Supreme Court New South Wales Medium Neutral Citation: Judaline Marion Younes v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451 Hearing dates: 4 May 2012 Decision date: 08 May 2012 Jurisdiction: Common Law Before: Bellew J Decision: 1. The summons is dismissed. 2. The plaintiff is to pay the defendant's costs. Catchwords: PRACTICE AND PROCEDURE - application pursuant to s. 140 of the Civil Procedure Act 2005 for transfer of personal injury proceedings from District Court to Supreme Court - where procedural history in District Court evidenced breaches by the plaintiff of her duty to the court to comply with relevant orders - where there was delay in bringing application for transfer of proceedings in circumstances where hearing date fixed in the District Court - whether court satisfied that damages would be likely to exceed the jurisdictional limit of the District Court - nature of the task of the Court in determining whether it is so satisfied Legislation Cited: Civil Procedure Act 2005 Cases Cited: Bowditch v Hoey (SC (NSW) unreported 6 February 1997) Johnstone v State of New South Wales [2006] NSWCA 105 Sanderson v Kirby [2000] NSWSC 924 Category: Procedural and other rulings Parties: Judaline Marion Younes - Plaintiff QIC Ltd trading as Westpoint Blacktown - Defendant Representation: S King - Plaintiff K Ruschen (Solicitor) - Defendant Solicitors: Russo and Co - Plaintiff Yeldham Price O'Brien Lusk - Defendant File Number(s): 2012/123985 Judgment INTRODUCTION 1By a statement of claim filed on 4 August 2009 in the District Court of New South Wales, the plaintiff commenced proceedings against the defendant seeking damages in negligence arising out of an incident on 10 June 2006 when the plaintiff allegedly slipped and fell whilst on the defendant's premises. 2As matters presently stand, those proceedings are listed for hearing in the District Court commencing on 5 June 2012 with an estimate of three days. 3By summons filed on 19 April 2012, the plaintiff has sought an order pursuant to s 140(1) of the Civil Procedure Act 2005 that the proceedings be transferred to this Court. 4The summons is supported by two affidavits of Abe Schwartz, the plaintiff's solicitor, affirmed on 17 April 2012 and 3 May 2012 respectively, to which no objection was taken. 5The order sought in the summons is opposed. In support of its position, the defendant filed three affidavits, namely an affidavit of Katherine Anne Ruschen, solicitor, sworn 26 April 2012, along with two affidavits of Natasha Jane Cannon, solicitor, affirmed on 27 April 2012 and 2 May 2012 respectively. There was no objection taken by the plaintiff to the defendant's affidavit material. THE HISTORY OF THE PROCEEDINGS IN THE DISTRICT COURT 6The proceedings in the District Court have a long history, upon which the defendant placed considerable reliance in its opposition to the making of the order sought. It is therefore necessary for me to set out aspects of that history in some detail. 7Following the commencement of the proceedings a pre-trial conference was held in the District Court on 12 August 2009. On that occasion, the plaintiff was ordered to file and serve all expert reports, as to both liability and damages, on or before 19 October 2009. The plaintiff failed to comply with that order. 8The matter was next before the court on 13 January 2010, at which time a further order was made requiring the plaintiff to serve all relevant reports, along with final particulars, on or before 31 March 2010. 9For the second time, the plaintiff failed to comply with the court's order. In a letter of 22 March 2010 the plaintiff's solicitor sought to explain that failure in the following terms: "Please note that Mrs Younes has been referred to a psychologist for 12 sessions of treatment which she started this month. We expect a delay in providing you with final particulars and medical reports and cannot suggest an amended timetable at this stage." 10The plaintiff's solicitor then wrote to the Judicial Registrar of the District Court on 3 June 2010 and advised him as follows: "The plaintiff cannot serve all her expert and medical reports nor final Pt 15 r 12 particulars until later this year. In February last she was referred for the first time since her injury in June 2006 to a psychologist for treatment because she was experiencing difficulty with pain management, daily domestic frustrations and mood swings. A course of 12 sessions were started and she will be reassessed in September 2012. The defendant was advised by letter dated 22 March 2012. In March 2010 the plaintiff, for the first time since her initial injury in 2006, was referred to a plastic surgeon for scar revision. She is presently on a waiting list for that procedure which she expects to have in the next few months. The plaintiff has experienced minor but now significant recurring neurological difficulties from the site of her injuries (to the right wrist) up her arm and will be referred to a consultant neurologist. After completing her psychological, neurological and surgical treatment we can then obtain reports from each specialists, including the necessity for costs for any further treatment, and finalise the Pt 15 particulars." 