Supreme Court New South Wales Medium Neutral Citation: TT v The Diocese of Saint Maron Sydney & SS [2023] NSWSC 958 Hearing dates: 15 August 2023 Date of orders: 15 August 2023 Decision date: 15 August 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: Leave to the plaintiff to pursue a domestic care claim, subject to further orders relating to an adjournment. Catchwords: CIVIL PROCEDURE – notice of motion seeking leave to obtain expert reports relating to economic loss and domestic assistance – where care claim is substantial – adjournment allowed – suppression orders by consent Legislation Cited: Civil Liability Act 2002 (NSW) Category: Procedural rulings Parties: TT (Plaintiff) The Diocese of Saint Maron, Sydney (First Defendant) SS (Second Defendant) Representation: Counsel: Mr B Kelleher SC (First Defendant) Ms A Campbell (First Defendant) Mr T Hall (Plaintiff) Solicitors: Auslex Law Group (Plaintiff) Wotton + Kearney (First Defendant) Murphy's Lawyers Inc (Second Defendant) File Number(s): 2018/347128 Publication restriction: Suppression orders relating to the identity of the plaintiff. JUDGMENT 1. Today is the second day of the hearing of this matter. I gave leave this morning for the plaintiff to file in court a notice of motion seeking a number of orders including leave to obtain expert reports concerning economic loss and domestic assistance. 2. The motion also seeks an order for suppression of the plaintiff's name. This order was not opposed, and I will make appropriate orders in due course. 3. The need for an expert report on economic loss effectively dissolved during the hearing of the motion, it being recognised that as the plaintiff was relying on average weekly earnings for his claim, there was little need for a forensic accounting report. 4. The real argument in the motion concerns domestic care and centres not so much on the need for a report, but rather on whether the plaintiff is entitled to bring the claim at all. There can be little doubt that the plaintiff's camp has been tardy in the pursuit of the claim. 5. By way of relevant background, the statement of claim was filed on 12 November 2018. The "[p]articulars of loss and damage" state that "[f]ull particulars are contained in the Statement of Particulars filed in these proceedings". 6. In fact, a statement of particulars was not filed in 2018 and did not emerge until 4 August 2023. 7. On 3 July 2018 the solicitor for the first defendant sent an email to the solicitor for the plaintiff reminding the latter that an unanswered request for particulars of the claim had been made on 21 December 2017. The plaintiff's solicitor responded on 26 August 2018 outlining particulars of treatment, economic loss and medical expenses and, in response to a question about "[o]ther heads of damage" responded "none at this time". 8. On 7 October 2022 Garling J, in his management of the matter, made an order that all evidence in chief was to be served by the plaintiff by 2 December 2022. 9. On 26 June 2023 senior counsel then retained by the plaintiff wrote to his instructing solicitors stating that the plaintiff was "entitled to recover damages for voluntary services". This prompted the solicitors to send the first defendant, on 14 July 2023, a list of documents which refers to a statement by KU (the plaintiff's mother) giving "particulars of domestic assistance and attendant care services" but stating that the statement had not been "obtained at the time of preparation of this document". 10. On 4 August 2023 the plaintiff, for the very first time, served on the defendant a statement of particulars including a claim for domestic care at an "average of 28 hours per week". Attached to the statement of particulars was a statement of KU dated 24 July 2023, in which KU outlines the care she has provided and says this occupies an average of four hours per day. 11. On 6 August 2023 the first defendant's solicitors wrote to the plaintiff's solicitors requesting particulars of the claim. They were not provided until today. I accept that this apparent delay was, at least in part, due to senior and junior counsel for the plaintiff returning their briefs last week, no doubt leading to the "chaos" described by Mr Hall, who now appears for the plaintiff. 12. On 28 June 2023 the medical experts (both being psychiatrists) retained respectively by the plaintiff and the first defendant were asked to consider, in a joint expert conclave, the plaintiff's need for past and future care services. A record of the conclave was produced on 3 July 2023. Dr Brown, on behalf of the first defendant, recognised that the plaintiff had in recent years and was currently receiving "a high level of care." Her opinion was that rehabilitation would probably be a better course to take than continuing care. 13. Dr Klug, retained by the plaintiff, observed that the plaintiff was "effectively in care at present" and that the plaintiff was "incapable of caring for himself". Importantly, however, he also said that: "With respect to care, ultimately this should be assessed by an occupational therapist and/or a rehabilitation physician…." 