New South Wales Supreme Court CITATION : CRAGO v PLEVE PTY LTD & ORS [2002] NSWSC 1251 FILE NUMBER(S) : SC 20747 OF 2001 HEARING DATE(S) : 13 December 2002 JUDGMENT DATE : 13 December 2002 LISA CRAGO (Plaintiff) v PLEVE PTY LTD T/AS THE STABLES PARTIES : (ACN 091 341 258) (First Defendant) DENNECE PTY LTD T/AS A M BUILDING SERVICES (Second Defendant) MIDIKA PTY LTD (Third Defendant) JUDGMENT OF : Levine J A J Bartley SC/C Thompson (Plaintiff) COUNSEL : S Campbell SC (Defendants) Carroll & O'Dea (Plaintiff) SOLICITORS : Goldbergs (First Defendant) P W Turk & Associates (Second Defendant) CATCHWORDS : Supreme Court Act 1970 - s76E - interim payment LEGISLATION CITED : Supreme Court Act 1970 Frellsen v Crosswood Pty Ltd & Ors (1992) 215 MVR 343 McLean v Tedman (1984) 155 CLR 306 CASES CITED : Ricci Burns Limited v Toole [1989] 1 WLR 993 Richmond Valley Council v Standing [2002] NSWCA 359 Shanning International Ltd v George Wimpy International Ltd [1989] 1 WLR 981 DECISION : See paragraphs 18 and 19 - 1 - Ex tempore: revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE FRIDAY DECEMBER 13 2002 20747 OF 2001 LISA CRAGO (Plaintiff) v PLEVE PTY LTD T/AS THE STABLES (ACN 091 341 258) (First Defendant) DENNECE PTY LTD T/AS A M BUILDING SERVICES (Second Defendant) MIDIKA PTY LTD (Third Defendant) JUDGMENT ( Supreme Court Act 1970 – s76E – interim payment) 1 HIS HONOUR: By an amended notice of motion filed on 9 December this year, the plaintiff seeks an interim payment of $20,000 pursuant to s 76E of the Supreme Court Act 1970. It is sought from the first defendant, the plaintiff's employer at the time of injury on or about 24 April 2000 when she fell over a piece of warped timber under some scaffolding in a pathway at her place of work. 2 In support of the application, an affidavit of the plaintiff sworn 20 November 2002 was read subject to one or two excepted parts. An affidavit of Diana Farah sworn 3 April was read as was one of Evelyn Faccin sworn 5 December. 3 The plaintiff's affidavit is historical as to herself, the events giving rise to the claim, and post-event matters as far as the affidavit annexes a substantial number of medical reports in support of the plaintiff's claim in relation to her injuries and disabilities. 4 Section 76E of the Act states: 76E (1) In any proceedings for the recovery of damages, the Court may, in accordance with this section, order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings. (2) The Court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings. (3) The Court may make such an order if: (a) the defendant has admitted liability, or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or (c) the Court is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant. (4) The Court may not make such an order if the defendant satisfies the Court that: (a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and (b) the defendant is not a public authority, and (c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made. (5) The Court may order a defendant to make one or more payments of such amounts as it thinks just but not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff. (6) In estimating those damages, the Court is to take into account any relevant contributory negligence or any cross-claims on which the defendant may be entitled to rely. 5 I pause at this point to draw attention to two matters. S76E(3)(c) refers to the plaintiff obtaining "judgment" for substantial damages against the defendant. I remark that the use of the word "judgment" as opposed to "an award" or to "verdict", points to the sum ultimately obtained by a plaintiff pursuant to a judgment after the litigation of all relevant issues, which on my reading of the subsection must include any issue as to contributory negligence. This of course is reinforced by the terms of s76E(6). 6 The second observation I make in relation to section 76E(3)(c) is as to the use of the word "substantial". I observe that consideration perhaps now should be given by the Legislature to the reconsideration of the terms of a beneficial statute such as is constituted by this section, when the usual difficulties attending the word "substantial" are, in my view, compounded by the comparatively recent introduction of legislation providing for tables, caps, percentages and such like. 7 Having made those observations, I pass on to note that the section in its present form has been considered by Sully J, for example, in Frellsen v Crosswood Pty Ltd & Ors (1992) 215 MVR 343. The case, on its facts is quite distant from the present one. His Honour fully reviewed other authorities to which I have been referred in the course of this application (and which I will presently just note as Ricci Burns Limited v Toole [1989] 1 WLR 993; Shanning International Ltd v George Wimpy International Ltd [1989] 1 WLR 981, as well as the editorial commentary in the Richies' Practice for this Court dealing with s76E. 8 Fundamental statements of principle are of course that the plaintiff bears the onus of persuading the Court to exercise its discretion; second, the standard of proof is the civil standard on balance of probabilities; third, it is clear that the level of satisfaction is, as it has been described, "towards the top of the flexible scale of the civil burden of proof" (Ricci Burns at 1003). That requirement itself points to another curiosity attending the application of the so-called beneficial legislation: that a higher level of satisfaction is required for present purposes than that which would apply in respect of that of which I have to be satisfied namely, in the trial of this plaintiff's action the ordinary balance of probabilities would apply as to its potential outcome. 