11The matter came before the Judicial Registrar on 7 June 2010. On that day, an order was made requiring the plaintiff to serve all medical reports, along with final particulars, by 1 October 2010. 12For the third time, the plaintiff failed to comply with the court's order. On 18 November 2010 (almost two months after the date on which evidence was required to be served) the plaintiff's solicitor wrote to the defendant's solicitor and stated (inter alia) as follows: "We...advise that final medical reports will be obtained after Mrs Younes completes the course of session with her treating psychologist. She will undergo cosmetic surgery next week and a medical report will be obtained early in the new year." 13The evidence before me includes a report from the plaintiff's treating psychologist, Ms Erne, dated 21 December 2010. On that occasion Ms Erne reported that although the plaintiff attended her on 7 December 2010 in order to (as Ms Erne put it) "request Court support documentation", the plaintiff's return to normal levels of psychological functioning had resulted in the cessation of psychological treatment on 15 October, 2010. The letter from the plaintiff's solicitor to which I referred in [12] above was written more than one month after that date. To the extent that the letter inferred that the plaintiff's psychological treatment was ongoing, and to the extent that it proffered the fact of such ongoing treatment as an explanation for the inability to serve a final medical report, it does not appear to have represented the correct position. 14On 23 November 2010 the plaintiff's solicitor wrote to the Judicial Registrar of the District Court in the following terms: "The plaintiff will undergo surgery to her right wrist on 16 December 2010 and a (sic) requires several weeks of recovery before a report can be provided. She will also complete her course of treatment with her psychologist before a report can be prepared. Both reports are expected in February or March 2011. The timetable that was ordered on 7 June 2010 could not be complied with as the plaintiff has not completed the various treatments set out in our email 3 June 2010." 15The reference to the fact that the plaintiff "will also complete her course of treatment with her psychologist" was, in light of the evidence before me, not indicative of the correct position. Ms Erne's report unequivocally states that the plaintiff's psychological treatment ceased on 15 October 2010, more than a month before the letter to the Judicial Registrar was written. 16The matter came before the Judicial Registrar for further directions on 20 December 2010. On that occasion an order was made that the plaintiff serve all medical reports, along with final particulars, by 31 March 2011. 17The plaintiff failed to comply with that order. As had been the case on the occasions of her previous failures to comply with orders, the defendant's solicitor, yet again, was forced to write to the plaintiff's solicitor and enquire as to when service of particulars and evidence might be expected. This enquiry brought a response from the plaintiff's solicitor on 5 May 2011 which was partly in the following terms: "We ..... confirm we will provide further particulars and reports in addition to those already served and produced in answer to the defendant's subpoena. Mrs Younes underwent revision of her scaring on 10 March 2011 and may require further surgery. We have not received final reports to serve and will do so at the earliest opportunity." 18The matter then came before the court on 14 June 2011. On that occasion, a further order was made requiring the plaintiff to serve all medical reports upon which she intended to rely along with final particulars by 31 October 2011. 19For the fifth time in succession, the plaintiff failed to comply with the court's order. However, on 25 November 2011 the plaintiff's solicitor wrote to the defendant's solicitor serving two medical reports, namely: 1.a report of Dr Tina Erne, the plaintiff's treating psychologist, dated 21 December 2010 (to which I previously referred); and 2.a report of Dr Clive Sun (who had examined the plaintiff for medico legal purposes on 21 March 2011) dated 31 March 2011. 20Those reports were served under cover of a letter which was partly in the following terms: "We are redrafting the Pt 15 particulars to incorporate the relevant parts of these reports and to update the economic loss particulars and will file and serve them at the earliest opportunity." 