Avsar v Westland Healthcare Limited
[2006] WADC 85
•9 JUNE 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: AVSAR -v- WESTLAND HEALTHCARE LIMITED [2006] WADC 85
CORAM: SLEIGHT DCJ
HEARD: 31 MARCH 2006
DELIVERED : 9 JUNE 2006
FILE NO/S: CIV 3175 of 1997
BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
WESTLAND HEALTHCARE LIMITED
Defendant
Catchwords:
Application to add plaintiffs - Application to amend statement of claim to include claims by additional plaintiffs - Application to join additional defendants - Application to strike out statement of claim
Legislation:
Nil
Result:
Plaintiff's applications dismissed
Liberty to further amend statement of claim subject to conditions
Representation:
Counsel:
Plaintiff: In person
Defendant: Ms F C E Davis
Solicitors:
Plaintiff: Not applicable
Defendant: Srdarov Richards Burton
Case(s) referred to in judgment(s):
Avsar v Westland Healthcare Limited [2005] WADC 74
Morgan v Banning (1999) 20 WAR 474
Pointon v Walkley [1951] SASR 121
Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Case(s) also cited:
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61424
Ashmore v British Coal Corporation [1990] 2 QB 338
Attorney-General (Duchy of Lancaster) v London & North Western Railway Co [1892] 3 Ch 274
Avsar v Westland Healthcare Limited [2002] WADC 10
Avsar v Westland Healthcare Limited [2004] WADC 141
Blake v Midland Railway Co (1852) 18 QB 93
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Davy v Garrett (1878) 7 Ch D 473
De Sales v Ingrilli (2002) 193 ALR 130
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1996) 14 WAR 293
Haines v Australian Broadcasting Commission (1995) 43 NSWLR 404
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Knowles v Roberts (1888) 38 Ch D 263
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263
Petropoulos v Commissioner for Railways (No 1) [1963] NSWR 286
Public Trustee v Zoanetti (1945) 70 CLR 266
Rassam v Budge [1893] 1 QB 571
Remmington v Scoles [1897] 2 Ch 1
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors [1971] 1 NSWLR 472
Young v Holloway [1895] P 87
SLEIGHT DCJ: This matter came before me with various applications being the following:
1.An application by the plaintiff dated 6 October 2005 for orders to join the deceased's four grandchildren as plaintiffs and leave for an extension of time to file a substituted statement of claim pursuant to an order by his Honour Judge Chaney on 20 September 2005.
2.An application by the defendant dated 24 October 2005 to strike out the plaintiff's substituted statement of claim dated 15 October 2005.
3.An amended chamber summons, dated 7 November 2005 lodged by the plaintiff seeking, in addition to the orders of the application dated 6 October 2005, an order for appointment of a next friend for the proposed third plaintiff (Sean Avsar) and sixth plaintiff (Yusuf Avsar).
4.An application by the plaintiff dated 7 March 2006 to join a second and third defendant as parties to the proceedings.
History of the matter
This matter has a long history. The plaintiff in this matter is the daughter of the late Antoinette Maria Cowan ("the deceased") who died on 16 February 1996.
The plaintiff commenced an action in the Supreme Court of Western Australia on 30 January 1997. The writ contained a 55 page statement of claim.
In basic terms the plaintiff's claim arises from the alleged negligence of the defendant in administering an incorrect dosage of insulin to the deceased while the deceased was a patient in the Applecross Nursing Home managed and operated by the defendant. The alleged incorrect dosage was said to be administered on 21 September 1995.
On 20 March 1997, Registrar Johnston in the Supreme Court struck out the statement of claim and gave the plaintiff leave to file a further statement of claim.
On 6 May 1997 by consent, an order was made that the action be transferred to the District Court (by this stage the plaintiff was represented by solicitors Taylor Smart).
Since then the plaintiff has sought to file a number of substituted statements of claim dated as follows:
•3 November 1997
•21 March 1999
•1 July 1999
•Undated (but served 18 May 2004)
•17 June 2004
•15 October 2005
The plaintiff was represented by solicitors during two periods since the commencement of the action:
•Taylor Smart, 14 April 1997 to 14 August 1998
•Stephen Browne, 7 June 2000 to 24 January 2001
Capacity of the plaintiff
The action when it was commenced in the Supreme Court on 30 January 1997 was commenced in the name of the plaintiff in her personal capacity.
The claim purported to be a broad based claim making claims on behalf of the estate of the deceased, the plaintiff herself and other family members.
One of the difficulties the plaintiff had was at that time she did not have a Grant of Probate or Letters of Administration and therefore was not able to make a claim on behalf of the estate. Nor did she have a capacity to make a claim on behalf of her children, other than a claim under the Fatal Accidents Act 1959.
The misconception by the plaintiff of her capacity to make a claim on behalf of other persons created problems, which permeate through to the present applications.
As a result of the rejection by this Court of various substituted statements of claim lodged by the plaintiff, his Honour Judge Chaney, in a decision handed down on 21 April 2005 (Avsar v Westland Healthcare Limited [2005] WADC 74) treated the statement of claim dated 1 July 1999 as the only validly filed statement of claim before the court.
The claim in the statement of claim dated 1 July 1999 sought damages against the defendant under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941.
The claim under the Law Reform (Miscellaneous Provisions) Act 1941 had been previously challenged by the defendant on the grounds that the plaintiff did not have capacity to make such a claim. This argument was accepted by Registrar Kingsley in a decision on 24 August 2004. However, on 28 November 2003, the plaintiff had obtained a limited Grant from the Supreme Court to conduct these proceedings on behalf of the estate. His Honour Judge Chaney in his decision of 21 April 2005 (supra) allowed this Grant to have a retrospective operation and for the plaintiff to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1941 on behalf of the estate, backdated to the date of the issue of the writ.
