on this basis, as if it turns out he is successful on both or either issue at trial, his damages will likely exceed the jurisdiction of the District Court. This argument alone is sufficient reason to transfer the proceedings from the District Court to this Court.

37. [55]

    As to the Registrar’s view of the first plaintiff’s psychiatric state, she formed the view that his claim was inflated and did not warrant a transfer to the Supreme Court. The amount awarded for his psychiatric injury will largely depend on whether or how much of his evidence is accepted at trial.

38. [56]

    The Registrar correctly identified that the question of whether the amount to be awarded is likely to exceed the jurisdictional limit of the District Court involves an impressionistic consideration of the evidence: see Dodd at [16]; Scott Anthony Highland v Yarrahabi Holdings Community House Inc [2020] NSWSC 12 at [18]. However, I have arrived at a different decision. With respect, in my view, the Registrar has gone beyond taking an impressionistic view. She has delved into the assessment of damages and the chances of success of the legal arguments that counsel for the plaintiffs intends to rely upon at trial. As such, the decision of the Registrar should be set aside.

39. [57]

    The Registrar also considered the first and second plaintiffs’ nervous shock claims. While it is not necessary for me to deal with them, I shall give some brief reasons in relation to the relevant submissions.

40. [58]

    The first plaintiff provided the following schedule of damages:

41. [59]

    At [15] of her reasons, the Registrar stated that she was not required to conduct an individual assessment of each of the heads of damage in order to determine the likely award of damage. However, she stated that she had seen “no evidence to suggest that the injuries and disabilities allegedly suffered by [the first plaintiff] would sound in non-economic loss damages of $254,000”, which was 40% of a most extreme case. This was because even on his own evidence, the first plaintiff had not required any hospitalisation or extensive treatment for his psychiatric condition, and was functional in studying and caring for his granddaughter.

42. [60]

    The Registrar also did not think the first plaintiff’s injuries would sound in past and future domestic assistance in the amount of $543,879. She noted that neither party to the proceedings had served evidence from an occupational therapist. In reference to Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [93]; Lazare v City of Sydney Council and Others [2015] NSWSC 1456 at [49], the Registrar concluded that the admissibility of domestic assistance evidence given by psychiatrists would likely be called into question, and their evidence given little weight. Moreover, on balance, the Registrar was of the view that the first plaintiff’s symptoms “will abate with time and on the defendants’ evidence of Dr Roberts, his need for assistance will progressively diminish over a 24 month period”.

43. [61]

    As such, the Registrar was not satisfied that the damages claimed would exceed the jurisdictional limit of the District Court.

44. [62]

    The second plaintiff provided the following schedule of damages:

45. [63]

    In her decision at [18], the Registrar referred to the evidence of Dr Bertucen, who gave the opinion that the second plaintiff suffered from a major depressive disorder and complex persistent bereavement disorder as a result of the deceased’s death. He stated that she was demotivated and reclusive, but had managed to complete a Bachelor of Arts degree. He recommended 6 to 9 months’ treatment from a psychiatrist. The Registrar also referred to the evidence of Dr Roberts, who gave the opinion that the second plaintiff suffered from a persistent depressive disorder as a result of the deceased’s death, but that her condition had improved, and on that basis, she “could in due course be expected to return to her pre-injury functioning”.

46. [64]

    At [19], the Registrar stated that on the balance of the psychiatric evidence, “there is nothing to suggest” that the second plaintiff’s alleged injuries and disabilities would sound in the amount of non-economic loss damages claimed. The Registrar noted that the second plaintiff had not required any hospitalisation or extensive treatment, and had been continuing to function in various aspects of her life including her tertiary studies. The Registrar appears to have accepted the psychiatrists’ opinions that the second defendant’s prognosis was that she would return to normal functioning.

47. [65]

    The Registrar concluded that in each of the compensation to relatives claims, the proceedings have been protracted and subject to extensive timetabling. If the transfer application were allowed, it will likely result in a delay of the proceedings to 2021 or even 2022.

48. [66]

    As stated earlier, it is my view that the plaintiffs’ nervous shock claims and compensation to relatives claim should be heard together, as they involve overlapping evidence. As I have already determined that the compensation to relatives claim should be transferred to the Supreme Court, for that reason alone the two nervous shock claims should travel with it.

49. [67]

    As to the Registrar’s decision, it may be that the plaintiffs’ claims in relation to their psychiatric injuries are inflated. However, as with the compensation to relatives claim, determining the award for the plaintiffs’ psychiatric injuries will depend on whether their evidence is accepted at trial. Again, it is my view that in dismissing the plaintiffs’ nervous shock claims, the Registrar did not form an impressionistic view, but adopted a more stringent approach to the evidence closer to that of a summary judgment. In the exercise of my discretion, I have arrived at the view that there is a real chance that the plaintiffs may recover more than $750,000 if successful. Hence, I set aside the decision of the Registrar dated 20 April 2020. In lieu, I order that the compensation to relatives and nervous shock claims be transferred from the District Court to this Court.

Costs

1. [68]

   The first plaintiff seeks his costs of the notice of motion. The defendants oppose an order for costs. Costs are discretionary. As the Registrar’s decision has been set aside, it is my view that the appropriate order for costs is that costs be costs in the cause.