21In the context of the submissions made by the defendant about the delay in bringing the present application, the reference in that correspondence to Part 15 particulars being redrafted is significant. At this stage it is sufficient to note that on a fair reading of the correspondence, the plaintiff's solicitor represented that he was in the process of such drafting at that time. 22On 13 December 2011 the plaintiff's solicitor wrote to the defendant's solicitor advising of a proposed application that the matter be placed in what was referred to as the "not ready list". He also wrote to the Judicial Registrar in similar terms. When the matter came before the Judicial Registrar of the District Court on 19 December 2011, such application was formally made but was opposed by the defendant's solicitor. 23The evidence before me includes a transcript of the proceedings before the Judicial Registrar on 19 December 2011. When the Judicial Registrar enquired as to the basis of the application to place the matter in the "not ready list" the plaintiff's solicitor responded in the following terms: "She cannot fully instruct me. I mean, Judicial Registrar you appreciate that a euphemism, she doesn't have the money." 24In light of the submissions made to me on behalf of the plaintiff, to which I will return, it should be noted that the appearance of the plaintiff's solicitor before the Judicial Registrar on 19 December 2011 represented the first occasion on which the plaintiff's impecuniosity was expressly advanced as an explanation for her previous failures to comply with the court's orders. 25The plaintiff's solicitor is then recorded as saying the following: "She can't pay for reports, so even if it goes before a judge the same issues will arise, until she can pay for reports. Doctors and experts these days, they will not give you a report. There is one report for example referred to in the affidavit which is dated 31 March by Dr Sun, the rehabilitation specialist, that's the date of the report. We didn't get it until November because my client couldn't put me in funds, so the delay is there. She too is anxious to dispose of this as she can but if she is not in a position to pay for the reports, we are confronted with a dilemma that confronts many plaintiffs" (emphasis added). 26When the judicial registrar enquired as to the circumstances in which the report of Ms Erne was obtained, the plaintiff's solicitor responded: "She was the treating psychologist, her report was also provided at the same time but it was dated I think November or December or last year...and it was obtained some time, I'm not sure exactly when, but in turn you have got to pay for reports before you can get them and that includes all experts, including treating doctors' reports. They won't just give you reports like in the old days" (emphasis added). 27Paragraph 4 of the affidavit of Ms Cannon of 27 April 2012 deposes to a conversation she had with Ms Erne on that day, at which time she enquired as to when Ms Erne provided her report to the plaintiff's solicitor. Although she could not find any documentary record in this regard, Ms Erne stated (by reference to other information available to her) that her report was provided no later than 7 January 2011. This is consistent with the fact that the report is dated 21 December 2010. It is not consistent with what the Judicial Registrar was told by the Plaintiff's Solicitor. Moreover, Ms Cannon's evidence has not been challenged by the plaintiff's solicitor in the proceedings before me. 28Further, annexed to Ms Cannon's affidavit is a copy of the letter of instruction from the plaintiff's solicitor to Dr Sun confirming the arrangement for medico-legal assessment to take place on 21 March 2011. That document, which was apparently obtained under subpoena, contains the following handwritten notations: "1. 21/3/11 send inv prepayment $1200 + gst" "2. 22/3/11 late cancellation $300 + gst" 29Under those notations appears the following: "Pd 16/4" 30Given paragraph 1 of Dr Sun's report there is no doubt that his examination of the plaintiff was carried out, as arranged, on 21 March 2011. The report itself is dated 31 March 2011. The defendant has submitted that the evidence of the handwritten notation set out in [29] above supports a conclusion that the relevant fee for Dr Sun's report was paid on 16 April 2011, and that the report was forwarded to the plaintiff's solicitors shortly thereafter. Such a conclusion is at odds with the information provided by the plaintiff's solicitor to the Judicial Registrar. Again, the evidence of Ms Cannon has not been challenged by the plaintiff's solicitor. 