Supreme Court New South Wales Medium Neutral Citation: Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164 Hearing dates: 13 September 2021 Date of orders: 13 September 2021 Decision date: 13 September 2021 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: Order made for proceedings numbered 2019/00365414, 2019/00365347 and 2020/00328243 to be transferred from the District Court of New South Wales to the Supreme Court of New South Wales pursuant to s 140 of the Civil Procedure Act 2005. Catchwords: PRACTICE AND PROCEDURE – transfer from District Court to Supreme Court – no question of principle Legislation Cited: Civil Procedure Act 2005 Cases Cited: Engwirda v Robinson [2021[ NSWSC 253 Harland v Yarrahapinni Community Housing Incorporated [2020] NSWSC 12 Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337 Category: Procedural rulings Parties: Teresa Restaino (Plaintiff) Urban Purveyor Group Pty Ltd (First Defendant) SGB Construction and Fit-Out Pty Ltd (Second Defendant) J Harcoan t/as The Neon Forest (Third Defendant) Representation: Counsel: M Finnane QC; M Meakes (Plaintiff) C Coventry SC (Defendants) Solicitors: Paramount Compensation Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) File Number(s): 2021/73405 EX TEMPORE Judgment 1. On 15 March 2021 the plaintiff, Teresa Restaino, filed a summons in this Court seeking the transfer from the District Court to the Supreme Court of personal injury proceedings she had commenced against the three defendants, pursuant to s 140 of the Civil Procedure Act 2005 ("CPA"). Ms Restaino's proceedings arose out of an incident on 29 June 2019. Ms Restaino states that on that day, as she was about to enter a cafe at Macarthur Square in southwest Sydney, a sign came loose and struck her on the head, neck and back area. She was subsequently taken to a hospital for treatment. 2. Related to Ms Restaino's claim in the District Court are two other claims by close members of her family, namely, proceedings by her husband and her sister arising out of the same incident. Senior counsel for Ms Restaino, Mr Finnane QC, accepted that no question of exceeding the threshold of $750,000 arises with those claims. He submitted that if it was determined to transfer Ms Restaino's proceedings then, due to the commonality of facts, it was appropriate to transfer those proceedings to this Court to accompany Ms Restaino's case: (CPA s 140(3)(d)(ii)). 3. Counsel for the three defendants in all three proceedings, Ms Coventry, advised the Court that the first defendant neither opposed nor consented to any of the applications, but the second and third defendants opposed Ms Restaino's transfer application. Ms Coventry conceded that, if the Court allowed Ms Restaino's application, then it was appropriate that the other two matters should be transferred. 4. Section 140 of the CPA provides as follows: 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 or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. (2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District 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. (4) Proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court. (5) This section extends to proceedings that have been transferred to the District Court or the Local Court pursuant to a previous transfer order under this Division or under Division 2. 1. To the extent that ss 140(3)(b)(i) refers to there being a determination that the amount to be awarded to the relevant plaintiff, if successful, "is likely to exceed the jurisdictional limit of the District Court," which in this case is $750,000, then both counsel were in agreement as to the relevant principles. They were relevantly set out by McCallum J, as her Honour then was, in Tauri v Janlin Circuses Pty Ltd (trading as Stardust Circus) [2017] NSWSC 1337 at [7]: "The approach to be taken to that assessment is well-established. In determining the question posed by s 140(3), the Court is not required to engage in a preliminary trial of the matter and, in particular, is not required to engage in an individual assessment of each head of damage under which a claim is made: Johnstone v State of New South Wales [2006] NSWCA 105 at [23] per Giles JA; Santow and McColl JJA agreeing at [26] and [27]; Younes v QIC Ltd (trading as Westpoint Blacktown) [2012] NSWSC 451 at [50] (Bellew J). Rather, the task is to arrive at a likelihood, to an extent as a matter of impression but founded on the evidence before the Court: Johnstone at [22]. The term "likely" does not mean more probably than not. It requires the Court in a summary way to make an assessment as to whether there is a real chance of the plaintiff obtaining a verdict of more than $750,000 if successful: Cubrilo v Veljovic [2015] NSWSC 367 at [9] (Campbell J), cited with approval in Parker v MID Plumbing Services Pty Ltd [2017] NSWSC 1060 at [16] (Lonergan J)." 1. In stating that the court is not required to engage in an individual assessment of each head of damage under which a claim is made, her Honour is not to be taken as stating that the court does not consider the relevant suggested amounts for each head of damage. As the judgments of Ierace J in Engwirda v Robinson [2021] NSWSC 253, and Henry J in Harland v Yarrahapinni Community Housing Incorporated [2020] NSWSC 12 make clear, part of the assessment of the likelihood a relevant plaintiff recovering more than $750,000, if successful, can include a consideration of the relevant heads of damage, albeit it is not part of the court's function to determine the amount that would be awarded. Further, generally speaking it is not part of the court's function to make a determination between competing medical reports as to what is likely to be found at a final hearing. 