Supreme Court New South Wales Medium Neutral Citation: Hartley v Envisage Construction and Design Pty Ltd [2020] NSWSC 1303 Hearing dates: 23 September 2020 Date of orders: 24 September 2020 Decision date: 24 September 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), District Court proceedings number 2018/9624 be transferred to the Supreme Court of New South Wales. (2) Costs of this summons are to be costs in the cause of the primary proceedings. Catchwords: CIVIL PROCEDURE – Application for transfer from District Court to Supreme Court under Civil Procedure Act 2005 (NSW) s 140 – Realistic chance of plaintiff if successful recovering sum in excess of jurisdictional limit of the District Court – Order for transfer made Legislation Cited: Civil Procedure Act 2005(NSW) District Court Act 1973 (NSW) Workers Compensation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aitofi v The Council of the City of Sydney [2020] NSWSC 611 Johnstone v State of New South Wales [2006] NSWCA 105 Category: Procedural and other rulings Parties: Dale Robert Hartley (Plaintiff) Envisage Construction and Design Pty Ltd (First Defendant) Neulan Scott Wark (Second Defendant) Representation: Counsel: J Wilson (Plaintiff) J Sleight (First Defendant) Solicitors: RMB Lawyers (Plaintiff) McMahon's Lawyers (First Defendant) Access Law Group (Second Defendant) File Number(s): 2020/00220521 Judgment Introduction 1. By a summons filed on 28 July 2020, the plaintiff, Mr Hartley, seeks an order that the proceedings he commenced in the District Court be transferred to this Court under s 140(1) of the Civil Procedure Act 2005(NSW) (the CP Act). 2. The first defendant, Envisage Construction and Design Pty Ltd ("Envisage") opposes the order for transfer. The second defendant, Neulan Scott Wark, adopted the same position as, and the submissions of, Envisage. The background facts 1. The factual background to these proceedings has been derived from the affidavits read by the plaintiff and the first defendant for the purposes of this application. 2. The plaintiff is a 39 year old man who has worked, for more than 20 years, in the construction industry, including as a construction site supervisor and carpenter. He has a number of Building and Construction related qualifications. 3. The plaintiff's claim is based on allegations to the effect that, prior to the accident in question, Mr Hartley had been contracted to work as a carpenter at a site owned by Envisage where the second defendant had been contracted to build a stud wall frame. On 16 January 2016, the plaintiff was working on the site and, while climbing down a ladder, he grabbed hold of a wall stud, which, because it had not been securely attached, pulled out, causing him to fall 1.8m to the ground and sustain injury, initially to his right ulna and radius and right elbow. A proximal ulnar fracture was treated through open reduction and internal fixation with a plate and screws. 4. The plaintiff alleges that the injuries were caused by the negligence of Envisage and/or the second defendant and that as a result of the injuries he now suffers from various disabilities, including but not limited to: pain; discomfort; loss of enjoyment of life; difficulties performing pre-accident activities; difficulty performing pre-injury employment; difficulty driving and performing recreational activities; mental health issues; and, is required to take medication and receive necessary treatment. Significantly, the plaintiff's claim effectively includes the allegation that his future earning capacity is nil. 5. In a report of 7 November 2017 from Dr Medhat Guirgis, a consultant orthopaedic surgeon, the plaintiff was assessed as having a whole person impairment of 18%, largely the result of the injuries to his right arm and elbow. The plaintiff now also alleges that his condition has worsened more recently and, in this regard, relied upon the report of Dr Gurigis of 19 March 2019 which described left elbow pain and perceived weakness in the left hand grip, allegedly from over-compensation for his right side injuries, as well as continuing painful stiffness and weakness of the injured dominant right elbow and other pain and stiffness on the right side of the chest and right shoulder blade. In the later report, Dr Guirgis assessed a relevant whole person impairment of 21%. These opinions are not accepted by the first defendant's orthopaedic surgeon, Dr Anthony Smith, who has provided reports of 28 June 2018 and 11 February 2019. In the earlier of those reports, Dr Smith was of the view that "the fractures have healed and should not produce any weakness of the elbow either" and that based on his clinical examination and the radiology available the plaintiff "is fit for any work suitable for a man of his age, without any restriction whatsoever". 6. As to his future earning capacity, the plaintiff relies upon, inter alia, a vocational assessment dated 24 July 2020 from an occupational therapist, Ms Prattley. Her assessment is based on the assumption that "the functional restrictions Mr Hartley currently experiences consequent upon his injuries will be present for the foreseeable future" and includes the conclusion that "Mr Hartley does not have the capacity to return to his pre-injury occupation as a Carpenter and he no longer has the capacity to perform all the common tasks of any other occupation for which he is qualified or has work experience" (emphasis in original). 