31The issues surrounding the provision of Dr Sun's report are further complicated by the fact that on 20 September 2011 the plaintiff's solicitor wrote to Dr Sun seeking to arrange a "supplementary appointment for (the Plaintiff) to provide (Dr Sun) with the evidence she will give in court regarding the domestic assistance provided by her family in 2006". That letter arose, in part, from the fact that the plaintiff sustained further injuries in two subsequent incidents, one in 2009 and the other in 2009. In this regard, the letter concluded: "We appreciate that her subsequent injuries have contributed to her need for such (domestic) assistance but we need to separate her (2006) claim from those subsequent injuries. We cannot serve your report until this point has been dealt with." 32The defendant has submitted that the reference to "your report" supports a conclusion that a report of Dr Sun was in the possession of the plaintiff's solicitor at least by September 2011. That conclusion, if drawn, would again be inconsistent with the information provided by the plaintiff's solicitor to the Judicial Registrar on 19 December 2011. 33Further, the affidavit of Ms Cannon of 2 May 2012 deposes to a conversation she had with Dr Sun on 1 May , who told her that he had in fact provided two reports to the plaintiff's solicitor. In particular, Dr Sun told Ms Cannon the following: "Both reports are dated 31 March 2011. After receiving the letter from the plaintiff's solicitors in September 2011 I did not see Mrs Younes again so I just used the same body as my first report and changed the report on page 4 in relation to domestic assistance. I changed the second last paragraph on page 4 of the report to read as follows: Despite the second injury in 2008 Mrs Younes has improved and was able to manage some light domestic chores. Her ongoing needs from 2008 I estimate to be 6 hours of domestic assistance per week." 34The second last paragraph of the report of Dr Sun which was served by the plaintiff, and which is before me, includes a paragraph in the terms outlined by Dr Sun in his conversation with Ms Cannon. Accordingly, it seems clear that this report is the second, or "amended", report prepared by Dr Sun. The precise content of the first report, and particularly that part of it which dealt with the issue of domestic assistance, remains unknown. This aspect of the matter gives rise to a number of further questions. Those questions include the basis upon which Dr Sun expressed his opinion about the level of the plaintiff's need for domestic assistance, in circumstances where he was requested to, but apparently did not, examine her on a second occasion. 35In any event, and unsurprisingly given the history of the matter, the Judicial Registrar was not prepared to accede to the application made on behalf of the plaintiff that the matter be placed in the "not ready" list. He proceeded to list the matter for hearing on 5 June 2012 with an estimate of three (3) days and ordered that: 1.the plaintiff serve any expert architectural or engineering report in relation to liability by 23 March 2012; 2.the defendant serve any report in reply by 4 May 2012; and 3.the plaintiff would not be permitted to rely on expert evidence unless served within the times specified in order 1. 36Upon the making of orders (1) and (2) the defendant's solicitor requested the Judicial Registrar to extend the terms of order (1) so as to include the service of medical evidence. That application resulted in the making of order (3). 37Although an expert report as to liability has recently been served by the plaintiff, the date of 23 March 2012 passed with no further medical evidence being served. However, on 26 March 2012, the plaintiff's solicitor wrote to the defendant's solicitor in the following terms: "We enclose the following: 1. Draft "amended statement of particulars" and note that the plaintiff's claim for special damages approximates $700,000. In the circumstances we propose to transfer her claim to the Supreme Court and request you advise your instructions to consent such transfer or extend the jurisdiction of the District Court in accordance with s 51 of the District Court Act 1973." 38As I have already noted, the letter of the plaintiff's solicitor of 25 November 2011 advised that he was "redrafting the Pt 15 particulars" so as to reflect the opinions of Ms Erne and Dr Sun, and to update the particulars of economic loss. The amended particulars served under cover of the letter of 26 March 2012 are obviously the "redrafted" particulars to which the earlier correspondence referred. This much is clear from a comparison between the amendments and the contents of the report of Dr Sun. It was shortly after the service of the draft amended particulars that the present application was brought. Why the preparation of the amended particulars took four months has not been satisfactorily explained. THE PLAINTIFF'S CLAIM FOR DAMAGES 39The plaintiff's principal injury as a result of the incident was a fractured wrist. The draft amended particulars served by the plaintiff's solicitor under cover of the letter of 26 March 2012 set out the following heads of damage: 1.Past out of pocket expenses - in respect of which there was no final calculation; 2.Future out of pocket expenses - $23,000.00 (which were said to be "approximate"); 3.Past domestic assistance - $119,000.00; 4.Future domestic assistance $118,000.00; 5.Past economic loss $180,000.00 (plus loss of superannuation); and 6.Future economic loss $200,000.00 (plus loss of superannuation). 