9 Ms Crago gave oral evidence before me which was impressive as to her credit and candour. The objective of cross-examination was, as became clear in the course of submissions, to expose what the respondent has said to be real issues as to primary liability in the employer and contributory negligence in the plaintiff. The circumstances of the accident as between the plaintiff and the respondent to the motion could be described as a "trip and fall". Even using that expression it was an event on the evidence before me in this application, in the light of the medical material, that points to injuries and disabilities of substance. 10 That evidence from the plaintiff also points to there being available for litigation the issue of contributory negligence. 11 However, a submission for the plaintiff, in the context of the two matters explored by the defendant in cross-examination, I find persuasive. It was a submission to this effect: whilst one legitimately could ask what is the state of the law of negligence in Australia and have difficulty giving an authoritative answer, two things are tolerably clear. One is that in the field of public liability there have evolved standards and doctrines that can be viewed as more favourable to public liability defendants. I am grateful to Mr Campbell SC for having reminded me of the decision of about a month ago of the Court of Appeal in Richmond Valley Council v Standing [2002] NSWCA 359, and drawing to my attention in particular the observations of Heydon JA in paragraph 59 which are perfectly comprehensible in the context with which that Court was concerned. That is one area. 12 However, whatever concerns there might be or whatever doubts could be entertained as to the general state of the law of negligence, we are here concerned with the relationship of employer and employee. The short but eloquent statement of principles by the High Court in McLean v Tedman (1984) 155 CLR 306 can comfortably be viewed as still applying as a matter of principle and as a matter of good social sense to that relationship. 13 In that context of principle it is to be noted that in this present application the amount sought is extraordinarily modest. That is not determinative. That there is a need for that amount of money is not disputed. Sully J remarked in Frellsen that is not determinative either. That the defendant, that is this present respondent, has as I understand it from Exhibit 1 discharged its liabilities under the Workers' Compensation legislation to the extent of nearly $95,000 is significant but not determinative. The fact that this action is being brought in this Court and no steps taken to remove it by reason of perceived jurisdictional problems is noteworthy but not determinative. 14 At the end of which catalogue of non-determinative matters one might ask, well, what is determinative? What is determinative is the quality of the evidence both in affidavit form and oral testimony as reinforced by Exhibits A, B and C that explain what happened in April 2000 which points to a probability that the plaintiff will obtain a judgment for damages. 15 In the context of employer/employee principles of negligence, as I understand them still to apply, even if, as it must be acknowledged, an issue of contributory negligence may be litigated, and even if that issue may be determined to some extent favourably to the defendant, the view is open and is in fact taken by me that even at that point looking ahead as best one can, the probability is high that the judgment the plaintiff will obtain as is referred to under s76E(3)(c) will be an amount of money that can be characterised, even in the present day, as a substantial award of damages. 16 I have been provided with a document for submission purposes only that is the plaintiff's schedule of heads of damages. It points to a sum of some substance on any view in relation to this plaintiff, what is said to have befallen her and in relation to injuries in respect of which there is a substantial body of evidence before me as to their seriousness. 17 Whether or not to make an order under this section is a matter in my discretion. By the application of the principles to which I have referred, on the evidence that I have read and heard, and taking into account what I have observed as to the precise terms of the subsection, I am easily satisfied that the plaintiff has discharged the onus she bears and that the evidence points to the probabilities in accordance with the requisite level of satisfaction of a substantial award of damages reflected in a judgment even at the end of the litigation of issues adverse to the plaintiff. 18 Accordingly, I order the respondent, the first defendant, to pay to the plaintiff within twenty-one days the sum of $20,000. The defendant is to pay the plaintiff's costs of this application. 19 I order the return of exhibits. ********** Last Modified: 12/24/2002 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.