Sukhova v Sydney Trains [2021] NSWSC 603

Supreme Court New South Wales

Medium Neutral Citation: Sukhova v Sydney Trains [2021] NSWSC 603 Hearing dates: 18 May 2021 Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Common Law Before: Campbell J Decision: Direct counsel to bring in short minutes of order separating the issue of liability from quantum in respect of the first and second plaintiffs Catchwords: PRACTICE AND PROCEDURE – Application to separate the issue of quantum from liability – Where psychiatric condition of child plaintiffs not yet stabilised – Whether application fair in the circumstances – Application granted Legislation Cited: Civil Liability Act 2002 (NSW) Compensation to Relatives Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Tepko Pty Limited & Ors v Water Board (2001) 206 CLR 1 Thomas v Oakleigh [2003] NSWSC 1033 Texts Cited: N/A Category: Procedural rulings Parties: Nataliya Sukhova (First Plaintiff) Victoria Sukhova (Second Plaintiff) Alexander Sukhova (Third Plaintiff)

Sydney Trains (Defendant) Representation: Counsel: Brendan Hull (First, Second and Third Plaintiff) N Hogan (Defendant)

Solicitors: A R Conolly & Company (First, Second and Third Plaintiff) Ashurst (Defendant) File Number(s): 2016/00361658 Publication restriction: N/A

Judgment 1. The proceedings arise out of the death of Mr Igor Sukhov on 4 December 2013. Mr Sukhov was killed when he received fatal injuries on the railway tracks at Roseville railway station when he was hit by a train. The plaintiffs in the proceedings are his widow, Nataliya Sukhova and their children, Victoria and Alexander. 2. Claims are brought in the one proceeding for damages under the Compensation to Relatives Act 1987 (NSW) and for nervous shock for each of Mr Sukhov's widow and his daughter and son. 3. I am dealing with an application for the question of the damages, if any, payable to the children to be severed from the main proceedings and determined separately at a point in time after the determination of what I will refer to as the general or remaining questions. 4. The basis upon which the application is made includes the consideration that the children were of tender years when their father was killed and it is too early to assess and determine the long-term, psychological effects of the death of their father, if any. Victoria was born on 13 May 2008 and Alexander on 17 August 2012. 5. Although the evidence before me indicates that the children have been receiving counselling since their father's death, in respect of Alexander from the age of five, given their still-young age, the condition of each has not stabilised and such expert evidence as has been obtained suggests that it is unlikely that the final outcome in respect of any harm suffered by them will be known for some years yet. 6. In principle, the defendant consents to the application for the separation of those issues. I am satisfied that it is an appropriate case to make an order for the separation of those issues. 7. I acknowledge that I have been assisted by the reference by Mr Hull of learned counsel to pertinent authorities in the matter, including in particular, the decision of Woods CJ at CL in Thomas v Oakleigh [2003] NSWSC 1033. In that matter his Honour sets out comprehensively the relevant considerations that inform the exercise of the Court's discretion in a manner which, if I may say so, does not appear to have been departed from and, indeed, has frequently been cited. 8. I acknowledge that the general rule, related to the principle of finality in litigation, is that all issues in proceedings should be heard and determined at the one time. However, the existence of Part 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) and the circumstances referred to by Wood CJ at CL indicate the Court has ample a power in appropriate cases, always bearing in mind the efficiency provisions of the Civil Procedure Act 2005 (NSW), to order separate hearings. 9. In making such an order it is appropriate also to bear in mind the caution with which such orders should be made for the reasons referred to, inter alia, by Kirby and Callinan JJ in Tepko Pty Limited & Ors v Water Board (2001) 206 CLR 1 at [168]-[170]. 10. Without dealing with the matter at length, it seems to me that, given the evidence in the case, there seems to be no real prospect that a severance of the damages' issues in relation to the nervous shock claims of the children will complicate or unjustly prolong the determination of the proceedings and, indeed, it is obvious to me that the very critical issue in the case relates to the determination of whether or not the defendant was, in any event, negligent in the circumstances leading to Mr Sukhova's death, and the relate question of contributory negligence. The determination of that issue, as soon as that may reasonably occur, having regard to its complexity, will facilitate in any event the resolution of the question of any damages to which the children may be entitled. In that regard there was significant discussion before me concerning the effect of the provisions of Part 3 of the Civil Liability Act 2002 (NSW) and in particular sections 31 and 32. In particular s 31 provides that there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 11. It is quite clear that there is an overlap between liability and quantum questions in nervous-shock claims. That is to say, unlike the normal run of personal injury cases, the questions of liability and quantum cannot in these cases be neatly compartmentalised because the question of, first, whether the plaintiff has in fact suffered a recognised psychiatric illness, and second, whether it was foreseeable that a person of normal fortitude might suffer such an injury, are liability questions. The determination of these questions will be informed by expert psychiatric evidence. 12. For this reason, much of the argument was about the form in which the orders should be made to avoid any unfairness, either to the children who are plaintiffs or to the defendant, and in that regard counsel have devised a form of words to add to the first prayer in the amended notice of motion to make it clear that the question of damages sought to be "hived-off" includes the question of whether each of the children in fact suffered a recognised psychiatric illness but not, as it was put by Mr Hogan of learned counsel in his submissions for the defendant, the hypothetical question posed by s 32 of whether it was foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness. 13. In those circumstances I am prepared to make the orders sought provided that "what's in" and "what's out" of the damages question for the separate hearing is made pellucidly clear in the form of order made. 14. For these reasons, I direct counsel to bring in short minutes of order giving effect to my decision, which short minutes of order may be forwarded to my Associate by e-mail without the need for any further attendance by counsel.