40The plaintiff's solicitor filed an affidavit of 3 May 2012 in which, having referred to the fact that he has had some thirty years experience in personal injury litigation, he deposed to having made an assessment of the plaintiff's damages in a range of between $830,000.00 to $875,000.00. Apart from those amounts attributed to non economic loss, past out of pocket expenses and superannuation in such assessment, remaining amounts are simply a replication of those which appear in the draft amended particulars. For the purposes of the present application, those amended particulars amount to evidence of what the plaintiff claims under certain heads of damage. In respect of those heads of damage, they represent the plaintiff's case at its highest. The simple transposition of those amounts from the draft particulars into an affidavit does not clothe them with some additional evidentiary value. 41The defendant, in response, set out what it submitted was the appropriate assessment of damages in the present case. In some respects, that assessment proceeded upon the assumption that the medical opinions upon which the defendant relied, in particular the report of Dr Morris, would be accepted in its totality. In those respects at least, the defendant's assessment also represented its best position. THE RELEVANT STATUTORY PROVISIONS 42Section 140 of the Civil Procedure Act 2005 is in the following terms: 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) ... (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) ... (5) ... 43The discretion conferred by s. 140(1) is restricted, in the circumstances of present case, by s 140(3)(b)(i) which prohibits the transfer of proceedings unless 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 which, for matters of this nature, is currently an amount of $750,000.00. Neither party advanced an argument that the provisions of s 140(3)(b)(ii) applied in the present case. 44Further, and particularly in light of the submissions made by the defendant, the provisions of s 56 of the Civil Procedure Act 2005 are also relevant. Those provisions are in the following terms: Overriding purpose 56 (1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose. (4) ... (5) ... (6) ... THE RELEVANT PRINCIPLES 45The terms of s 140(1) do not set out particular considerations which are relevant to the exercise of the discretion. However, the parties in the present case accepted that the general facts and circumstances of the case, and in particular the procedural history of the litigation to date, were relevant considerations (see Sanderson Pty Ltd v Kirby [2000] NSWSC 924). 46Further, and as I have noted, the provisions of s 140(3)(b)(i) limit the discretion. In determining the present application, I am obliged to direct attention to the precise wording of the provisions of s 140(3)(b)(i) and to consider whether or not I am satisfied of the matters set out therein. 47I was referred in the course of argument to a decision of Master Greenwood in Bowditch v Hoey (SC (NSW) unreported, 6 February 1997) where the Master observed: "The fact that there is evidence to support the plaintiff's claim must, generally speaking, be the yardstick against which the plaintiff's claim is measured." 48Counsel for the plaintiff relied upon this passage in support of her submission that I would be satisfied of the likelihood of the plaintiff, if successful in the proceedings, recovering damages in excess of $750,000.00. 49However, in Johnstone v State of New South Wales [2006] NSWCA 105, when dealing with the provisions of s. 145(2) of the District Court Act (the terms of which were similar to those of s. 140(3)(b)(i) of the Civil Procedure Act) Giles JA observed (at [14] and [16]): "The judge was obliged to direct attention to the words of s 145(2), and to the question whether he was satisfied that the amount to be awarded to the claimant, if successful, would be likely to exceed $750,000.00. ..... Bowditch v Hoey was ... decided prior to s 145 taking its present form, and prior to the question posed by s 145(2) as a bar to removal of the proceedings. What the Master said is equally not to the point in the judge's decision." 