1. The plaintiff's claim as outlined this morning is substantial. The claim is for four hours per day from October 2005 to the present, and then continuing care at the same level for the balance of the plaintiff's life expectancy which, on medium life expectancy tables, is about 50 years. 2. It is important to note at this stage that the plaintiff's claim is for common law damages, in other words that the damages are not to be assessed under the Civil Liability Act 2002 (NSW). The effect is that this Act will not determine the hourly rate for the care. In addition, interest will be assessed on past care and future care will attract a 3% discount rate rather than 5%. 3. The result of the application of common law damages would, if the plaintiff's claim were accepted in its entirety, result in an award in excess of $2 million. The claim is therefore very substantial. 4. Despite their differences, the two psychiatrists do agree that the plaintiff is receiving substantial amounts of care. It cannot be said that there is no basis for the claim. 5. The result is that I am faced with a psychiatrically damaged plaintiff (whatever the cause) who has an apparently genuine and substantial claim which has not been efficiently pursued. 6. The plaintiff, no doubt recognising the uphill battle that he was facing in pursuing the claim during the current hearing, submitted that, like the economic loss claim, the care claim was effectively a mathematical exercise which the court was well capable of completing. There is some merit in this argument, but it is blunted by the plaintiff's own expert stating that expert evidence is required and the defendant's expert stating that rehabilitation might be a better course, immediately raising the question of the nature and costs of such rehabilitation. 7. I asked Mr Hall to obtain instructions from the plaintiff as to whether or not he would like to proceed without the care claim or have an adjournment in order to pursue the claim. His instructions were that the plaintiff would prefer to have an adjournment than continue without the care claim. 8. It would of course be overwhelmingly prejudicial to the defendants if I were to allow the care claim to be pursued without an adjournment. 9. It became palpably clear that the care claim could not be permitted to proceed without an adjournment. However, this would leave the plaintiff in the midst of cross-examination for some time, a particularly unfortunate result for a plaintiff with significant psychiatric issues. I will discuss with the parties the possibility of the cross-examination, and other aspects of the claim, continuing as far as they can before any adjournment. Such a course will also reduce the costs thrown away by an adjournment. 10. As to whether or not the claim should be allowed, but with the benefit of the adjournment, I have decided that it should be permitted. I appreciate that the plaintiff's legal representatives have been substantially amiss in not properly pursuing the claim until, as Mr Kelleher SC, pointed out, after the midnight hour. 11. But on the other hand, this is an apparently genuine and substantial claim which would result in a significant injustice if the plaintiff were to otherwise succeed but not to be compensated for the domestic services he has and will receive. It is to be remembered that the services will be necessary in the future, perhaps for a limited time, but absent the claim, they will be provided in circumstances in which there has not been appropriate compensation. 12. The plaintiff acknowledged that he must pay the costs thrown away by the adjournment. The first defendant sought an order that those costs be payable forthwith. An order to that effect has previously been made and complied with. However, it is evident that the plaintiff is a person of limited means and that these costs could be substantial. I do not think that it would be just to make an order to this effect. 13. The plaintiff proposed some timetable orders relating to both the care claim and economic loss. I think there is merit in some of these proposed orders but have concerns in relation to the timetable. I think the parties need to consult with prospective experts before a timetable is set. 14. I have also not heard from the defendants on the orders and will do so after informing the parties of my intention to allow the care claim. I will then make appropriate orders. ********** Amendments 17 August 2023 - Amendment to Case name Pseudonyms applied to names in Judgment Amendment to Suppression Order - name of case 1. Order, until further order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that publication of: a. the name of the plaintiff; b. the name of the second defendant; and c. any information tending to reveal the identity of the plaintiff, including the names of the plaintiff's mother, sister, and cousin, be prohibited except as may be necessary for the proper conduct of the proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice. 2. Order that the order is to apply throughout the Commonwealth of Australia. 3. Order that the proceedings in this Court be known as TT v The Diocese of Saint Maron, Sydney & SS 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: 17 August 2023