New South Wales Supreme Court CITATION : Asermely-Rivera v Neffati [2001] NSWSC 262 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 14856/92 HEARING DATE(S) : 06/04/01 JUDGMENT DATE : 12 April 2001 PARTIES : Karen Asermeley-Rivera (Pl) Moncef Neffati (Def) JUDGMENT OF : Kirby J COUNSEL : D Wheelahan QC/K Rewell (Pl) B Gross QC/G Bateman (Def) SOLICITORS : Keddies (Pl) Stewart Cuddy & Mockler (Def) CATCHWORDS : APPLICATION - Plaintiff seeking Order under Pt27 r1A Supreme Court Rules - overseas witnesses - alternative of video link LEGISLATION CITED : Supreme Court Rules - Pt27 r1A CASES CITED : Poschung v Jones (unreported, Levine J, 25.10.96) Asermely-Rivera v Neffati (unreported, Dowd J, 9.11.2000) DECISION : Ref para 24 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Thursday 12 April 2001 14856/92 - KAREN ASERMELEY-RIVERA -v- MONCEF NEFFATI JUDGMENT 1 HIS HONOUR: Dr Karen Fattouh (formerly Dr Karen Asermely-Rivera) (the plaintiff) makes application under Pt27 r1A of the Supreme Court Rules to take evidence in the United States of America. An earlier application came before Dowd J on 6 November 2000. His Honour declined to make such an order, at least until the plaintiff had given evidence and been cross examined. Background 2 Dr Fattouh was born in the United States on 14 May 1962. She remains a citizen of that country. On 23 May 1991 she was awarded a doctorate in Pharmacology by the Temple University Medical School, Philadelphia, Pennsylvania. On 28 June 1991, Dr Fattouh secured a post-doctoral fellowship with the Baylor College of Medicine, Houston, Texas. In July 1991, she travelled to Australia with her husband (Dr Jose Rivera) to attend a conference of the International Society of Neurochemistry. The conference was held in Sydney. Also present at the conference was Professor John O'Neill, Professor Emeritus of the Temple University Medical School. Professor O'Neil had supervised Dr Fattouh's doctoral thesis. 3 On 21 July 1991, Dr Fattouh and her husband caught a taxi from the city to the International Airport. In the course of the journey another taxi collided with the rear of the vehicle in which she was a passenger. Dr Fattouh says that she was thrown around inside the taxi, and experienced pain. She abandoned her flight to the USA that day. Instead, she and her husband went to the Prince of Wales Hospital, where she received treatment. She returned home the following day. 4 Upon her return to the United States, Dr Fattouh sought treatment. She felt pain in her neck and became severely depressed. According to the plaintiff, her marriage came under strain, and, in November 1991, she separated from her husband. Her husband filed a partition for divorce in February 1992. The Final Decree was made in September 1992. 5 Between 1991 and May 1995, Dr Fattouh was admitted from time to time to various hospitals. She underwent treatment, both orthopaedic and psychiatric. She attempted work, although as a secretary rather than as an academic. In May 1995, Dr Fattouh was appointed a post doctoral fellow at the National Academy of Science at the U.S. Army Medical Research Institute, Maryland. She states that she experienced considerable difficulty performing her duties. She was limited in the hours that she could work, completing approximately forty hours each week. Ordinarily, she would have expected to have worked sixty hours per week. In April 1999, her employment was terminated. Dr Fattouh believes that the termination was unjustified (since she had disclosed her disabilities before she began). She says that such incapacity as she exhibited was the consequence of the injuries sustained on 21 July 1991. The Motion Under Pt 27 Rule 1A 6 The defendant has admitted liability, although it asserts that the plaintiff was guilty of contributory negligence. According to the defendant, the plaintiff was not wearing a seatbelt. Dr Fattouh denies any such failure. She and her husband were both wearing seat belts. 7 The plaintiff, in her application before me, relies substantially upon the material which was before Dowd J. That material, however, has been supplemented by the following: · An affidavit (dated 4 December 2001) by Mr Tony Barakat, solicitor. · A number of medical reports, describing the plaintiff's present condition. · A number of statements from witnesses whom the plaintiff would seek to call in the United States. 8 The list of witnesses the plaintiff wishes to call are those identified before Dowd J. They include the following treating doctors: (a) Dr Adam Rosenblatt of the John Hopkins Institute. (b) Dr Mary Fishburn. (c) Dr Ravichandran. (d) Dr Anne Stolaine. (e) Dr John Largen. (f) Dr Linda Huginar. (g) Dr Raymond Drapkin. (h) Dr Carol LaBonte. 9 In addition, the plaintiff seeks to call Dr Bert O'Malley and Professor John O'Neill. Both were concerned with her academic career, and can speak of her potential. Her first husband, Dr Jose Miguel Rivera-Alvarado, and her husband, Dr Abousoud Fattouh, are also in a position to give relevant evidence. 