Lazare v City of Sydney Council and ors.

By summons filed on 11 September 2015 the plaintiff seeks (inter alia) an order that two separate sets of proceedings brought by her in the District Court against a total of four defendants be transferred to this Court.

The first and third defendants opposed the application. The second defendant did not oppose it and the fourth defendant took a neutral position. The principal submissions in opposition to the application were made on behalf of the third defendant, and were adopted by the first defendant.

In support of the summons counsel for the plaintiff relied on two affidavits of Angelica Leanne Villar, the first of 28 September 2015 and the second of 29 September 2015. Counsel for the plaintiff also tendered correspondence which had passed between the plaintiff’s solicitors and those acting for the first, second and third defendants. I will return to the contents of some of that material in due course.

The third defendant relied upon an affidavit of Katherine Ann Ruschen of 1 October 2015.

The plaintiff alleges that on 18 September 2009, whilst employed by the fourth defendant (who operated a recruitment/employment agency), she was present at premises occupied by the first defendant, at which the second and/or third defendant performed cleaning services. The plaintiff alleges that at that time she fell and injured her neck, right shoulder, back and head. It is the plaintiff’s case that as a consequence of her fall, she has undergone three separate surgeries namely:

The plaintiff also alleges that she suffered psychological injuries as a consequence of her fall.

The plaintiff originally commenced proceedings in the District Court against the first, second and third defendants. Following her surgery in June 2014 she was assessed as having a whole person impairment in excess of 15% which gave her the right to commence proceedings for damages against the fourth defendant. A mediation took place on 11 November 2014 but was not successful in settling the plaintiff’s claim against the fourth defendant. By the time the plaintiff commenced proceedings against the fourth defendant the limitation period had expired. Leave was subsequently granted by Judge Hatzistergos in the District Court allowing the plaintiff leave to maintain those proceedings.

The proceedings against the first, second and third defendants were commenced on 17 September 2012, more than three years ago. Paragraph (10) of the defence filed by the third defendant on 24 September 2013 was in the following terms:

Following the commencement of the proceedings there were various directions hearings in the District Court at which orders were made requiring the plaintiff to file and serve evidentiary material.

At a directions hearing on 11 April 2014, the plaintiff was ordered to serve, by 30 May 2014, reports obtained from Dr Conrad and Dr Bodel. She failed to comply with that order. Reports of Dr Conrad (dated 3 April 2014) and Dr Bodel (dated 18 April 2013) were served on 5 June 2014.

On 6 June 2014 the matter was placed in the “inactive list” in the District Court for a period of 6 months, seemingly on account of the plaintiff’s surgery. At a directions hearing on 4 December 2014, approximately 5 months after that surgery, the plaintiff was ordered to serve any refresher medical evidence by 30 January 2015. On that day, the plaintiff’s solicitor forwarded an email to the solicitors for the first, second and third defendants stating:

It would appear, on the evidence before me, that there was no formal response to that communication from the representatives of any of the defendants who were then parties to the proceedings. However, at a directions hearing on 13 February 2015 the time for the plaintiff to serve her refresher medical evidence was extended to 10 April 2015. The plaintiff complied with that order by serving reports of Dr Conrad (dated 25 February 2015), Dr Bodel (dated 7 April 2015) and Dr Clark (dated 18 March 2015). At that same directions hearing, the proceedings were listed for trial commencing on 2 November 2015, with an estimate of 5 days. That trial date was subsequently confirmed at a further directions hearing on 16 July 2015.

A further directions hearing took place on 11 September 2015, at which time the plaintiff foreshadowed the present application. The application was in fact filed in this Court on that day.

Orders were also made in the District Court requiring the plaintiff to serve a final statement of particulars. Initially, the plaintiff was ordered to do so by 3 March 2014. That was later extended until 30 January 2015. It was extended again until 10 April 2015. It was extended yet again until 18 September 2015. The particulars were finally served on 29 September 2015.

Annexed to the second of Ms Villar’s affidavits is a schedule of damages (“the schedule”) prepared by counsel who is retained on behalf of the plaintiff. That schedule assesses the plaintiff’s damages as follows:

The total of the schedule is stated as $1.276 million. It is in fact $1,316,508.00. Further, and in light of the submissions made by the parties, two particular matters should be noted in respect of the schedule. Firstly, the calculation of past and future economic loss is based upon a loss of $1,300.00 per week. Secondly, the calculation of future domestic assistance is based upon a need for 4 hours of assistance per week. I will return to these matters in due course.