50Further, I am not required, in determining the question posed by s. 140(3)(b)(i), to engage in a preliminary trial of the matter. In particular, and notwithstanding the approach adopted by the parties, I am not required to engage in an individual assessment of each head of damage under which a claim is made for the purposes of determining whether I am satisfied of the likelihood of the plaintiff's damages exceeding an amount of $750,000.00. In this regard, I note that in dealing with a submission that the primary judge had failed to give sufficient reasons, Giles JA in Johnstone v State of New South Wales (supra) observed (at [22] - [23]): "Plainly (the Judge) was not to engage in an exercise of complete assessment, but was to arrive at a likelihood, and of necessity he had to do so to an extent as a matter of impression, albeit founded on the evidence before him. ..... It was submitted that the judge should have gone to each of the items in the assessment and stated his own assessment in substitution for that proposed on behalf of the claimant, so that it was demonstrated quasi-mathematically that the threshold of $750,000.00 was not achieved. I do not think that is correct. The question for the judge was not an assessment of the individual components of a damages claim, but rather the broader question of whether it appeared likely to him that if the claimant were successful his damages would exceed $750,000.00." THE SUBMISSIONS OF THE PARTIES 51On behalf of the plaintiff, Ms King firstly submitted that although the procedural history of the litigation was a relevant matter for me to take into account, the failures on the part of the plaintiff to properly prepare her case and comply with orders of the court were due to the fact that she was not in a position to fund the litigation. That, she submitted, was a circumstance which faced a number of plaintiffs in personal injury litigation and was not a factor tending against the making of the order sought. 52Secondly, she submitted that there was no appreciable delay on the part of the plaintiff's solicitor between the time of receipt of the medical reports of Dr Sun and Ms Erne, and the provision of amended particulars which were the catalyst for the present application. In this regard, she submitted that any delay was explicable on the basis that (inter alia) the holiday period intervened between the time at which the reports were received, and the time at which the particulars were provided, and notice of the present application was given. 53Thirdly, she submitted that on the whole of the evidence I would be satisfied of the likelihood of the plaintiff recovering damages in excess of $750,000.00 if successful in the proceedings. 54Ms Ruschen, for the defendant, firstly submitted that the procedural history of the matter militated very much against the making of the order sought. In particular, she submitted that the making of such an order would involve an exercise of discretion which was generally at odds with the provisions of s 56(2) of the Civil Procedure Act, and in particular, at odds with the just, quick and cheap resolution of the proceedings. In these respects she relied not only upon the plaintiff's repeated breaches of her duty to the court imposed upon her imposed by s. 56(3) of the Civil Procedure Act, but also upon the evidence pointing to the time at which relevant medical reports were received by her solicitor. In that respect, she relied upon the delay in the provision of the amended statement of particulars, and the subsequent filing of the present application. She pointed out that on any view, that delay was at least four months and that depending upon what conclusion was reached about precisely when it was that the plaintiff's solicitor received the reports of Ms Erne and Dr Sun, such delay well have been substantially longer. 55Secondly, Ms Ruschen submitted that even on the plaintiff's own evidence, but particularly taking into account the medical evidence upon which the defendant relied, I could not be satisfied that her damages would exceed the sum of $750,000.00. In particular, she submitted that on a proper analysis of the evidence, the assessment of the plaintiff's likely damages by her solicitor was inflated. 56Thirdly, Ms Ruschen submitted that if the order sought was made there would be unfairness visited upon the defendant arising out of the fact that the hearing would, in all likelihood, not take place until well into 2013. Quite apart from the delay itself, and the likely additional costs which the defendant would necessarily incur, she pointed out that in circumstances where liability was in dispute, the defendant had determined that any claim for recovery or contribution should be considered following the completion of the principal proceedings. She submitted that if the proceedings were transferred, and in light of the expiration of the limitation period, the defendant was at risk of a claim for contribution or recovery becoming statute barred before