10 The plaintiff has been examined by a number of specialists on behalf of the defendant, namely: (a) Dr Mark Rosenthal (b) Dr Michael Spodak (c) Dr Carol La Bonte 11 There is little, if any, common ground between the plaintiff's and the defendant's medical experts. Dr Spodak (psychiatrist), qualified by the defendant, for instance, provided the following diagnosis: (report 4 September 1998) "1. Generalized anxiety disorder in remission (300.02) 2. Phase of life problem (V62.89) 3. Probable malingering in the form of symptom magnification (V65.2). …" 12 Dr Spodak did not believe the disabilities claimed by the plaintiff were consistent with the accident she described. Any emotional disturbance which she suffered would have been short lived. 13 In contrast, the plaintiff's specialist, Dr Rosenblatt, said this: (report 8 March 2001) "You asked me if I ever formed the view that Dr Fattouh was feigning or malingering injury. My answer is an uncategorical 'no'. We are talking about an ambitious and hard working woman who has continued to pursue her goals and dreams despite considerable adversity. If Dr Fattouh is malingering, she has been doing it for ten years at the cost of her marriage and career. It is hard to imagine what she could still hope to gain at this point. While she has at times been difficult to successfully treat, I have never once suspected her of malingering." 14 The plaintiff's treating doctors, in respect of her neck pain, and associated symptoms, have expressed the view that she is disabled. In contrast, Dr Howard Moses, a neurologist qualified by the defendants, has expressed the following view: (report 22 April 1998) "This patient has sustained no organic neurological or orthopedic injury as a result of the motor vehicle accident of 7-21-91. None of the voluminous reports submitted, documented any evidence of orthopedic or neurological abnormalities since 7-21-91. According to the Rosewood Hospital records, this woman had significant psychiatric problems prior to 7-21-91. It is inconceivable that the multitude of orthopedic, neurological and psychiatric complaints that this patient has had since 7-21-91 could be the result of a minor head injury (if in fact it actually occurred). It would seem that she had major psychiatric problems and this was simply a minor intercurrent incident which she chose to blame for all of her non-organic symptoms. If she is unable to do her work as a research scientist, it is not because of the 7-21-91 motor vehicle accident. No further work-up or treatment is indicated neurologically with regard to the 7-21-91 motor vehicle accident." 15 These differences were apparent from the material placed before Dowd J. Yet, his Honour declined to make an order. Where circumstances change after the hearing of an application, a further application can be made. What new circumstances have arisen since the matter was last considered? The plaintiff pointed to the following: · First, the plaintiff is pregnant. The baby is due in July 2001. It is simply not feasible for her to travel to Australia in the immediate future. · Secondly, Professor O'Neill is unable to come to Australia. He is, from the plaintiff's perspective, an important witness. It will be remembered that Professor O'Neill supervised the plaintiff's doctoral thesis. He was in Australia, attending the same conference, shortly before the plaintiff's accident. Professor O'Neill, however, is eighty years old. His wife is terminally ill. It is the plaintiff's case that, but for injury, she would have pursued a successful academic career, which is now beyond her. Professor O'Neill is in a position to describe the plaintiff before the accident, and to support her claims in respect of her potential. Should an Order be made? 16 If this matter were to run its course, it will be necessary, in my view, to take evidence in the United States. Neither of the alternatives is, to my mind, satisfactory. The cost of bringing relevant witnesses to Australia is prohibitive (exceeding $1 million). The facility of video link is useful, and significantly cheaper, but subject to a number of limitations (see Levine J Poschung v Jones (unreported, 25 October 1996, at page 8). Where, as here, there is a significant time difference (ten hours), the need to take evidence from many witnesses, issues of credit, and marked differences between experts, I do not believe the use of video link is feasible. The estimate for the hearing is one to two weeks. 