Millwood v Graff [2012] NSWSC 753

Supreme Court New South Wales

Medium Neutral Citation: Millwood v Graff [2012] NSWSC 753 Hearing dates: 27/06/2012 Decision date: 27 June 2012 Jurisdiction: Civil Before: Garling J Decision: Summons dismissed. Plaintiff to pay the defendant's costs. Catchwords: PRACTICE AND PROCEDURE - application pursuant to s 140 of the Civil Procedure Act 2005 for transfer of proceedings from District Court to Supreme Court - whether court satisfied that damages would be likely to exceed the jurisdictional limit of the District Court - not satisfied Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Luke Royce Millwood (P) Gordon Graff (D2) Representation: S Moffet (P) C Coventry (D2) Warren Krass (P) Vardanega Roberts (D2) File Number(s): 2012/149886

EX TEMPORE JUDGMENT 1The plaintiff, Luke Royce Millwood, moves by a summons filed 10 May 2012 for an order that District Court proceedings numbered 2009/23959 be transferred to the Supreme Court of New South Wales. 2The proceedings were commenced in 2009 by a statement of claim filed in the District Court alleging that a cause of action existed against three defendants. The first defendant, Mr Gordon Graff, was a rugby league player who it is alleged intentionally assaulted the plaintiff in the course of a rugby league game causing the plaintiff personal injury. Mr Graff, although served with the proceedings, has never appeared and has taken no part in the proceedings in the District Court of New South Wales or in this Court. The second defendant is Wentworthville District Rugby League Club which was the club for whom Mr Graff, the offending player, was playing. The third defendant was Newtown Rugby League Football Club, the club for whom Mr Millwood, the plaintiff, was playing. 3On 30 July 2010, an amended statement of claim was filed which removed any claim against the Newtown Rugby League Club but maintained the claims against Mr Graff and the Wentworthville District Rugby League Club. 4In so far as the claim against the Wentworthville Club is concerned, it is said that it was negligent because it failed to prevent the assault by Mr Graff upon Mr Millwood, it failed to properly train and supervise Mr Graff, it failed to have a proper system for replacing players who were attempting to harm other players and it failed to remove Mr Graff from the field of play. A further particular of negligence is said to be that it failed to prevent the injury. However, that is not a particular of negligence but, rather, a statement of an allegation of a breach of a duty of care. 5The most recent statement of particulars filed in the District Court proceedings and relied upon to support the transfer of the proceedings to this Court is one filed on 9 September 2009. The statement of particulars described the particulars of injuries received by the plaintiff as being shock, a broken jaw, anxiety and depression. The particulars of continuing disabilities claim, amongst other things, an impaired ability to continue to play contact sports. 6In so far as those particulars set out a claim for loss of earnings, the particulars provide two claims which are expressed in the following way. 7The first is said to reflect an actual loss of income and is expressed as being a claim for a loss of sixteen weeks of work during 2007 and eight weeks of work in 2009 at a rate which is said to be $1,800 per week. 8The second basis for the claim is said to be a loss of earning capacity and future economic loss which is expressed in these terms: "loss of earning capacity based on a disadvantage in the open labour market as a rugby league or rugby half back. He has a history of the broken jaw incidents as a direct result of the injury which reduces his ability to perform and the history reduces the demand for his services in the relevant labour market." 9Expressed differently, and perhaps more accurately, this claim appears to be a claim by way of a lost opportunity to obtain income from the playing of rugby league, or rugby union, in a professional or semi-professional capacity. 10In so far as the evidence on this motion addresses the earnings of the plaintiff, it appears that at the time of his injury, in his job as a storeman and packer, he was earning in the order of $328 net per week. His pre injury earnings as a rugby league player seems to have been in the order of about $1500 a week. The evidence in respect of his earnings is actually very limited. In the year up to 30 June 2005, the evidence discloses that he earned $5600 net (approximately) while working for the Melbourne Storm Rugby League Club and about $3,000 net whilst working for the Sydney Roosters Club for the year ending 30 June 2006. 11A contract, which is in evidence, suggests that whilst playing for the Newtown Rugby League Club, which is what he was doing when injured, he may be entitled to match payments depending on the upon the result of the game, and the grade level at which he was playing, of somewhere between $150 and $550 per game. It is sufficient for me to say that the state of evidence about his past actual earnings from the game of rugby league is very slight. 12The principles to be applied considering whether the proceedings should be transferred to this Court derive from the provisions of s 140 of the Civil Procedure Act 2005. Section 140(1) provides this Court with a discretion to order the proceedings be transferred from the District Court to the Supreme Court. Section 140(3) limits that discretion in proceedings involving a claim for damages arising from personal injury, as these proceedings are, by providing that the Supreme Court is not to order a transfer of District Court proceedings to it unless it is satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court or that there is other sufficient reason for hearing the proceedings in the Supreme Court. 13The applicant on the summons and plaintiff in the proceedings, Mr Millwood submits that the Court would order the transfer because it should be satisfied that the amount likely to be awarded to the plaintiff, if he succeeds, will exceed the jurisdictional limit of the District Court which is presently $750,000. The applicant does not suggest that there is other sufficient reason for the proceedings to be heard in the Supreme Court. 14The second defendant opposes the transfer. It submits that on the material available there is no basis reasonably open to this Court for it to conclude the amount to be awarded to the plaintiff is likely to exceed the jurisdictional limit of the District Court. It is necessary to consider then what view I form the amount likely to be awarded to the plaintiff. 15The total of the out of pocket expenses claimed by the plaintiff is a sum a little under $3,000. The plaintiff, if he succeeds, would be entitled to noneconomic loss. It would be surprising to me if the plaintiff were to succeed in obtaining an award any greater than $200,000 for this sum, which may be a generous assessment. The question then is has the plaintiff satisfied me that he is likely to recover more than $500,000 or so by reason of diminution of his earning capacity? 16Two aspects of earning capacity are relevant. The first is his capacity to be a storeman and packer, the job he was undertaking at the time of his injury. There is no material in the evidence which would suggest that the plaintiff is unfit to do that job, except for a limited period at the time of his injury. The amount claimed is not going to substantially affect the plaintiff's likely amount of damages, even if allowed in full. 17The second component is the loss of potential as a rugby league player. Two statements have been provided as part of the evidence which suggests that the plaintiff, as a young man, had considerable talent in playing the game of rugby league. Assessments are made as to whether he was the equivalent of one or another player presently playing rugby league on a professional basis. It is suggested that if the plaintiff were contracted to play with a National Rugby League Club he might have been able to earn the sum of $55,000, plus $3,000 per game which over a season might exceed $100,000 or so. The earnings of other players to whom the player is said to be comparable are claimed to be in the region between $250,000 and $400,000. 18However, there are some fundamental difficulties with the way in which the plaintiff's claim is particularised and put before the Court. The first is, there is no statement from the plaintiff as to what the consequences of the injury sued upon, actually were. It seems to me that this is an essential, but missing, piece of the evidence, because the evidence before the Court demonstrates that the plaintiff has had in fact a number of subsequent injuries to his jaw. Whether it is to be said that those subsequent injuries were causally related to his first injury is simply not addressed by any evidence. 19Secondly, the history of the plaintiff playing rugby league leading up to the first injury and then subsequently to that and the following injuries, is not addressed by any statement. It is not clear to me when the plaintiff stopped playing rugby league, if he has. It is not clear to me on the evidence that the one or more of the injuries to his jaw or face have had any, and if so what, consequence for his playing of rugby league. It is not clear to me whether the plaintiff has ceased playing rugby league, claiming that that cessation is as a consequence of his facial injury. It is not clear to me that the plaintiff ever contemplated a career as a coach in rugby league and, if he has, whether his injury has affected this intention in any way. It is not clear to me whether other factors in the plaintiff's life affected his decision, if he made one, to cease playing rugby league. I do not know, for example, what he presently does, or whether his occupation does not permit him to play rugby league. All of these facts are completely unknown to the Court and all of these facts would be necessary for the Court to make any determination about the likely quantum of the plaintiff's claim. 20As well, the statement of particulars is clearly out of date. It does not properly particularise the plaintiff's claim. It does not set out any of the particulars which would be required for the Court to make a determination under section 13 of the Civil Liability Act 2002 as to matters necessary to establish the future economic loss claim of the plaintiff and does not seek to set out what it says the Court ought find with respect to the likely future course of the plaintiff but for the injury. 21Instead, the application has been argued on the basis that one can infer indirectly from material that a Court would be satisfied, firstly, that the plaintiff was likely to obtain a contract to play in the NRL competitions full-time. Secondly, that his skill level would have enabled him to be retained at a monetary level well in advance of the ordinary. Thirdly, that he has had no other injuries but for the facial injuries upon which his claim is based which would have precluded him from achieving his full potential. And fourthly, that the reason he has not achieved his capacity to play rugby league relates to the injuries. 22None of these matters are addressed in the evidence. It is simply insufficient, in my view, for a plaintiff bringing an application in this Court for a transfer order, to say that because he has a potential or, at least once had, a potential to earn a significant sum of money, this Court ought transfer the proceedings. The factual basis for transfer of these proceedings is simply not made out. It is not possible to be satisfied on the basis of the evidence before me that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court. 23In those circumstances, the summons is dismissed. I order the plaintiff to pay the costs of the proceedings in this Court.