having the benefit of a judgment in the current proceedings. In response, Ms King submitted that this was an irrelevant consideration. She argued that if the defendant chose to make forensic decisions about the manner in which it conducted its case, it was necessarily bound by those decisions and that, in such circumstances, it was not open to the defendant to rely upon such a factor in opposition to the making of the order. DECISION 57I accept the submission of Ms King regarding the forensic decisions made by the defendant in relation to its conduct of the proceedings. Those are decisions which have undoubtedly been made by the defendant with the benefit of advice from its solicitor as to its prospects of success in the proceedings, and are decisions by which the defendant is bound. They do not, in my view, constitute a factor which favours refusal of the present application. 58However in my view, the plaintiff's application should nevertheless be refused for a number of other reasons. 59Firstly, and without dealing with every aspect of the procedural history of the matter, the plaintiff has, since she commenced these proceedings, displayed a complete disregard for the orders of the District Court. In doing so, she has failed to comply with her duty to assist the Court which is imposed upon her by s. 58(3) of the Civil Procedure Act. 60I do not accept the submission made on behalf of the plaintiff that such failures have arisen out of impecuniosity. As the summary of the matter's history clearly demonstrates, that issue was not raised until December 2011. By that time, the litigation had been on foot for almost two and a half years. During that period the plaintiff's solicitor advanced a number of explanations for the delay in the progress of the matter, and for the plaintiff's repeated failures to comply with orders of the court. On my reading of the evidence it was not until late 2011 that impecuniosity was advanced as an explanation. Put simply, the plaintiff has done little to properly advance her case in the almost three year period since the statement of claim was filed. 61Further, I do not accept the plaintiff's submission that there has been no relevant delay in serving the amended particulars and bringing the present application. The report of Dr Sun, which, in large measure, appears to have been the basis on which the amended particulars were prepared, was in the hands of the plaintiff's solicitor by 25 November 2011 at the very latest. The letter of that date serving the report unequivocally represented that the plaintiff's solicitor was in the process of re-drafting the particulars. The amended particulars were not provided until 26 March, almost four months later and the present summons was not filed until 19 April 2012. That delay has not been properly explained. The report of Dr Sun is only three and a half pages in length. Reading the report, and drafting amended particulars on the basis of its contents, would hardly have been an onerous or time consuming task, particularly for a person in the position of the plaintiff's solicitor who deposed, in his most recent affidavit, to having some thirty years experience in personal injury litigation. 62I must also observe that the affidavit evidence of Ms Cannon, which as I have noted is unchallenged by the plaintiff, points in favour of a conclusion that the reports of Dr Sun and Ms Erne may well have been in the possession of the plaintiff's solicitor long before November 2011. For present purposes, it is not necessary for me to determine whether in fact the Judicial Registrar of the District Court was provided with incorrect information when the matter came before him on 19 December 2011, or that if he was, it was with the knowledge of the plaintiff's solicitor. It is sufficient to observe that the unchallenged evidence of Ms Cannon necessarily raises concerns about what the Judicial Registrar was told on that occasion. 63Quite apart from these matters, I am not satisfied on the evidence before me that the plaintiff would, if successful, be awarded damages in excess of $750,000.00. As I previously indicated, both parties sought to engage in a complete, and quite specific, assessment of the specific heads of damage claimed by the defendant. For the reasons I have expressed, that is not the way in which I am required to approach the matter. I am required to give consideration to the broader question of whether it appears likely that the plaintiff will receive an amount in excess of $750,000.00. 64The plaintiff has relied, in particular, upon the affidavit of Mr Schwartz of 3 May 2012 to which I have already referred. In my view, that evidence is of limited weight. Quite apart from my earlier observations as to its contents, and without embarking upon an assessment of individual heads of damage, there is force in Ms Ruschen's submission that the assessment is inflated for the following reasons: (i)the claim for future out of pocket expenses includes amounts in respect of ongoing psychological and psychiatric treatment in circumstances. The report of Ms Erne (upon which the plaintiff relies) makes reference to the plaintiff having returned to normal psychological functioning in late 2010. Although there is some suggestion that the plaintiff's psychological condition has deteriorated since that time, there is evidence before me, namely a report of Mr Li, Physiotherapist, which attributes that deterioration to incidents and circumstances which are unrelated to the accident which is the subject of the proceedings, but which are in fact related to a subsequent incident on 14 October 2008; (ii)the assessment of past economic loss, which totals some $180,000.00, is based upon a wage loss of $850.00 net per week. The wage records annexed to the affidavit of Ms Ruschen (with which no issue was taken on behalf of the plaintiff) indicate that the plaintiff's net weekly earnings at the time of the accident were $643.92 pw, more than $200.00 pw less than the figure used by Mr Schwartz as the basis of his assessment; (iii)the assessment for future economic loss totals some $200,000.00. It is based upon an ongoing loss of $500.00 pw to the age of 70 in circumstances where, as I have said, the plaintiff's wage at the time of the incident was $643.92 pw. The plaintiff's only medical evidence before me as to her residual earning capacity is that of Dr Sun, who expressed the view that the plaintiff was capable of working up to 30 hours per week in her pre-accident capacity. That opinion was expressed against the background of a history provided by the plaintiff that she had been working 30 to 35 hours per week; (iv)the assessment of past domestic assistance includes the period July 2007 to July 2009 at an amount of 14 hours per week. Dr Sun, whose report constitutes the plaintiff's only medical evidence in support of this head of damage, expressed the view that the plaintiff's ongoing need for domestic assistance on and from 2008 was only 6 hours per week. In any event, there are further issues, to which I have already referred, regarding the basis of Dr Sun's opinion in this regard. 65I have also read carefully the report of Dr Morris, who examined the plaintiff on the defendant's behalf, and who expressed the view that the plaintiff was capable of full time work and required no domestic assistance at all. Whilst it will be up to the Trial Judge to assess that evidence and make appropriate findings, the opinion of Dr Morris as to the plaintiff's residual earning capacity seems broadly consistent with the history recorded by Dr Sun, namely that the plaintiff had been working 30 to 35 hours per week. This assumes some significance in circumstances where the assessment of damages for future economic loss relied upon by the plaintiff totals some $200,000.00. Moreover, as I have already noted, there are a number of issues which arise in relation to the circumstances in which Dr Sun's report was generated, and his opinion as to the level of domestic assistance required by the plaintiff. 66I have also had regard to the fact that the evidence before me establishes that since the accident which is the subject of the current proceedings, the plaintiff has been involved in two further incidents in which she sustained injury. The first was on 14 October 2008 when she fell down a flight of stairs at a railway station. According to a report of her treating physiotherapist, Mr Li, that incident resulted in injury to her neck and complaints of headache and complaints of pain to her shoulder, thoracic spine, lumbar spine, both hips and both ankles. It also saw a deterioration in her psychological condition. 67The second incident occurred on 15 April 2009 when the plaintiff was injured boarding a train and sustained injuries to her ankle and left shoulder. A report from the same physiotherapist dated 22 May 2009 makes reference to the fact that the plaintiff was "still suffering from multiple soft tissue injuries" which I take to be a reference to the injuries sustained some 5 months earlier in October 2008. 68On the evidence before me, the injuries arising from these two incidents have the capacity to bear upon the damages to which the plaintiff might be entitled in these proceedings. That they are capable of having that effect was expressly acknowledged by Mr Schwartz in his letter to Dr Sun of 20 September 2011. 69For all of these reasons, I am not satisfied that the plaintiff's damages would, if she is successful in the proceedings, exceed the amount of $750,000.00. ORDERS 70I make the following orders: 1.The summons is dismissed. 2.The plaintiff is to pay the defendant's 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: 08 May 2012