7. Envisage strenuously contests the soundness of these opinions of Ms Prattley and whether the assumptions which underpin them have been established. For example, it points to the plaintiff's resumé, which was in evidence before me, and which accompanied an application for a position as a supervisor/operator dated 2 July 2019. The resumé stated that the plaintiff worked as a construction site supervisor, in 2016 and 2017 with Colemans Group (Aust) Pty Ltd and from 2017 to "current" with Lendlease Building. The proceedings in the District Court 1. Mr Hartley filed a statement of claim and statement of particulars in the District Court on 10 January 2018. The plaintiff's solicitors commenced the proceedings in the District Court because it was not known at that time that the plaintiff's loss and damage were as significant as they now appear, to those solicitors, to be. On 28 September 2018, the plaintiff filed an amended statement of claim joining the second defendant. A number of cross-claims have also been filed. A further amended statement of claim was filed in the District Court on 7 February 2020. 2. On 19 February 2020, orders were made adjourning the matter for a status conference on 22 April 2020 "at which time the parties are to take a hearing date". On 22 April 2020, a hearing date was not fixed and the matter was further adjourned to permit the plaintiff to make the present application for transfer to the Supreme Court. Since that time, the matter has been adjourned on a number of occasions and it is next listed for directions in the District Court on 30 September 2020. 3. The first defendant's solicitor's evidence was that he searched the website of the District Court on 27 August 2020 and discovered that there is a two week sitting commencing on 7 September 2020, a two week sitting commencing on 8 March 2021 and a three week sitting commencing on 7 June 2021. Although Mr McMahon did not say so in his affidavit, it appeared that this referred to sittings in Wollongong. The plaintiff's estimate of his claim 1. The plaintiff's estimate of the quantification of his claim can be summarised from the material before the Court and, in particular, the summary provided in the plaintiff's written submissions as follows: Head of damage Amount claimed Non-economic loss (35% of most extreme case) $230,500.00 Past out-of-pocket expenses $1,042.63 Future medical expenses (including consultations with: GPs; Specialists; Physiotherapists; Pharmaceutical expenses; Psychological counselling; and, Future occupational therapy $75,542.65 Travel expenses (at a rate of $0.68 per km) $2,734.61 Driving requirements $2,010.46 Future commercial assistance $130,746.53 Future Equipment Expenses $2,211.32 Past economic loss (79 weeks x $1,455.90 per week – less actual earnings) $52,620.39 Future economic loss ($1,879 per week for 23 years less 15% vicissitudes) $1,438,349.30 Superannuation $171,016.75 Total $1,969,797.91 (plus costs) 1. In light of the strenuous contest as to the extent of the plaintiff's continuing disabilities and his earning capacity, the defendants contend that there is no likelihood that the plaintiff will recover an amount in excess of the jurisdictional limit of the District Court of $750,000.00, even if he is successful on liability. In these circumstances, the defendants submit that the hearing of the matter in the District Court should not be further delayed. Consideration 1. Section 140 of the CP Act relevantly provides: "140 Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court … order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. … (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied— (a) in the case of a motor accident claim or a workplace injury damages claim— (i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and (ii) that the case involves complex legal issues or issues of general public importance, or (b) in any other case— (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court. …" 1. The term "workplace injury damages claim" is defined to mean a claim for an award of damages to which Div 3 of Pt 5 of the Workers Compensation Act 1987 (NSW) applies. Section 151E of Workers Compensation Act provides: "151E Application—modified common law damages (1) This Division [Div 3 of Pt 5] applies to an award of damages in respect of— (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer." 1. Because neither defendant was the plaintiff's employer, the relevant provision is s 140(3)(b) of the CP Act and the relevant jurisdictional limit is $750,000, having regard to the definition of "jurisdictional limit" in s 3(1) of the CP Act and ss 4 and 44(1)(a) of the District Court Act 1973 (NSW). 2. Under s 140, the Court is not required to make an assessment of the strength of the plaintiff's case as to liability or quantum, since these are matters for the trial judge. The task to be undertaken by a Court has been described as "a matter of impression". 3. One essential element to be considered is whether, in the words of s 140(3)(b)(i): "the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court". (underlining added) 1. As a result, the Court's task is not to attempt to assess the likely damages on all the evidence before it. 2. In Johnstone v State of New South Wales [2006] NSWCA 105, Giles JA (Santow and McColl JJA agreeing) said, at [22] - [23]: "[22] … Plainly [the judge] was not to engage in an exercise of complete assessment, but was to arrive at a likelihood, and of necessity he had to do so to an extent as a matter of impression, albeit founded on the evidence before him. The judge did this and, in my opinion, he sufficiently explained why he did not accept the suggested assessment of $1.6 million. [23] It was submitted that the judge should have gone to each of the items in the assessment, and stated his own assessment in substitution for that