Various medical reports were annexed to the second of the affidavits of Ms Villar, and to the affidavit of Ms Ruschen. I was taken, in particular, to the following parts of that evidence:

Initially, counsel for the plaintiff submitted that the procedural history of the matter was irrelevant to my determination of the present application. However, counsel ultimately withdrew that submission and accepted that such history was relevant, although not determinative. Counsel candidly accepted there had been delay on the part of the plaintiff in bringing the present application. Whilst he described it as “regrettable”, he submitted that the extent of such delay, and the extent of the plaintiff’s failures to comply with orders of the District Court, were of less gravity in comparison to other instances where this Court has been asked to determine an application to transfer proceedings. In this regard, counsel took me to various aspects of the history of the proceedings which, he submitted, placed the delay, and the plaintiff’s failures to comply with orders, in their proper context.

Firstly, counsel pointed to the fact that the proceedings had been placed in the “inactive list” in the District Court for a period of six months following the plaintiff’s surgery in July 2014. He submitted that this was an obviously significant period of time, and one which provided part of the context in which any procedural issues should be considered.

Secondly, counsel pointed to the fact that at the end of the “inactive period” the plaintiff’s solicitor had written to those acting for the first, second and third defendants (in the terms set out at [11] above) acknowledging that further time would be needed for the service of updated medical evidence, and seeking the indulgence of the defendants in that respect. Counsel submitted that in those circumstances, this was not “a case of just flagrant ignoring of a Court order”.

Thirdly, in terms of the bringing of the present application, counsel for the plaintiff submitted that the summons was filed in accordance with a timetable set by the District Court at the directions hearing on 11 September 2015. He also pointed to the fact that it was not until September of this year that leave was granted to the plaintiff to maintain the proceedings brought against the fourth defendant. Counsel submitted that the granting of that leave was a material factor in the advice given to the plaintiff to bring the present application. He also pointed to the fact that the plaintiff’s solicitors had previously sought to ascertain the position of the defendants as to the jurisdiction of the District Court being extended, but that no response had been received from any of them.

Ultimately, counsel for the plaintiff accepted that the delay in bringing the application was to be viewed in terms of years rather than months. He also accepted that there had been failures on the part of the plaintiff to comply with orders of the Court requiring the service of evidence and particulars. However he submitted that, all other things being equal, such considerations should not operate to defeat the present application.

In terms of the plaintiff’s likely damages, counsel pointed to a number of matters.

Firstly, he highlighted the fact that the plaintiff had undergone three separate surgeries, the last being a spinal fusion. This, he submitted, was reflective of the seriousness of the plaintiff’s condition, and her entitlement to substantial damages.

Secondly, he pointed to the fact that the plaintiff alleged psychiatric as well as physical injury. He relied upon the fact that on that basis alone, Dr Clark had assessed the plaintiff as having substantial whole person impairment.

Thirdly, counsel submitted that the plaintiff had an entitlement to substantial damages for domestic assistance, particularly in respect of paid care for the future.

Finally, counsel pointed to the fact that the Workers Compensation insurer had paid substantial amounts to, or on behalf of, the plaintiff.

On behalf of the third defendant, Ms Ruschen made two broad submissions, namely that:

As to the first of those matters, Ms Ruschen turned initially to the plaintiff’s claim for damages for past and future economic loss. In doing so, she pointed out that:

With these matters in mind, Ms Ruschen made a number of submissions. Firstly, she pointed out that there was medical evidence, including evidence served by the plaintiff, which supported the view that the plaintiff had, for some time, retained an earning capacity. Secondly, she highlighted the fact that the plaintiff had been employed on a temporary basis prior to the accident which, she submitted, was a circumstance which had a bearing upon her claim for damages for economic loss. Thirdly, she submitted that the calculation of economic loss set out in the schedule, based as it was on a figure of $1,300.00 per week, had no proper evidentiary foundation in light of the material produced on Subpoena. The effect of Ms Ruschen’s submissions was that in all of these circumstances, the assessment of the plaintiff’s likely damages for past and future economic loss as set out in the schedule was inflated.