2. A further matter about s 140 needs to be noted. The discretion conferred by s 140(1) is to be exercised having regard to the various considerations set out in ss 56 to 58 of the CPA. In such cases, there are often two significant factors. One is the potential prejudice to a plaintiff from the refusal of the application. In particular, in a case where the assessment is that the plaintiff is likely to recover more than $750,000, it means that if the application was refused then the plaintiff's rights of recovery would be limited. 3. Another factor is whether some tactical or forensic advantage is sought to be achieved by the application, and in particular, whether there may be prejudice to the defendant from the loss of an impending hearing date if the application was granted. In this case, as I understand it, no hearing date has been allocated for these matters in the District Court. It has not been said that there is some illegitimate forensic or tactical advantage sought to be achieved by making the application. 4. Given the current pandemic circumstances, it seems that whichever forum the plaintiffs bring their claim in there is likely to be a reasonable delay in the obtaining of a hearing date. Hence, in terms of the relative advantages of staying in the District Court compared to the Supreme Court, the matter is relatively neutral. Instead, the submissions, quite rightly, focussed upon the critical question of the likelihood that Ms Restaino's claim would exceed the jurisdictional limit of $750,000. In this case, that assessment appears to be determinative of whether the relief sought in the summons should be granted. 5. In support of the application the plaintiff has tendered her evidentiary statement as well as various medical reports that are attached to the affidavits of her solicitor. In resisting the application, the second and third defendants have relied upon a psychiatrist's report. 6. The matter is best approached by considering the postulated heads of damage identified by the plaintiff's solicitor in his affidavit as follows: • Non-economic loss (55% of most serious case) $297,000 • Past economic loss $47,000 • Loss of superannuation on past $5,170 • Future economic loss buffer $200,000 • Loss of superannuation on future $24,000 • Past domestic assistance $20,584 • Future domestic assistance $324,720 • Past out-of-pocket expenses $10,000. 1. Those amounts total $928,474 with no allowance for future out-of-pocket expenses. 2. In her evidentiary statement the plaintiff reveals that she was almost 48 years old at the time of the accident and is now almost 50 years of age. She describes the incident in which she was hurt. She states that as a result of the accident she sustained injuries to her head, jaw, right shoulder, back, along with visual acuity, some psychological sequelae, blurred vision, ongoing migraines, vertigo and anxiety. She describes the effects of those various conditions upon her day-to-day activities as well as her dealings with her family and her ability to obtain work. So far as work is concerned, she says that up until 2017 she and her husband owned and operated a pizza shop in which she worked ten hours a day for five days a week. She says at the time of the accident she and her partner were searching for commercial premises to commence business operations, but the physical and psychiatric effects of the incident precluded her from continuing. 3. So far as personal care and domestic assistance is concerned, she describes the difficulty she has in completing her various daily tasks. She states that her family help her at the very least one hour each day. 4. A report from a psychiatrist whom she saw reasonably soon after the accident diagnosed her as having a chronic adjustment disorder with anxious mood. He opined that Ms Restaino would have difficulty working as a result of her significant anxiety symptoms. Ms Coventry pointed out that an accompanying whole person assessment by the psychiatrist stipulated that she was "fit for suitable duties". Also placed before me was a report of an Ear Nose and Throat Physician concerning her various symptoms, including suspected hearing loss, tinnitus, dizziness and right jaw pain. 5. More controversially perhaps, Ms Restaino relies on a report of a psychologist who has seen her on a number of occasions. The psychologist undertook an extensive amount of testing of her various executive functions and ultimately concluded that she suffered from post-traumatic stress disorder in the severe range. The psychologist opined that Ms Restaino had become intellectually and socially dependent on her husband to care for her for the rest of her life. She concluded that she will be unable to return to the labour market in any capacity and would be a suitable candidate for the disability support pension as her prognosis is so poor. 6. The competing opinion of the defendant's psychiatrist to whom I referred earlier included a statement that there was no apparent cognitive impairment of Ms Restaino. He noted that she had "subjective symptoms" which that psychiatrist considered may be indicative of a mild neuro-cognitive disorder or may be due to "illness behaviour". 7. An occupational therapist's report tendered on behalf of the plaintiff contained a reasonably comprehensive assessment of her present functioning. It breaks down the assessment of the past assistance required into two stages, namely, one period from 29 June 2019 to 29 September 2019 with an assessment that she required 16.91 hours per week, and then a stage from 30 September 2019 to 12 July 2021 with an assessment that she required 11.49 hours per week for that period. 8. In respect of her ongoing needs, the occupational therapist ultimately concluded that Ms Restaino would benefit from 6.7 hours per week of commercial assistance broken down into bulk meal preparation, floor cleaning, cleaning of bathrooms, changing of bed linen, laundry, shopping and transport together with some weekly car-cleaning assistance. 