Every v Osborne [2012] NSWSC 1437

Supreme Court New South Wales

Medium Neutral Citation: Every v Osborne [2012] NSWSC 1437 Hearing dates: 21 November 2012 Decision date: 21 November 2012 Jurisdiction: Common Law Before: Davies J Decision: 1. Summons dismissed, 2. Plaintiff to pay the Defendant's costs. Catchwords: PROCEDURE - transfer proceedings from District Court - whether it was likely if successful the Plaintiff would receive damages in excess of District Court's jurisdiction - absence of evidence for particular heads of damage - relevance of procedural history to ultimate discretion - transfer refused Legislation Cited: Civil Procedure Act 2005 Expert Witness Code Uniform Civil Procedure Rules Cases Cited: Johnstone v State of NSW [2006] NSWCA 105 Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Younges v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451 Category: Interlocutory applications Parties: Sharon Every (Plaintiff) Lamorna Osborne (Defendant) Representation: Counsel: R Chia (Plaintiff) K Burke (Defendant) Solicitors: Brydens Law Office LP (Plaintiff) Avant Law Pty Ltd (Defendant) File Number(s): 2012/353494

Judgment 1This is an application to transfer proceedings from the District Court to this Court. The proceedings commenced on 21 December 2011 and claim damages as a result of the negligence of the Plaintiff's general practitioner in prescribing an excessive dose of Epilim liquid. Breach of duty of care is an admitted. 2The significant issues in any trial will be causation of loss and the measure of damages. The causation issue arises because at a relevant time the Plaintiff had a bariatric surgical procedure of a gastric reduction by a sleeve gastrectomy. That procedure removes about 85% of the stomach. According to a report obtained on behalf of the Defendant from gastroenterologist Dr Christopher Vickers, the frequency of the symptoms that the Plaintiff commenced to suffer and has continued to suffer are very high from that procedure. This is no doubt a live issue because one of the known side effects of Epilim is gastrointestinal problems and it might be readily inferred that if she was on an excessive dose for a period, as is admitted, those problems might magnify. 3The proceedings in the District Court are fixed for hearing on 27 November 2012. The preparation for that hearing involved a timetable first of all being set on 28 March 2012. Under that timetable the Plaintiff was to complete service of medical and expert reports by 29 June 2012 and was to file and serve a final Rule 15 particulars by the same date. 4At the time the Plaintiff filed the Statement of Claim she filed a Statement of Particulars which was fairly sparse in its detail concerning anything other than injuries and disabilities. It did, however, say under the heading Particulars of Loss of Income, that "due to the consequences of the Defendant's negligence the Plaintiff is now unable to return to work in any capacity." In relation to domestic assistance it said that the Plaintiff had been provided with domestic assistance and claimed accordingly. 5In both cases further particulars were to be provided. That was no doubt why a final Rule 15 particulars was ordered to be served. The Plaintiff did not serve those particulars and on 22 August 2012 a further order was made that those particulars were to be served by 19 October. They were not served by that date and have not been served up to the present time. 6However, particulars were to some extent provided by the Plaintiff in a lengthy letter of 21 August 2012 responding to a request for particulars by the Defendant of 21 February 2012. In answer to question 21 which asked for a specification of the amount claimed in respect of loss of income setting out various particulars the solicitors for the Plaintiff stated that she would provide those particulars in due course. However, the response to question 22 made reference to the prior employment of the Plaintiff and to her approximate net earnings in two jobs that she had. 7 In relation to questions about domestic care it was said that the Plaintiff did not reach the threshold in relation to past gratuitous care but it was said that it was anticipated the Plaintiff would require eight hours of paid domestic assistance in the future. Whether that was eight hours a week or eight hours a day was not specified. 8In the affidavit in support of the present summons the solicitor for the Plaintiff, who has only latterly come into the matter, has set out in paragraph 22 of his affidavit the various heads of damages claimed with some particularisation. The solicitor has estimated that the Plaintiff may be found 45 to 50% of the most extreme case for non-economic loss which would result in an amount for that head of $241,000 to $267,500. 9In relation to future domestic assistance it was first said that a claim would be made for eight hours a day on a commercial basis but in a later paragraph the claim is stated to be for eight hours per week. Given that the Plaintiff did not reach the threshold for past gratuitous assistance it seems likely that the claim would be for eight hours per week rather than eight hours per day. The domestic assistance claim was calculated for the remainder of the Plaintiff's life expectancy at a rate of eight hours per week at $45, amounting over that time (using the multiplier) to $304,000 odd. 10In relation to loss of earnings for the past and the future the Plaintiff, it was said, would work until she was 67. The claim is said to total about $400,000. When superannuation benefits were added it would be in the vicinity of $450,000. 11 It is this material which is said to render it likely that the Plaintiff would recover damages in excess of the District Court's jurisdiction. 12A few further things need to be noted. The first is that in the Defence filed by the Defendant on 31 May 2012 there was a paragraph which said that if the Plaintiff sought to claim beyond the jurisdiction of the Court the Defendant would object and would rely on the jurisdictional limit. 13The second thing is that, contrary to the direction made in March 2012 for the service of all medical and expert reports by June, the Plaintiff, on 2 November 2012, served two reports by Dr Conrad dated 27 August 2012. There may be a number of difficulties in having those reports admitted into evidence, first by reason of the fact that they are well outside the time for the service of reports provided in Rules given the hearing is to commence on 27 November and, secondly, because one of those reports annexed to an affidavit before me would not in any sense comply with the Expert Witness Code or the principles in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 14The third thing is that no satisfactory explanation has been provided for why this application has been made at such a late stage. The details of what is claimed that are relied upon in respect of this Summons were known and notified to the Plaintiff in August of this year and it was known some two months earlier that the Defendant would not consent to the extended jurisdiction of the Court. 15I have no evidence before me, other than the assertions of the solicitor, that the disabilities being suffered by the Plaintiff are causative of the need for domestic assistance or an inability to work either at all or to any limited extent. In addition, there is evidence in the form of Notices of Assessment from the ATO for some four years prior to the incident complained of tending to suggest that the income that the Plaintiff was earning at that time was considerably less than the claim that is made. 16The appropriate way for a judge to approach an application such as the present was set out in Johnstone v State of NSW [2006] NSWCA 105 at [22] and [23]. Giles JA said, with the agreement of Santow and McColl JJA, that 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 or her that if the claimant was successful the damages would exceed $750,000. In the absence of any medical or expert evidence that the domestic assistance and the loss of income are causally related to the disabilities that the Plaintiff suffers I cannot be satisfied that if successful in the claim the damages are likely to exceed $750,000. 17The requirement to assume success of the claim is likely to mean not only that the Plaintiff establishes breach but that the Plaintiff establishes that she is entitled to damages because there is a causal connection between the breach and some loss she has suffered. I am not required, however, to assume a causal connection between individual heads of damage and the breach that is assumed. 18The further matter concerns the ultimate discretion which s 140 provides. That discretion is to be exercised having regard to s 56 and s 58 of the Civil Procedure Act 2005. In Younges v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451 Bellew J considered at [59] that the procedural history of the matter in the District Court was a relevant consideration in terms of the discretion under s 140 as informed by s 56(3). 19The procedural history in the District Court causes me to be of the opinion that any discretion that I would otherwise have exercised should be exercised against the Plaintiff. The Plaintiff's failure to comply with timetables, its ultimate failure to serve particulars prior to the hearing and the late service of medical reports all suggest that it would be inappropriate to exercise the discretion in favour of the Plaintiff. 20I cannot part from this matter without expressing the view that it seems likely to me that this case is so under-prepared on the Plaintiff's behalf that the present application is an attempt to avoid the likelihood that the Plaintiff will be forced on for hearing next week in the District Court. I say that because I should have thought that if there was expert evidence to support the matters that I am required to consider it would have been made available to me on this application. My suspicion is that there is no such evidence and the Plaintiff has realised the position she is now facing in the District Court next week. 21However, for the reasons that I have given the Summons is dismissed and the Plaintiff is ordered to pay the Defendant's costs.