Chol v Sydney Trains (No 3) [2022] NSWSC 1276

Supreme Court New South Wales

Medium Neutral Citation: Chol v Sydney Trains (No 3) [2022] NSWSC 1276 Hearing dates: 29 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: Grant leave to the plaintiff to file an amended Statement of Particulars by 10am, 30 June 2022 to reflect all of the claims that the plaintiff intends to pursue and the amounts of those claims. Catchwords: CIVIL PROCEDURE — Pleadings — Particulars — Personal injury claims — Late application for amendment — Whether prejudice to the defendant Category: Procedural rulings Parties: Aluk Majok Chol (Plaintiff) Sydney Trains (Defendant) Representation: Counsel: J Catsanos SC with S Roulstone (Plaintiff) P O'Dowd (Defendant)

Solicitors: Malouf Solicitors (Plaintiff) Ashurst (Defendant) File Number(s): 2019/235959 Publication restriction: None

REVISED EX TEMPORE Judgment 1. On the commencement of day three of the hearing, I raised with Mr Catsanos SC as to the precise amount of the claim for domestic and personal assistance. I raised this because during the evidence of the plaintiff's daughter, Ms Yel, on day two, she had been asked to estimate how much care she provided to the plaintiff on a daily basis. She suggested four to five hours per day. That evidence was given in evidence‑in‑chief. 2. In cross‑examination, Mr O'Dowd appropriately and skilfully cross‑examined Ms Yel as to that estimate, seeking to break down the estimate with reference to certain specific tasks that Ms Yel said she performed. However, at the end of her evidence, I was left with her estimate given in‑chief and the effect of cross‑examination. On review of the statement of particulars and indeed, the schedule of damages filed by the plaintiff on 22 June 2022, I observed that the plaintiff's claim for domestic and personal care was limited to approximately three hours per week. 3. Indeed, it was limited to the estimate given by the plaintiff's occupational therapist, Ms Skibby. As Ms Skibby was to be called to give evidence at the commencement of day three, it seemed to me to be appropriate to understand what claim the plaintiff was making before cross‑examination commenced. Mr Catsanos SC sought to amend his particulars to increase the estimate from that contained in Ms Skibby's report to the figure of five hours per week, having regard to the evidence of Ms Yel. 4. Mr O'Dowd on behalf of the defendant opposes that amendment to the statement of particulars, citing prejudice. He then said that he would have "gone harder" on Ms Yel in cross‑examination if he had known that the claim was for a greater amount. 5. I raised with Mr Catsanos SC whether it was significant that the defendant had not obtained its own occupational therapist report. Mr O'Dowd took up that issue suggesting, as I understood it, that that was also an aspect of prejudice. That is, the defendant had decided not to obtain its own occupational therapist report having regard to, presumably, its assessment of Ms Skibby's report and presumably, its own views as to how it could cross‑examine Ms Skibby to achieve a better result. 6. The defendant does not accept Ms Skibby's estimate or opinion and wishes to challenge it. Ms Skibby is here for cross‑examination. Further, both the plaintiff and the plaintiff's daughter, Ms Yel, remain available for further cross‑examination if necessary. Mr O'Dowd disavowed any wish to further cross‑examine them. Again, I can understand why. 7. It is well-known that in these sorts of cases, the claim for domestic and personal assistance, whether it be gratuitous or commercial, is a movable feast. Witnesses give different estimates as to the amount of care they provided and those estimates are sometimes changed during cross‑examination. Further, in most cases, there are competing occupational therapists, although again, I hasten to add that in some cases the need for occupational therapist reports is somewhat obscure. 8. Having said that, the plaintiff has pleaded a case that involves approximately three hours per week. Even days before the commencement of the hearing, the plaintiff gave notice to the defendant that the claim would be based on Ms Skibby's report, which as I understand it, is approximately three hours per week. It seems to me that, in circumstances in which the plaintiff is claiming the cost of commercial care going forward, and in circumstances in which the defendant requested particulars of that claim and was met with a response by the plaintiff of merely referring to the report of Ms Skibby, the plaintiff must be bound by the information contained in the statement of particulars and indeed the response to particulars in respect of the claim going forward for commercial care. 9. I hasten to add that, at least in my view, the estimate or opinion of Ms Yel as to the amount of care that she says she provides is hardly determinative of the need for care going forward on a commercial basis. I am not in any way suggesting that the plaintiff should have been alive to Ms Yel's evidence as evidence emerges during examination‑in‑chief which might be somewhat different to instructions. 10. However, the issue is somewhat different in respect of the claim for past care. The claim for past care is based on gratuitous care rather than commercial care. The person who has been providing that gratuitous care was called to give evidence and gave an estimate. The defendant had the opportunity to cross‑examine that person and did so appropriately. 11. I have difficulty with Mr O'Dowd's submission, so to speak, that he would have gone harder if the claim was based on five hours rather than three hours. I am not sure what Mr O'Dowd might have done differently if the claim was based on five hours, as opposed to three hours. Nor do I accept that it would have been appropriate for the defendant to obtain an expert's report merely to deal with some estimate given by the plaintiff's daughter as to the amount of care she provided. Again, in my experience, the appropriate way to deal with a claim for past gratuitous care is the way in which the defendant has dealt with it. 12. In the circumstances, I will allow the plaintiff to amend her claim for past care to reflect the estimate of Ms Yel. But I will not allow the plaintiff to amend her claim for future commercial care as she has clearly foreshadowed that that claim is based entirely on the evidence of Ms Skibby, even when answering particulars.