Ms Ruschen also took me to the report of Ms Dinley in respect of the plaintiff’s claim for domestic assistance. She submitted that as a Consultant Occupational Therapist, Ms Dinley was the only person appropriately qualified to express an opinion as to the plaintiff’s needs in that regard (the plaintiff’s solicitors not having qualified an Occupational Therapist to provide a report). She submitted that little weight could be given to the opinions of Dr Conrad and Dr Bodel in respect of this issue, and that neither had articulated the basis of their respective opinions as to the plaintiff’s need for domestic assistance. She submitted that Ms Dinley’s assessment would, if accepted, result in an award of damages for domestic assistance which was substantially less than that set out in the schedule.

As to the procedural history, Ms Ruschen firstly relied upon the fact that there had been an attempt to settle the plaintiff’s claim against the fourth defendant at a mediation in November 2014. She pointed out that this was after the plaintiff’s most recent surgery and submitted that the quantum of the plaintiff’s likely damages must (or at least should) have been at the forefront of the minds of those who were acting for her at that time. She submitted that the delay which had occurred between that time and 11 September 2015 (when the present application was filed) was both significant and unexplained. She further submitted that the significance of that delay was rendered even greater in circumstances where a trial date was set within that period. Ms Ruschen also pointed to the fact that her client had made its position clear about the issue of extended jurisdiction at the time of filing a defence in 2013, some two years ago.

In terms of the procedural history of the matter generally, Ms Ruschen highlighted the various failures of the plaintiff to comply with orders requiring her to serve expert evidence and particulars. Whilst she acknowledged that following the email of 30 January 2015 the defendants had accommodated the late service of the plaintiff’s medical evidence, she submitted that there were significant defaults on behalf of the plaintiff before and after that time, both in terms of the service of medical evidence, as well as in terms of the provision of particulars. These matters, she submitted, ran contrary to the general provisions of s. 56 of the CPA and thus weighed against granting the orders sought.

Section 140 of the CPA is in the following terms:

Section 56 of the CPA provides (in part) as follows:

Section 58 of the CPA is also relevant:

The two issues which were the principal focus of the parties’ submissions were:

Although not determinative, the procedural history is clearly relevant to my determination: Younes v QIC Limited trading as Westpoint Blacktown [2012] NSWSC 451 at [45]-[47], citing Sanderson Pty Limited v Kirby [2000] NSWSC 924; Bowditch v Hoey (NSWSC unreported 6 February 1997). Its relevance stems from the fact that s. 140 of the CPA confers a discretion which is to be exercised having regard to ss. 56 and 58: Every v Osborne [2012] NSWSC 1437 at [18]. A number of observations should be made about the procedural history of these proceedings in the District Court.

Firstly, the proceedings against the first three defendants were commenced on 17 September 2012. The present application was filed almost three years later. I accept that the proceedings were inactive for a period of 6 months between about June and December of 2014. Whilst that is obviously relevant, there is simply no explanation why the present application has been brought at such a late stage. I am not able to accept the submission that a material catalyst for the making of the application was the order made by Judge Hatzistergos in September of this year granting the plaintiff leave to maintain proceedings against the fourth defendant. On the chronology drawn from the evidence before me, the plaintiff had completed the service of her medical evidence in April. The nature and extent of the plaintiff’s case on damages must have been apparent at that time to those acting for her. Indeed, there is force in Ms Ruschen’s submission that the plaintiff’s case in that respect must have been apparent at the time of the mediation in November 2014. In all of these circumstances the delay, and the lack of explanation for it, are rendered even more significant in circumstances where the plaintiff has been on notice of the third defendant’s opposition to extended jurisdiction since September 2013.

Secondly, and quite apart from the unexplained delay, there have been a number of failures on the part of the plaintiff to comply with orders made in the District Court requiring the service of expert reports and particulars. Even accepting counsel’s submission that the plaintiff’s failure to provide particulars by 30 January 2015 was not a case of flagrantly ignoring a court order, there have been, as I have set out, numerous other failures on the part of the plaintiff to comply with orders of the District Court. It is no answer to say that the degree of delay and default on the part of the plaintiff in those respects was less than that considered by the Court in other cases where a similar application was made.

I accept that the delay in bringing the application, and the failures on the part of the plaintiff to comply with orders of the District Court, are not, of themselves, determinative. However in my view, particularly bearing in mind ss. 56 and 58 of the CPA, they are matters which weigh against the making of the order sought.

