Cheatham v The Scout Association of Australia (NSW Branch) [2019] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Cheatham v The Scout Association of Australia (NSW Branch) [2019] NSWSC 1238 Hearing dates: 18 September 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Common Law Before: Campbell J Decision: The summons filed on the 1st of August 2019 is dismissed.

The plaintiff to pay the defendant's costs of the proceedings in this court, but such order is not enforceable until the completion of the principal proceedings in the District Court Catchwords: CIVIL PROCEDURE – Transfer of proceedings to higher Court – whether plaintiff likely to be awarded more than the jurisdictional limit $750,000 – whether test of real chance made out – held evidence does not suggest jurisdictional limit exceeded. Legislation Cited: Civil Procedure Act 2005 (NSW), s 140 Cases Cited: Cubrilo v Veljovic [2015] NSWSC 367 Younes v QIC Limited Trading as Westpoint Blacktown [2012] NSWSC 451 Category: Procedural and other rulings Parties: P. Cheatham (Plaintiff) The Scout Association of Australia (NSW Branch) (Defendant) Representation: Counsel: R. Lynch (Plaintiff) J. Sleight (Defendant)

Solicitors: Artemis Legal (Plaintiff) Thompson Cooper Lawyers (Defendant) File Number(s): 2019/239421

EXTEMPORE Judgment 1. The plaintiff has commenced proceedings in the District Court seeking damages for psychiatric injury from the Scouts Association of Australia relating to sexual abuse of a most heinous kind he allegedly suffered as a young person at the hands of a scout leader. He is now sixty years of age. 2. I am informed by Mr Lynch of counsel who appears for him in this Court that yesterday an amended statement of claim was filed in the District Court, which is annexed to the affidavit upon which he relies of Eliza Simpson affirmed on the 17th of September 2019, joining the perpetrator to these proceedings. The perpetrator has not been yet served. In the circumstances I have thought it appropriate to proceed with the hearing the summons for transfer of the proceedings from the District Court. Mr Lynch informed me that his solicitors believe they know the perpetrator's whereabouts and it seemed to me that as he has not yet been served there is no reason to hold up the hearing of this matter which is otherwise ready. In any event the perpetrator's interests could hardly be adversely affected by a transfer of the proceedings from the District Court to the Supreme Court if the application is successful. 3. The application is substantially based upon the evidence of a consultant psychiatrist, Dr Timothy Entwistle, whose report of the 20th of September 2017 is annexed to Ms Simpson's affidavit. I note that the report was extant when the proceedings were commenced in the District Court on the 8th of January 2019. 4. The power of the Court to transfer proceedings is to be found in s 140 of the Civil Procedure Act 2005 (NSW). Subsection (3) of s 140 is particularly relevant to the transfer of proceedings on a claim for damages arising from personal injury; which this is. Subsection (3) so far as material provides as a follows: Proceedings in the District Court on a claim for damages arising from personal injury or death are not be to transferred to the Supreme Court under this section unless the Supreme Court is satisfied: ... (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. The sole basis on which the Court's power is invoked is on the first ground, which I repeat, is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court which presently stands at $750,000. 1. I acknowledge that it is not necessary for the plaintiff to prove on the balance of probabilities that the damages to be awarded, if successful, are likely to exceed the jurisdictional limit. As Bellew J pointed out in Younes v QIC Limited Trading as Westpoint Blacktown [2012] NSWSC451 at [50]: …I am not required in determining the question posed by s 143(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 the amount of $750,000. In this regard, I note that in dealing with the submission that the primary judge had failed to give sufficient reasons Giles JA in Johnstone v The State of New South Wales observed: "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 had 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 $75,000 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." 1. In my own previous decision of Cubrilo v Veljovic [2015] NSWSC 367, which Mr Lynch referred me to, I said at [9]: Returning to the discussion of likeness; it does not mean more probable than not; and it requires the Court to make, as I have said, in a summary way, an assessment of whether there was a real chance of the plaintiff getting more than $750,000 in damages, if successful. That must depend upon the prospect that the favourable evidence will be accepted in preference to the defendant's evidence. I also said that a process of assessment of that real chance depended upon whether material had been put before the Court which persuades the Court that there will be evidence available at the trial which if accepted would justify an award of damages in excess of $750,000. 1. I acknowledge that given the nature of the assaults to which the plaintiff was subjected, by force of s 3B of the Civil Liability Act 2002 (NSW) it is likely that if successful his damages will be assessed in accordance with the principles of the general law rather than in accordance with Part 2 of the Civil Liability Act. I have been provided with schedule of damages which proceeds, perhaps mistakenly, on the basis that Part 2 of the Civil Liability Act applies. On that basis it is put that there is a real chance on the evidence I have received that damages may be as high as $976,500. I suppose if damages could be in that range they could be higher still, or, at the same time, somewhat less. But it is notable that of that sum some $700,000 is put forward as damages for past and future economic loss. 2. Because, as is not uncommon in these cases, of the great effluxion of time since the injury was inflicted much remains uncertain. It is suggested that the proper approach is to adopt what is sometimes referred to as a buffer approach in relation to the assessment of past and future economic loss. One can well understand that submission. Mr Lynch also pointed out that in the amended statement of particulars, a more scientific approach is propounded which focuses upon what is actually known about the plaintiff's earnings when he was working and making a comparison between those known facts and statistical average weekly earnings. Making that comparison I observe that the claim for past economic loss in the particulars is for a sum of $300,000 as a buffer and some calculations are put forward which if accepted would total $390,000. A general claim is made for the future by way of buffer. 3. Mr Sleight of counsel who appears for the defendant does not take any issue with Mr Lynch's submissions in relation to the law I should apply or the approach I should take in accordance with what Bellew J said Younis and my own decision in Cubrilo. However, he submits that the decision has to be evidence based and respectfully submits that in this particular case that a real chance that damages could exceed $750,000 is just not present. 4. If one looks at the report of Dr Entwistle one has to acknowledge that the plaintiff has been labouring under the effects of the dreadful sexual abuse for a period, as Mr Lynch puts it, in excess of forty-five years. Especially if his damages are assessed at common law the general damages doubtless could be very significant. One should not overlook the physical aspect of the abuse inflicted as well as its psychiatric consequences. 5. On the other hand it does appear that there have been other significant stressors in his life including an abusive upbringing and there is a very significant consideration that Mr Cheatham has not, it appears, undergone any real psychiatric treatment in the past for the effects of his abuse. 6. But of more concern to me on the present application is the existence of very significant physical medical problems in the past which Dr Entwistle details. Now I appreciate Dr Entwistle does not profess to do other than record other information he has received. He is a psychiatrist and not a physician, but he did receive a significant history of other medical problems for which the plaintiff has undergone medical treatment. This includes ischemic heart disease in 2008, hypertension since and a lobectomy for lung cancer in 2011. He is currently under a significant regime of medication for various conditions. There is also reference in the report to the plaintiff suffering a heart attack and a stroke and he has been in receipt of a disability support pension for many years. Other conditions are also referred to such as atypical Parkinson's disease and pseudo-dementia. Dr Entwistle thought that these last two conditions were psychosomatically driven and have completely resolved. I accept Mr Sleight's submission that in using the expression 'psychosomatically driven' he is not relying upon those matters as a manifestation of the Post-Traumatic Stress Disorder that he diagnosed as the result of the abuse. 7. One is familiar with cases of psychiatric injury, especially longstanding psychiatric injury, where alcohol abuse and abuse of nicotine may be put forward as factors tied up with the psychiatric condition as a consequence those two matters may have a connection with the psychiatric injury for the purpose of assessing damages subject to any consideration of contributory negligence. However, the evidence I have at this time in this case does not go so far. And indeed, when asked specific questions about the plaintiff's condition it is apparent that Dr Entwistle relates his incapacity for work, at least currently, to the physical medical conditions. 8. His opinion is that the Post-Traumatic Stress Disorder and previous alcohol abuse were caused by the sexual abuse. Indeed, he goes as far as to say that the alcohol abuse was directly linked to the sexual abuse. He writes: Mr Cheatham's PTSD symptoms were highly represented in his life for many years but have settled to a significant degree in the context of his move to Tasmania and his ongoing relationship with...(his former) partner. Mr Cheatham reports breakthrough symptoms of his PTSD condition at times of stress. Dr Entwistle goes on to identify other factors relevant to the plaintiff's psychological condition including abuse by his family of origin and his various very significant and life-threatening health issues, which included two strokes, a heart attack and pulmonary cancer. 1. So far as the impact on the plaintiff's capacity to work is concerned, Dr Entwistle is of the view that the abuse impacted upon his education and resulted in him leaving school early. That doubtless might have had a significant impact, I interpolate, upon his earnings during his working life. Dr Entwistle expresses this opinion: The abuse by (the perpretrator) impacted upon (the plaintiff's) employment and career particularly in the early stage, but he was able to maintain stable employment for the extended period and was reported to positions of some seniority and responsibility and gained much in the way of sense of self-esteem as result. His current existence on a (disability support pension) relates to his poor physical health rather than his psychiatric condition as a result of the abuse." (My emphasis.) I record here that the plaintiff told the doctor that at times he earned in excess of $90,000 per annum. Dr Entwistle says, "Mr Cheatham's lack of future earning capacity relates to his poor physical health." He goes on to say: The prognosis for Mr Cheatham's condition is now positive. He is no longer driven by fear to the degree he was before, albeit when under stress can experience symptoms of flashbacks and depression, but those symptoms appear limited and not incapacitating. (my emphasis.) 1. I appreciate, although the report has been in existence since September 2017 and, as I have said, was in existence at the time when proceedings were commented in the District Court that there may yet be other evidence forthcoming as the case progresses. 2. I acknowledge, as I have sought to do during the course of these reasons, that the test for transfer is not a demanding one but I am not persuaded that the evidence before me does demonstrate that there is a real chance that if successful the damages recoverable will exceed $750,000. I acknowledge of course Mr Lynch's submission that one should be astute to avoid the possibility of injustice in these cases and particularly the possibility of injustice in terms of the plaintiff not receiving his just deserts because of an arbitrary jurisdictional limit in a lower court. However, I am bound by law to assess the evidence put before me. As I have said it does not persuade me that there is a real chance damages will exceed $750,000. 3. This is an interlocutory application and if there is a material change in circumstances in the future, well, doubtless the plaintiff can consider his position; but at present I am of the view that I have expressed and in the circumstances my order is that the summons filed on the 1st of August 2019 is dismissed. (His Honour heard further argument as to costs.) 1. The defendant applies for costs. Mr Sleight argues that costs should follow the event in this Court. Mr Lynch submits I should order that costs be costs in the proceedings below. He reminds me that his client is a disability support pensioner. I am conscious of recent High Court authority on appeal from the Northern Territory that it is impermissible to deny a successful party its costs simply on the basis that the unsuccessful party is of limited means. It seems to me that these proceedings are discrete from the proceedings in the District Court and that costs should follow the event. However, I am prepared to direct that there be no recovery of the costs until the conclusion of the action in the District Court. 2. My order is that the plaintiff is to pay the defendant's costs of the proceedings in this Court, but such order is not enforceable until the completion of the principal proceedings in the District Court.