17 When Dowd J heard the application in November 2000, he, as mentioned, declined to make an order under Pt27 r1A, stating that it was desirable that the plaintiff come to Australia to give evidence. Since it appears to me inevitable that evidence will have to be taken in the United States, including from Professor O'Neill, the question arises whether there is advantage in requiring the plaintiff to first come to Australia? The defendant suggested that there were a number of advantages. · First, the issues are likely to simplify once the plaintiff has given evidence, and been cross examined. The accident occurred in 1991. There has been significant delay in bringing the matter to trial. A great deal has happened in the plaintiff's life in the meantime. She separated from her husband, and then divorced. She underwent prolonged medical treatment, both orthopaedic and psychiatric. She had three further accidents, one giving rise to a law suit, and a modest settlement. Dr Fattouh has had a number of jobs. She was dismissed by one of her employers. She filed for bankruptcy and has been declared bankrupt. She has remarried, and given birth to a child. She is about to have another child. Many of these matters are likely to be important to an understanding of the cause, or causes, of her present condition. If issues can be stripped away before the medical evidence is taken, there is likely to be a saving in both costs and time. · Secondly, the cost of taking evidence in the United States will plainly be significant. It is to the advantage of the defendant, and potentially of the plaintiff, if settlement negotiations can be undertaken before that cost is incurred. In the nature of things, serious settlement discussions are unlikely to take place before the defendant has had the opportunity of cross examining the plaintiff. 18 The plaintiff, in response to these arguments, pointed to a number of disadvantages, were she required to come to Australia. · First, it is a long journey, made the more difficult because she is suffering from a number of disabilities. She believes she is unable to make that journey. She has some medical support for that view. · Secondly, failing settlement, there will be a need to take evidence in the United States. How much more convenient, in these circumstances, they argue, to include the plaintiff's evidence in the list of witnesses to be called overseas. The whole case can be heard at the one time. · Thirdly, the plaintiff's complete case has been laid out before the defendant. It has, no doubt, made its own investigations. There is nothing to prevent it attempting to settle the matter now. Conclusion 19 The arguments are finely balanced. When I began the hearing, I was minded to make the order which the plaintiff seeks, partly because I believe that, failing settlement, it is inevitable that evidence will need to be taken in the United States. The accident happened some time ago. It is desirable that it be brought to a conclusion sooner, rather than later. 20 However, three things emerged during the course of the hearing which gave me pause. · First, settlement (which is plainly desirable) is only likely to occur, realistically, once the plaintiff has been cross examined. · Secondly, after enquiry by me, the defendant indicated that when the plaintiff came to Australia to give evidence, she could, at the defendant's expense, be accompanied by her husband, their child, and the soon to be born baby. The defendant will pay the reasonable travel and accommodation expenses of the plaintiff and her family. · Thirdly, in seeking an order under Pt27 r1A, the plaintiff is not suggesting that evidence be taken in the USA before the end of 2001, or early next year. By that time, the plaintiff may well be in a position to travel with her family. The case is not likely to be significantly prolonged, therefore, if she were to do so. I do not accept that the plaintiff is so disabled that she cannot travel at all. Until recently, as she discloses in her statement, she was working forty hours per week, although with difficulty. 21 In the circumstances, I believe it appropriate to decline, for the moment, to make an order under Pt27 r1A. 22 I reserve the question of costs. I should point out, on the issue of costs, that but for the offer by the insurer to meet the costs of the plaintiff and her family in coming to Australia, I would have been inclined to make the order which was sought. I do not under estimate the difficulties which the plaintiff will experience in travelling to Australia. However, if she were accompanied by her family, those difficulties may be significantly ameliorated. She would not then be at a disadvantage in considering any settlement proposal which the defendant may put to her. The concession made by the insurer was, therefore, significant and timely. I am inclined to think that the appropriate order, in the circumstances, is that the costs should be costs in the cause. 23 I will refrain from making such an order until the parties have had the opportunity of making submissions to me, if they wish to suggest that some other order is more appropriate. In that event, the parties should indicate to my Associate, within seven days, that that is their intention. I will then arrange for the matter to be listed at 9.00 am on a Thursday convenient to counsel. In the absence of any argument to the contrary, I will, after seven days, make an order that the costs on the motion should be costs in the cause. Orders 24 I therefore make the following orders: 1. I decline, for the time being, to make an order under Pt27 r1A. 2. The plaintiff has leave to make application to take evidence under Pt27 r1A after the completion of her evidence in chief and cross examination. 3. Costs reserved. ********** Last Modified: 04/12/2001 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.