In determining the likely award of damages, the approach to be taken is an impressionistic one. I am not required to engage in a preliminary trial of the matter and, in particular, I am not required to engage in an individual assessment of each head of damage under which a claim is made: Younes (supra) at [50] citing Johnstone v New South Wales [2006] NSWCA 105 at [22]-[23]. Adopting that approach there are two aspects of significance in respect of the plaintiff’s likely damages, namely the claim for past and future economic loss, and the claim for the cost of domestic assistance.

As far as the claim for economic loss is concerned, the calculation in the schedule is based upon earnings of $1,300.00 pw. Three observations may be made about that calculation.

Firstly, the most recent statement of particulars filed on 29 September 2015 pleads that the plaintiff “was employed by the Defendant as a personal assistance (sic) earning on average $1,000.00 pw”. In these circumstances, the basis of the figure of $1,300.00 per week which was used for the purposes of the calculation set out in the schedule is not apparent.

Secondly, the wage records of the plaintiff produced under Subpoena and annexed to the affidavit of Ms Ruschen (which commence in April 2008) establish that when the accident occurred in September 2009 the plaintiff was earning a net weekly wage of $890.00 and had been since about 4 August 2009. For the two months prior to that, her wage was $815.50. Before that, it was $811.50. All of these amounts are substantially less than the amount of $1,300.00 used in the schedule. Moreover, such amounts do not produce average weekly earnings of $1,000.00 as pleaded in the particulars.

Thirdly, the calculation of past and future economic loss as set out in the schedule appears to be based upon the plaintiff being totally incapacitated for all forms of work since the accident, and having no residual earning capacity at all. There is evidence (including opinions expressed by medical practitioners qualified by the plaintiff’s solicitors) which support the conclusion that the plaintiff retains some earning capacity (see [17](vi) and (vii) above) and has done since April 2013 (see [17](iii) above) or perhaps even before that (see [17](i) and (ii) above). To the extent that Dr Clark expressed the view that the plaintiff was “most unlikely to be employed”, it is relevant to note that he examined the plaintiff for medico-legal purposes only, and specifically noted that she had received no psychiatric or psychological treatment since the accident.

In these circumstances, I accept the submission of Ms Ruschen that the calculation of the plaintiff’s entitlement to damages for economic loss as set out in the schedule appears inflated. It is at odds with the documentary and expert evidence to which I have referred. It has a “flow on” effect in respect of the calculations made in respect of loss of superannuation.

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.

I cannot ignore the contents of the report of Ms Dinley, upon which the third defendant will rely. Ms Dinley is the only Consultant Occupational Therapist who has been qualified in the proceedings. She has assessed the plaintiff’s need for domestic assistance at a level which is substantially less than what is calculated in the schedule of damages. The plaintiff, of course, relies upon the opinions of Dr Conrad and Dr Bodel to support that part of her claim. Even assuming that those opinions are admissible, there may well be some issue as to the weight which can be attached to them. In this regard, I am mindful of the observations of Basten JA in Boral Bricks Pty Limited v Cosmidis; Boral Bricks Pty Limited v DM and BP Wiskich Pty Limited [2013] NSWCA 443 at [93], to the effect that an assessment of the number of hours per week which might be required to undertake domestic duties and gardening is not the kind of expertise normally attributed to orthopaedic surgeons.

In light of the submissions made on behalf of the plaintiff three further matters should be noted. Firstly, whilst it may be that the Workers Compensation insurer has paid certain amounts to or on behalf of the plaintiff, it will be a matter for the trial judge to assess the plaintiff’s damages on the evidence.

Secondly, in terms of any assessment of non-economic loss, it is clearly the case that the plaintiff has undergone three separate surgical procedures. The most significant of those was the fusion surgery in July 2014. According to Dr Bodel, that surgery has been helpful. Thirdly, the opinion of Ms Dinley would, if accepted, support a conclusion that the plaintiff’s injuries have not given rise to any significant necessity for domestic assistance. Finally, to the extent that the plaintiff advances a case of psychiatric injury, I have noted (at [46] above) that she has not sought any psychiatric or psychological treatment. All of these matters will necessarily impact upon any assessment of damages for non-economic loss.

For all of these reasons I am not satisfied that it is likely the plaintiff’s damages will exceed the jurisdictional limit of the District Court.

It follows from the foregoing that the application for the transfer of the proceedings to this Court should not be granted.

I make the following orders: