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

1. [1]

   By Summons filed 4 April 2022, the plaintiff, Scarlett Anne Robinson by her next friend Anthony James Robinson, sought an order transferring District Court proceedings (file number 2020/00313256) to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (“the Act”). The defendants are Riverina Equestrian Association (the first defendant), Equestrian Australia Ltd (the second defendant), Charles Sturt University (the third defendant) and Chloe Mannell (the fourth defendant). This application came before me in the Duty List.

Background

1. [2]

   On 4 November 2017, the plaintiff, who was then aged four years, went with her mother and another child to the NSW Country Show Jumping Championships at the premises of the third defendant. The event was organised by the first and second defendants.

2. [3]

   The fourth defendant was the rider of a horse. During the event, the horse came within a short distance to the plaintiff. It is alleged that the fourth defendant did not maintain control of the horse. The horse fell and landed on the plaintiff (“the incident”). The plaintiff suffered a number of injuries, including a total loss of hearing.

3. [4]

   Personal injury proceedings were commenced by the plaintiff by a Statement of Claim filed on 2 November 2020 in the District Court. As I understand it, there is an issue between the parties as to the duty and/or the scope of the duty owed between the defendants and the plaintiff, as well as damages.

4. [5]

   The District Court proceedings have been adjourned as to allow this Court to consider the application for transfer orders.

Relevant legislation and principles

1. [6]

   Section 140 of the Act relevantly reads:

2. [7]

   The present application hinges on the issue arising under s 140(3)(b)(i) of the Act.

3. [8]

   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:

4. [9]

   In Marincic v State of New South Wales [2017] NSWSC 272, Button J stated at [12]–[13] that:

5. [10]

   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. [11]

   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. [12]

   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. [13]

   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. [14]

   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:

5. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

    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. [21]

    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. [22]

    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. [23]

    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. [24]

    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. [25]

    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. [26]

    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. [27]

    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. [28]

    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. [29]

    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. [30]

    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. (1)

       Non-Economic Loss

    2. (2)

       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.

    3. (3)

       Future Treatment Expenses

    4. (4)

       Past Economic Loss

    5. (5)

       Future Economic Loss

Conclusion and Orders

1. [31]

   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. [32]

   Both parties agreed that costs should be in the cause. I accept that joint position.

3. [33]

   For these reasons, I make the relief claimed in the Summons, which is as follows:

   1. (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. (2)

      Pleadings in the District Court become pleadings in the Supreme Court.

   3. (3)

      The costs of the Summons be costs in the cause.