Parker v Bar Beach Bowling & Sporting Club [2020] NSWSC 565

Supreme Court New South Wales

Medium Neutral Citation: Parker v Bar Beach Bowling & Sporting Club [2020] NSWSC 565 Hearing dates: 11 May 2020 Date of orders: 11 May 2020 Decision date: 11 May 2020 Jurisdiction: Common Law Before: Campbell J Decision: Proceedings adjourned Catchwords: CIVIL PROCEDURE – application for adjournment by defendant – new material served by the plaintiff – plaintiff's claim re-particularised – interests of justice and interests of the administration of justice – no question of principle Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Category: Procedural and other rulings Parties: Jye Parker (Plaintiff) Bar Beach Bowling & Sporting Club Representation: Counsel: D Hooke SC with G Smith (Plaintiff) J Sexton SC with D Lloyd (Defendant)

Solicitors: Beilby Poulden Costello (Plaintiff) Meridian Martin (Defendant) File Number(s): 2017/212295

Judgment 1. The plaintiff claims damages for personal injury for a very serious injury involving the amputation of virtually the whole of his left arm from just below the shoulder, which occurred in an accident on 10 October 2014, when he was 23 years of age. The injury was received when a beer keg exploded. From my review of the material in the Court book, there does not seem to be any real dispute about the factual cause of this occurrence. The plaintiff was assisting to set up and test what is referred to as a portable beverage dispensing system when the explosion occurred. He did not work for the defendant. He had worked for the defendant in the past, but he was then currently employed as a barman, or cellar hand, at other licensed premises. As he was well known to the staff at the defendant Club, he was sometimes asked, if he happened to be on the premises, to assist in various ways. On the day of the accident he was asked to assist the then bar supervisor to work out why the portable dispensing system was not working efficiently. It may be, on the material that I have seen, that he had been involved earlier in connecting some components of the system. 2. The cause is simply that the gas bottle, which is an integral part of the system, which had been supplied by a different supplier from the supplier who provided the portable system, was not fitted with a gas regulator and the pressure in the gas bottle vastly exceeded the capacity of the keg to withstand it, even allowing for the keg's design factor of safety. When the plaintiff operated the system, having made some adjustments to it, the introduction of the gas into the keg at high pressure caused the keg to fail and explode. 3. What is, as I understand it, hotly in issue is the question of the legal responsibility of the Club for the plaintiff's injuries. As I have said, it was a very severe injury to a young man and on the evidence, it may be that he has done comparatively well having regard to the severe disability that the injury represents. 4. I have been case managing the matter in anticipation of this hearing since about March of this year. At the first directions hearing where Mr Hooke SC, who appears for the plaintiff with Mr G Smith of counsel, and, Ms Martin, solicitor who instructs Mr Sexton SC and Mr D Lloyd for the defendant, appeared I was informed that significant issues in relation to the quantum of damages were very much in a state of flux. It was indicated to me at that time that the plaintiff had been assessed at The Alfred Hospital in Melbourne for, specifically, his suitability for Osseointegration prosthetics but the team there, busy as they are no doubt, were not co-operating with the medico-legal process. Following a discussion at that directions hearing, it emerged that arrangements were made for the plaintiff to be referred to the team at the Macquarie Hospital headed up the well-known orthopaedic surgeon, Professor Al Muderis. 5. It seems that since the directions hearing in March, he has been assessed by that team on two occasions. They have reviewed the investigations that were carried out at The Alfred Hospital, I infer, and have assessed the plaintiff, as a suitable candidate for the type of surgery in which they specialise and excel. 6. It turns out that on careful review of the material which I was taken through by Mr Sexton that in fact, probably three separate but possibly related procedures are in contemplation. Depending on how the others go it may be that the Osseointegration will not proceed. As I read the material, that depends upon, perhaps most, the outcome of the second procedure. 7. I will just go back a little. The first procedure which has been in contemplation, it must be said, since 2016 is a procedure called targeted muscle reinnervation or TMR. It was referred to in the expert's report of a senior prosthesis, Mr Cameron Ward. It is a relatively new procedure but it does involve, as the name suggests, a surgical approach to improving the operation of injured nerves in the amputation stump which, as I understand it, enhances the operation of very sophisticated modern prosthetics, especially prosthetic hands which in this day and age have achieved a very high level of sophistication when the TMR procedure is successful. That perhaps is a separate procedure and is not necessarily a precursor to the Osseointegration. 8. As I have said, Mr Parker has suffered a very high-level amputation. The evidence I have read seems to suggest that it is just below the shoulder. I think the most recent report from Dr Doshi, a member of Professor Muderis's team, mentioned a stump of something of the order of 6.5 cm which is very short indeed. Part of the team at Macquarie Hospital's focus has been on, as a first step, undertaking a TMR but to be followed up by a procedure in relation to lengthening the stump by lengthening the humerus. I am working on an assumption, based upon my not full understanding of the medical evidence at this stage, that that may enhance the prospect of Osseointegration. 9. All of these issues have been developing over the last few months. It may perhaps have been better if, when it became clear that the plaintiff was acting on this advice and that these much more sophisticated procedures were more than a possibility if the bullet had been bitten and the parties had approached the Court to adjourn the case earlier on, given that the Court is very sensitive about wasted Court time, quite apart from wasted legal costs when cases are adjourned especially late in the piece. 10. But the question in relation to any adjournment application must be the interest of justice and the interest of the administration of justice and not merely factors which are referred to in relation to judicial efficiency as arising out of, in particular, the decision of the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. 11. I should say that at the outset of the application, Mr Sexton very fairly indicated that the defendant had eschewed the option of attempting simply to shut the plaintiff out by reason of the late service of this new material, an option which defendants often legitimately invoke. After all, a case has been case managed, parties have been given an opportunity to put the best case forward and late amendments and late amplifications of the case are strongly discouraged by the courts these days. 12. However, this is a young man with a very severe injury, as I have said more than once, and in an area where medical science is making advances at a significant rate it seems to me that the interests of justice would not be well served by shutting him out from running that case. It seems to me that although the TMR issue has been something of a sleeper for a number of years, since the plaintiff was referred for assessment in August last year, the plaintiff's solicitors have made strenuous efforts to attempt to put together the necessary evidence to run that case and I have to say on the material before me they have been somewhat frustrated by the non-cooperative attitude taken by the team who were assessing him previously. It does appear to me that although reports have been obtained at short notice from Professor Al Muderis's team, we have not heard from the Professor himself and as I remarked during argument, the reports are not expansive in explaining what is involved, providing a real prognosis and explaining why these new procedures are reasonably necessary as a result of the putative negligence of the defendant. No doubt they are matters which may be addressed in the meantime. However, speaking of the interests of justice, it is obviously undesirable and, indeed, unfair to require the defendant to meet this new material on the fly. 13. When the matter was first before me, Ms Martin candidly acknowledged the plaintiff had apparently seen the two leading experts in the country in this new field, and there would be little the defendant could do to explore the issue to test the plaintiff's case. But that has changed somewhat in as much as Ms Martin has now identified an expert in Sydney who is also involved in this area. I do not think it is yet known whether he is prepared to give evidence but it is not just the surgeon who has to be enlisted, there are specialist occupational therapists involved in this area that deal with the amputees in the context of this highly sophisticated, modern prosthetics that are now available. 14. The interests of justice are rarely measured in terms of money but as Mr Sexton has illustrated, these procedures are cutting edge and on the plaintiff's case, as finally particularised, involve large sums of money. Now, in any amputation case, and one hates to categorise things that way, the most expensive head of damage is likely to relate to the cost of prosthetics but the new case that the plaintiff has now particularised comes up to a total cost in terms of prosthetics, aids, surgery and assistance, in the order of $2.7 million. Of that, I think Ms Martin has calculated in her affidavit that the new component is well in excess of $1 million. It is also the case that there are significant issues about (all going well, if the plaintiff has each of these modalities of treatment, and therefore gets access to the very best in prosthetics) what that means in respect of other heads of damage where significant claims were made. Presumably, the justification for these procedures is great improvement in functionality, and if the plaintiff achieves the great improvement in functionality hoped for by the doctors, then other heads of damage claimed, including economic loss, the cost of care and assistance, and the cost of other curative apparatus apart from prosthetics, ought to go down, at least logic would suggest so. 15. For all of these reasons these issues are very important issues for both parties, and although the Court is anxious to preserve hearing dates, especially in these extraordinary times when there are great difficulties in proceeding remotely, and there is a risk of an ever-increasing backlog of cases once the present crisis eases, it seems to me that the interests of justice do require, from the point of view of both the defendant and the plaintiff, that I accede to the application for an adjournment. 16. I should add that Mr Hooke sensibly and fairly does not contest at all that the defendant is making a fair point, and that an adjournment is really inevitable. However, it is not a matter for the parties, it is a matter for me, but I agree with the submissions that have been put to me that the interests of the administration of justice, as well as the interests of justice, require me to adjourn these proceedings.