9. The preceding part of the occupational therapist's report attributes various hours to various different parts of her impaired functioning, specifically, for example, her ability to complete shopping which was due to poor confidence and anxiety which might be attributable to her post traumatic stress disorder, and that with other activities around the house, such as washing, she required assistance because of her dizziness, head and neck pain. 10. In comprehensive written and oral submissions, Ms Coventry contended that there was either no evidence to support the ambit of the heads of damages identified by the plaintiff's solicitor that I have set out earlier or, to the extent that there was, the evidence in support of it was so palpably weak that the Court could not conclude that it was likely that the jurisdictional limit would be exceeded. 11. Ms Coventry broke down the plaintiff's various injuries into three categories. The first she identified was the injuries to her neck, back and right shoulder Ms Coventry submitted there was really no medical evidence to support any ongoing difficulties being experienced by the plaintiff in relation to those injuries. To an extent I think that may be accepted, although it would seem to me reasonably likely that if it is accepted that the plaintiff was hit on the head or back area by a large sign there could be expected to be some immediate and ongoing consequences of that. 12. The second type of head injuries or category of injuries that Ms Coventry identified were neurological ones, ie, the headaches and dizziness described by the plaintiff. Ms Coventry noted an absence of neurological evidence as to their likely origins and more significantly as to their likely duration. It must be said that this aspect of the material before me has caused me the greatest hesitation before considering whether to grant the relief sought. 13. The third matter concerned the various psychiatric injuries that I have referred to. Ms Coventry's written submissions and to an extent her oral submissions opined at length as to the relative unlikelihood that the opinions of the psychologist would be preferred to those of the psychiatrists. The assessment of the competing psychological and psychiatric opinions is, in my view, an exercise the Court does not undertake at this point of the analysis. Instead, I think I am bound to proceed on the basis that, even if it is not a greater than 50 percent chance, there is nevertheless a real chance that a court would accept the opinion of the psychologist, given the comprehensive nature of her report and the number of times she has seen the plaintiff. 14. It seems to me reasonably obvious that a very significant part of the quantum of Ms Restaino's claim will depend upon an acceptance of her evidence and the evidence of the psychologist in preference to that of a psychiatrist. While experience suggests that there may not be a strong prospect of that, I cannot dismiss the prospect of that being anything less than a real chance. 15. Returning then to the various heads of damages that I have identified earlier, I have no doubt that they can only be assessed as effectively an ambit claim or the highest end for the plaintiff's claim. Nevertheless, if the plaintiff's evidence and the psychologist's evidence was to be accepted then it must be said there is some prospect of an amount for non-economic loss that may be at least in the range of that identified. 16. The amounts sought for past and future economic loss are problematic given that relatively little evidence that has been put forward in support of the application. However, a claim for past economic loss of $47,000 in respect of a woman in her late 40s for a period of just over two years, assumes an earning capacity at $22,500 per year. In my view that is reasonably realistic. The question whether she in fact intended to work is, of course, a different one, but her statement provides sufficient evidentiary support for the contention that she did. 17. The claim for a future economic loss buffer of $200,000 appears somewhat ambitious. Nevertheless, if one accepts even a modest level of economic capacity, and the psychologist's evidence to which I have already referred, then that to my mind such a figure seems at least open, even if not probable. 18. The claim for past and future domestic assistance as calculated by the solicitor appears difficult to reconcile with the figures nominated by the occupational therapist. On my rough calculations, adopting 6.74 hours for the future and using the amount per hour nominated by the plaintiff's solicitor of $45 per hour, I obtained a figure of $273,000 rather than $324,000. It is not necessary to ultimately put such precise figures on those amounts to see that the total of all the amounts may exceed $750,000. Instead, the principal issue at this point I think concerns what I referred to earlier, namely, the absence of any neurological material suggesting that her neurological symptoms will be permanent. 19. Nevertheless, bearing in mind that I am not undertaking a task of assessing damages, nor am I even undertaking a task of assessing whether it is more probable than not what amount will be recovered, then given my other conclusions, I think it could be said that there is at least a real chance of the domestic assistance being such a sufficient figure that, when taken with the other amounts, the total amount is likely to exceed $750,000. 20. Accordingly, accepting that the assessment depends upon a conclusion as to the prospects of the acceptance of the psychologist's assessment, I am satisfied that the amount to be awarded to the plaintiff if successful is likely to exceed the jurisdictional limit of the District Court for a case such as this, namely, $750,000. It follows from what I have said earlier that I will make the order sought in paragraph 1 of the summons. 21. I order that proceedings numbered 2019/00365414, 2019/00365347 and 2020/00328243 be transferred from the District Court of New South Wales to the Supreme Court of New South Wales pursuant to s 140 of the Civil Procedure Act 2005. [Parties addressed as to costs.] ********** 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: 15 September 2021