Neil John Espley by his tutor Anita Espley v Strathaven Holdings Pty Ltd ATF Palace Hotel Unit Trust t/as The Palace Hotel Sydney Since 1877

This application for approval of a settlement in personal injury proceedings came before me recently in the Duty list. The evidence placed before me without objection establishes the following.

On 2 October 2014, Mr Neil Espley (the plaintiff, who prosecutes the matter through a tutor for reasons that will shortly become apparent) intended to enjoy a weekend with male friends in Sydney, he residing on the Sunshine Coast.

On that Thursday evening, he was enjoying drinks in the Palace Hotel at Haymarket, which is within a historic building and was established in 1877. He sought to descend from the ground floor bar to the bathroom in the basement. Tragically, whilst using the stairs, he slipped and fell.

It was soon discovered that he had suffered a life-threatening head injury, and he was promptly taken by ambulance to St Vincent’s Hospital Darlinghurst.

Thereafter, there were complications, and he has endured more than one operation to his skull and brain. He has been left with a permanent cognitive disability, and, quite apart from its impact upon him, in the words of one medical expert the whole ordeal has been a “colossal burden” on his loving wife.

As I understand it, there is no dispute between the parties that the fall occasioned grave, permanent deficits to the plaintiff. Having said that, entirely bona fide, different experts have taken different views about the severity of his injury, its long-term prognosis, and the degree of care or supervision that the plaintiff will require for the rest of his life.

The more substantive dispute between the parties, however, is about liability.

On the one hand, evidence placed before me suggests that the stairs to the basement were (as one might expect in a historic hotel) not new and hardly pristine. There is also some evidence to suggest that they were poorly lit, that their edges were insufficiently marked, and that there may have been some chipping to those edges as well. All of that, of course, is supportive of an argument that the defendant is liable to the plaintiff in negligence, because the state of the stairway “caused” his injuries.

On the other hand, a reading of blood alcohol concentration (BAC) was taken from the plaintiff shortly after he arrived at the hospital on the evening in question. It was the remarkably high reading of .32. Although, as senior counsel for the plaintiff explained, there are ways in which the accuracy of such a reading may be able to be impugned, nevertheless, that objective reading – combined with other evidence that the plaintiff and his friends had been drinking steadily for an extended period – argues against success of the claim against the defendant in the following ways.

First, without me engaging in a detailed analysis of the provisions about causation to be found in the Civil Liability Act 2002 (NSW) (the CLA), an argument is obviously open to the defendant that it was not the state of its stairs that caused the injury; rather, it was the level of intoxication of the plaintiff.

Secondly, and separately, even if causation were able to be established, that level of intoxication could nevertheless very substantially reduce if not obliterate the claim, by way of the doctrine of contributory negligence.

Thirdly, and separately again, s 50 of the CLA could disentitled the seemingly intoxicated plaintiff to relief; again, entirely.

An entirely separate forensic problem that confronts the plaintiff, bearing as he does the onus of proof on the balance of probabilities, is that his injury has left him with no memory whatsoever of how he fell; there were no witnesses to the fall; and there is no relevant CCTV available.

The matter has been the subject of a degree of pre-trial preparation, up until the time that it was resolved between the parties by way of mediation, subject to approval of this Court.

Senior counsel for the plaintiff (who, not immodestly, told me from the Bar table that he has a long-standing expertise in matters of this kind) placed a confidential advice before me. It delved more deeply into the forensic problems that I have sketched above; for obvious reasons, I shall not do so.

He also explained that the operation of the three factors that I have set out above could render this an “all or nothing” case, in that one might expect the plaintiff, at the end of a fully contested trial, either to succeed entirely or to fail entirely. And if the latter were the outcome, one would expect of course that he would bear an enormous burden of costs. It is for those reasons, senior counsel explained, that the proposed settlement is well below the maximal claim that could be prosecuted; in a nutshell, the plaintiff, his tutor (who I understand to be his wife), and his legal advisers wish to take an understandably cautious approach to this whole litigation.

Turning to my determination, in my opinion there are many factors here that argue for caution, as follows.

First, speaking generally, in my opinion a cautious approach to litigation in which one bears the onus of proof is often appropriate.

Secondly, in what could be an all or nothing case in which the plaintiff faces undoubted legal and evidential hurdles, further caution is self-evidently sensible.

Thirdly, when costs could be catastrophic, even more caution is called for.

Fourthly, when there is a significant possibility that an undoubtedly cognitively impaired person and his spouse could be left with nothing by way of damages, on top of his permanent disabilities, plus a costs order in the tens or hundreds of thousands of dollars, that would be a disastrous concatenation.

Separately from those sound bases for caution, there is nothing to suggest that the tutor is motivated by anything other than love and support for her husband. Nor is there anything to suggest that his lawyers are motivated by anything other than a thoroughly professional desire to achieve the best outcome for their client.

Finally, I was assured by senior counsel that all of the deductions that are contained in the draft orders with which I was kindly provided are entirely orthodox and appropriate, including the measure of legal costs.

I was also assured that there is no question but that the significant sum agreed upon would be placed in the hands of a financial manager in due course.

In all the circumstances, I am soundly satisfied that I should approve this settlement, on the simple basis that it is indeed in the best interests of the plaintiff.

In conclusion, I note that, when this judgment and orders are placed on NSW Caselaw, the various sums contained in the latter will be redacted, not only to protect the privacy of the plaintiff, but also because I believe that it is not inappropriate to minimise publicity with regard to a cognitively impaired person coming into a large sum of money.

I make the following orders: