Supreme Court New South Wales Medium Neutral Citation: Fuller-Lyons v State of New South Wales (No 4) [2014] NSWSC 361 Hearing dates: 8 April 2014 Decision date: 08 April 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Judgment for the plaintiff in the amount of $1,536,954.55. (2) The defendant to pay the plaintiff's costs on an ordinary basis to 3 April 2013 and thereafter on an indemnity basis. (3) The New South Wales Trustee and Guardian be appointed as the financial manager of the plaintiff. (4) Execution of the judgment be stayed on the following conditions: (a) the defendant is to file and serve any notice of appeal within twenty-eight days; (b) the defendant will not oppose any application by the plaintiff for an expedited hearing of the appeal based on the plaintiff's financial circumstances. Catchwords: COSTS - personal injury - indemnity costs application - whether Court should otherwise order because new case propounded at trial - whether time allowed to consider offer was reasonable. STAY - whether judgment should be stayed pending appeal - plaintiff and his family of limited financial means - whether arguable basis for appeal. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14 Cases Cited: - Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 - Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 - Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 Category: Consequential orders Parties: Corey Travis Fuller-Lyons (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C.T. Barry QC, G.J. Davidson (Plaintiff) A.C. Casselden (Defendant) Solicitors: AC Lawyers (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): 2008/316134 Judgment - Ex tempore 1On 15 November 2013 I published my principal judgment in these proceedings, (Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672) ("Fuller-Lyons (No 3)"). I upheld the plaintiff's claim in negligence and rejected an allegation of contributory negligence. I made various findings relevant to the determination of quantum, but deferred the question of the amount to be allowed for the costs of funds management. The proceedings were stood over to allow the parties to consider that issue. 2Having now had the opportunity to consider the matter, the parties have agreed upon the approach to assessing the costs of funds management in light of my findings. Commendably, they have also agreed on the relevant arithmetic calculations. They have put forward an agreed calculation of the judgment sum. Accordingly, I will shortly enter a judgment for the plaintiff in respect of an amount that it is agreed reflects the findings that were made. There are, however, two outstanding questions, namely, costs and whether the judgment should be stayed in whole or in part. Costs 3In relation to costs, the plaintiff relies on an offer of compromise that was served on 3 April 2013 offering to settle the proceedings for a judgment of $1.2 million in his favour, exclusive of costs and the cost of funds management. As I understand it, the defendant accepts that it did not achieve a result that exceeded that offer. It also accepts that it did not accept that offer and, subject to the points I will outline, accepts that the offer conformed with Uniform Civil Procedure Rules 2005 (NSW) 20.26 ("UCPR"). However, the defendant submits that the Court should exercise its discretion to otherwise order pursuant to UCPR 42.14(2) and decline to make an order for indemnity costs for two reasons. 4The first reason is encapsulated by paragraphs 5 and 6 of the defendant's written submissions. They are as follows: "The case initially pleaded by the plaintiff asserted that whilst standing in the vestibule between the two front sets of doors in carriage one the doors on the left-hand side had opened without warning and the plaintiff had fallen from the train. That allegation reappeared in different forms throughout each of the three versions of the statement of claim. The case that the doors had opened spontaneously was one of three possibilities opened on behalf of the plaintiff and was ultimately abandoned by the plaintiff's senior counsel. Further, his Honour's finding at [145] [of Fuller-Lyons (No 3)] that 'a CSA being present on the platform, that person was negligent in failing to keep a proper look out for the plaintiff trapped in the doors when he gave the signal to Mr Meiforth that it was safe for the train to leave', was never specifically pleaded by the plaintiff and was not formulated by the plaintiff until after oral addresses commenced. The expert witnesses who addressed the case as pleaded never addressed this new case." (emphasis in original) 5I do not think that this properly describes the manner in which the plaintiff's case was articulated. In the earlier versions of the statement of claim there was an express pleading of an alleged fact that, while the plaintiff was travelling in the train between Morisset and Dora Creek railway station the train doors opened without warning. However, in the Second Further Amended Statement of Claim filed in February 2012, that allegation was deleted. That was the pleading upon which the trial was conducted. The only reference to the doors opening without warning in that pleading was the maintenance of particular of negligence (b), which alleged that the defendant "fail[ed] to maintain the railway doors to prevent them from opening without warning". A pleading of a particular is not an assertion of a fact. From the date the Second Further Amended Statement of Claim was filed it was not asserted to be an essential, or perhaps even a material, fact to the plaintiff's case that the doors opened without warning. 6There was also included in the particulars of negligence of the Second Further Amended Statement of Claim a particular alleging that there was a "fail[ure] to observe that a door remained open when the train departed from the previous station". A moment's thought concerning that particular could, if the defendant had chosen, warranted a request to the plaintiff to identify the person or persons whom it was alleged should have made the observation. 7In any event, it was always a matter within the defendant's knowledge as to who worked on the train and at Morisset train station at the time the train carrying the plaintiff arrived and departed. It emerged during the trial that there was a Station Assistant ("CSA") rostered to work at the train station on that day. The train guard gave evidence that one of the functions of that person was to watch the train doors at the point when the train left Morisset station (Fuller-Lyons (No 3) at [45]). There was a particular need to do that at Morisset train station because the platform was curved and it was difficult for the train guard at the back of the train to observe the doors at the front of the train (Fuller-Lyons (No 3) at [45]). 8It follows that the finding that is recorded Fuller-Lyons (No 3) at [145] was one that was clearly encompassed by the case that was pleaded. 9Further, that finding was not inconsistent with the case as opened. The opening was brief. The opening did not address the bases upon which the State was said to be negligent. Instead it only addressed how the accident could have happened. In doing so, Senior Counsel for the plaintiff identified three possibilities: the first being deliberate interference with the doors of the train (which could only be a reference to the doors of the train at Morisset); the second was that the doors opened during the course of travelling between stations, and the third was what Senior Counsel for the plaintiff described as a "trap and grab", being the doors closing on the plaintiff when it left Morisset railway station. 10Over time, the second possibility was comprehensively disproved by the State. However, the findings in the principal judgment reflect something of a mixture of the first and third scenarios as outlined. Nothing in the plaintiff's Senior Counsel's opening indicated that somehow if there was a mix of findings on that topic, then their case would not succeed. To the contrary, Senior Counsel for the plaintiff simply did not address, in his opening, the question of what the alleged negligence of the State was. No doubt, had the State requested to be told, it would have been apprised of it, presumably by being referred to the particulars of negligence in the Second Further Amended Statement of Claim. 11In these circumstances, I do not accept that the basis of liability, as either finally articulated on behalf of the plaintiff or as found in Fuller-Lyons (No 3), represented a departure from the manner in which the case was opened or pleaded, and that somehow warrants the Court otherwise ordering in respect of the offer of compromise. 12The second basis upon which the defendant seeks to resist the offer of compromise is that it only allowed a period of fourteen days for its acceptance. Strictly, this is not necessarily a basis for otherwise ordering under UCPR 42.14(2) but is instead a contention that it was not a proper offer of compromise in the first place (see former UCPR 20.26(7)(b)). In any event, given the time when the offer was made, I consider that the fourteen day period was reasonable. It is to be expected that, in the three or four weeks leading up to the trial, both camps were giving serious attention to the trial's preparation. I would have expected that in this period the defendant's legal team would have been able to undertake a realistic assessment of the plaintiff's prospects and likely quantum. Accordingly, I reject the defendant's submissions in respect of the offer of compromise. I will shortly make a costs order that reflects it. Stay 13The defendant seeks a stay of the judgment pending appeal. Two affidavits have been read in relation to the application. The effect of that affidavit material is that the plaintiff and his family are experiencing significant financial hardship. This is consistent with the findings made in Fuller-Lyons (No 3). The judgment monies are very much needed to address those difficult personal circumstances. Any delay in their payment is likely to cause hardship in terms of his ongoing treatment and personal circumstances. However, the material also indicates that, as is to be expected, if the judgment monies are paid over and dissipated to the plaintiff, or his family, they will become irrecoverable in the event that an appeal succeeds. 14The defendant has referred to a passage from the judgment of Campbell JA in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 at [67] to [69] to the effect that, possibly subject to one matter, in circumstances where it is clear that if there is no stay and the appeal is successful then any judgment monies paid over will be lost, then a stay should be ordered. The potential matter of exception that should be noted is that such a principle is subject to the general considerations discussed in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 concerning the granting of a stay. One of those considerations is that while the Court does not undertake any in depth review of the arguments on the appeal, it nevertheless should make "some preliminary assessment about whether the appellant has an arguable case" (Alexander at 695E). 15In oral submissions, counsel for the defendant, Mr Casselden, made two submissions in support of the proposition that his client at least had an arguable appeal in respect of liability. First, he submitted that there was no evidence for the finding, which is referred to in Fuller-Lyons (No 3) at [6], that the plaintiff became trapped in the doors of the train when it left Morisset station "with at least one arm, one leg and part of his torso protruding from the carriage". That finding is expanded upon elsewhere in Fuller-Lyons (No 3). It derives its support from the proposition that the lesser part of the plaintiff that was located between the doors, the less likely he was able to open them in the short period between the time that the train left the station and he exited the train. 16Second, Mr Casselden submitted that there was no evidence that, at the time the train left the station, the CSA, that I referred to earlier, was performing duties on the station, including observing the doors. Otherwise, he reiterated a submission made at trial that there were a number of other possibilities as to how the plaintiff could have exited the train, including the possibility that something like a foot or drink bottle had been placed between the train doors when it left Morisset station and that enabled him to exit through the doors while the train was in transit. 17It is not an easy task, on the limited material available before me, to make an assessment as to the defendant's prospects success in the of appeal. Senior Counsel for the plaintiff, Mr Barry QC, submitted that once the Court accepted the evidence of the plaintiff's brother as to the fact that neither of the plaintiff's brothers in any way assisted the plaintiff to interfere with the doors (Fuller-Lyons (No 3) at [67]), then the various permutations as to how the plaintiff could have left the train narrowed dramatically. There is some force in that, but, nevertheless, in circumstances where the finding of liability, at least in part, depends upon the drawing of the inferences in the manner outlined in Fuller-Lyons (No 3), I am not in a position to be able to conclude that the defendant does not have a reasonably arguable appeal. 18In those circumstances, and given the evidence as to the plaintiff's means, I think it is inevitable that I must order a stay. I do so in circumstances where it is agreed that any stay will be on the condition that the defendant file and serve a notice of appeal within twenty-eight days. The defendant also put forward, as a further condition, that it will not oppose any application by the plaintiff for an expedited hearing of the appeal, based on the plaintiff's financial circumstances. This will be reflected in the orders that I make. 19Accordingly, the Court orders: (1)Judgment for the plaintiff in the amount of $1,536,954.55. (2)The defendant to pay the plaintiff's costs on an ordinary basis to 3 April 2013 and thereafter on an indemnity basis. (3)The New South Wales Trustee and Guardian be appointed as the financial manager of the plaintiff. (4)Execution of the judgment be stayed on the following conditions: (a)the defendant is to file and serve any notice of appeal within twenty-eight days; (b)the defendant will not oppose any application by the plaintiff for an expedited hearing of the appeal based on the plaintiff's financial circumstances. ********** 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: 11 April 2014