proposed on behalf of the claimant, so that it was demonstrated quasi-mathematically that the threshold of $750,000 was not achieved. I do not think that is correct. The question for the judge was not an assessment of the individual components of a damages claim, but rather the broader question of whether it appeared likely to him that if the claimant were successful his damages would exceed $750,000 …" 1. As Adamson J explained in Aitofi v The Council of the City of Sydney [2020] NSWSC 611 at [29], the words "if successful" are not confined to liability but extend also to damages. Thus, it is not sufficient merely to assume that the plaintiff will be successful in establishing that one or other of the defendants is liable. Rather, it is also necessary to assume that the plaintiff will be successful in establishing the general basis on which the plaintiff's claim for damages is put. 2. The evidence adduced in support of an application for transfer must generally provide a sufficient basis for the damages claimed. In my view, there is a basis in the evidence before me to support the propositions that the plaintiff has, as a result of the accident on 16 January 2016, sustained injury which required significant treatment, caused pain and suffering, has had ongoing adverse effects on the plaintiff's health, well-being and capacity to perform various types of work and may have caused his earning capacity to be reduced to a greater or lesser extent. 3. The requirement to be satisfied that the amount to be awarded to the plaintiff, is likely to exceed the jurisdictional limit of the District Court, if the plaintiff is successful, does not mean that the figures put forward by the plaintiff's solicitors must be accepted without question. Common experience teaches that such figures might not be achieved at a final hearing, when all the evidence has been considered by the trial judge. Nonetheless, as Adamson J said in Aitofi at [30], the Court should not adopt too sceptical an approach to such figures where there is some evidence for the scenario on which they are based. 4. Further, Pt 6 of the CP Act is relevant to the assessment required by s 140. Adamson J in Aitofi said at [31]: "To read the words "if successful" in s 140 too narrowly would hardly advance the "just, quick and cheap resolution of the real issues in the proceedings" in accordance with the overriding purpose in s 56. Had the application for transfer not been made, his solicitors could potentially, in that event [namely the plaintiff being entitled to recover more than $750,000], be found to be liable in negligence for not seeking the transfer. … [The plaintiff not being able to recover the full amount of his damages] would amount to irremediable prejudice and is a matter to be taken into account under Part 6 of the Act." 1. The first defendant contended that the plaintiff had delayed in making the application to transfer. The accident alleged occurred on 16 January 2016. Proceedings in the District Court were commenced on 10 January 2018. A further amended statement of claim was filed on 7 February 2020. 2. The transfer application was foreshadowed in about April 2020 and was filed on 28 July 2020, after some discussion between the parties as to consenting to unlimited jurisdiction or transfer. Given the difficulties during 2020 with the COVID-19 pandemic, it does not appear to me that there has been such delay as would strongly militate against the plaintiff's transfer application. 3. There was some evidence concerning when the matter might be heard in the District Court at Wollongong, it was far from clear when a final hearing might actually take place. Nonetheless, the prejudice involved in depriving the plaintiff of the opportunity to recover more than the jurisdictional limit of the District Court would not, in my view, be cured by the availability of a hearing date in the District Court which might be earlier than the date available in this Court. 4. Furthermore, the transfer to this Court is not without some benefit to the defendants and risk to the plaintiff. If the plaintiff were to recover less than $500,000 in damages, he may not be successful in obtaining an order for costs of the proceedings, having regard to the terms of r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW). 5. There was a substantial basis, on the material before the Court, for having some doubt as to whether the plaintiff would be likely to recover more than $750,000.00. Nonetheless, I am required to make an assessment of the case advanced by the plaintiff, if successful. On that basis, I am prepared to find that there is a realistic, but far from overwhelming, chance of his obtaining judgment for an amount in excess of $750,000, which is the relevant jurisdictional limit. Whether or not he does so after a final hearing remains to be seen. The risk that the plaintiff may be successful but not recover a sufficient amount to entitle him to an award of costs in his favour was no doubt considered by the plaintiff's solicitors when pursuing this transfer application. 6. For these reasons and taking into account all the considerations referred to above, I am satisfied on balance that an order for transfer ought be made. Orders 1. For the reasons set out above, the orders of the Court are: 1. Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), District Court proceedings number 2018/9624 be transferred to the Supreme Court of New South Wales. 2. Costs of this summons are to be costs in the cause of the primary proceedings. ********** Amendments 24 September 2020 - Stray comma removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2020