There had been no challenge by the defendant of the capacity of the plaintiff to bring an action under the Fatal Accidents Act 1959 as by virtue of s 9(1) of that Act a non-executor or non‑administrator may bring an action if that person is one of the persons on whose behalf the benefit of an action may be brought under the legislation. The plaintiff as a child of the deceased clearly had capacity under the Fatal Accidents Act 1941 to make such a claim.
The plaintiff also applied before his Honour Judge Chaney for an order that her capacity as plaintiff be changed to that as the Administrator of the estate of the deceased instead of the plaintiff in her personal capacity. His Honour made such an order.
The plaintiff may not have realised the full implications of such an order, but in her capacity as Administrator of the estate, she can only make a claim under the Fatal Accidents Act 1959 and under the Law Reform (Miscellaneous Provisions) Act 1941. This means that in her current capacity, as created by the order of his Honour Judge Chaney, she cannot bring a claim on her own behalf for damages for personal injury (nor on behalf of any other person) and she is limited to making a claim under the Fatal Accidents Act1959 and the Law Reform (Miscellaneous Provisions) Act 1941.
The other relevant part of the history of these proceedings is that the statement of claim dated 1 July 1999 included a claim in par 19(2)(iii) as follows:
"The plaintiff and the eldest son Sean claims damages for post traumatic stress disorders, physical and mental injury resulting from the suffering and death of the deceased pursuant to the Acts Amendment (Actions for Damages) Act Pt III – as amended (sic)."
(The full pleadings of pars 19 and 20 are set out in the decision of his Honour Judge Chaney (supra)).
This part of the claim was described by his Honour Judge Chaney as being unsustainable. His Honour assumed that reference to the "Acts Amendment (Actions for Damages) Act Pt III – Supreme Court Act 1935 as amended" was a reference to the Acts Amendment (Actions for Damages) Act being No 50 of 1986 which amended both the Law Reform (Miscellaneous Provisions) Act 1941 and the Supreme Court Act. As his Honour observed, the legislation referred to does not provide any foundation for recovery of the damages claimed (p 19 of the decision (supra)).
His Honour Judge Chaney struck out pars 19(2) and 20 of the statement of claim but gave leave to the plaintiff to file a substituted statement of claim. The purpose of the leave to file a substituted statement of claim was to enable the plaintiff to plead matters which were recoverable under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941.
The plaintiff has now filed a further substituted statement of claim dated 15 October 2005 (purportedly pursuant to Judge Chaney's orders).
This purported substituted statement of claim goes far beyond simply pleading damages properly claimable under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941, but seeks to add claims on behalf of the plaintiff (in her personal capacity) and for her four children being the following:
Sean Avsar (born 5 March 1974) and now aged 32 years.
Selim Avsar (born 28 December 1978) and now aged 27 years.
Yasmin Avsar (born 6 September 1982)and now aged 23 years.
Yusuf Avsar (born 22 September 1993) and now aged 12 years.
The additional claims which the plaintiff seeks to be made by adding her four children to the action may be described as coming within two categories –
1.Damages for loss of financial support from the deceased.
2.Damages for personal injury in the form of mental injury arising from the deceased's condition immediately before her death and her subsequent death.
The claims under the first category are already covered by the claims by the plaintiff under the Fatal Accidents Act 1959 which include claims for loss of financial dependency on behalf of those persons who qualify under the Fatal Accidents Act 1959, which includes the grandchildren of the deceased.
The claims under the second category raise different issues. The plaintiff's oral submission before me on the hearing of these applications was that the additional plaintiffs could be joined under s 9A of the Fatal Accidents Act 1959, and once they were joined as plaintiffs their claims could be expanded beyond the Fatal Accidents Act 1959 to include claims for personal injuries. This submission is not valid. Section 9A of the Fatal Accidents Act 1959 does not provide for the adding of plaintiffs but only the adding of persons on whose behalf a claim can be made by the existing plaintiff. Further, it gives no right to pursue claims beyond the Fatal Accidents Act 1959.
The plaintiff's application to add additional plaintiffs can only be made pursuant to O 18 r 6(2) of the Supreme Court Rules which provides as follows:
"At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –
(a)Order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)Order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated on, be added as a party,
But no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised."
Statute of limitations
The second category of claims which the plaintiff seeks to make by adding her four children as plaintiffs, are claims for damages in tort and this raises issues of whether the claims are statute barred.
Although the Limitation Act 1935 was repealed as a result of the Limitation Legislation Amendment and Repeal Act 2005, s 4(2) of the amending legislation provides that the old Act continues to apply if the cause of action accrued before the commencement date of the Limitation Act 2005 (which was 15 November 2005).
Each of the purported causes of action on behalf of the children of the plaintiff for personal injury purports to be on the basis of mental trauma suffered immediately prior to and on the deceased's death on 16 February 1996. By a cause of action, I mean a factual situation which will entitle a person to approach the court for relief (see Morgan v Banning (1999) 20 WAR 474 at 484).
Pursuant to s 38(1)(c)(vi) of the Limitation Act 1935 the limitation period for a tortious claim is six years from the date that the action accrued.
I will deal with the claim of each proposed plaintiff separately.
Claim by Sean Avsar
At the time of the death of the deceased, the proposed plaintiff Sean Avsar was 22 years of age, and therefore prima facie any claim by Sean Avsar is out of time. Although the plaintiff in her original statement of claim and subsequent filed substitute statements of claim has sought to make a claim on behalf of Sean Avsar, no valid claim has been lodged to date. An application to join Sean Avsar pursuant to O 18 r 6(2) of the Supreme Court Rules cannot generally be used to back-date a claim to the date of the issue of the writ so as to defeat the provisions of the limitation legislation (see Morgan v Banning (supra), Wheeler J at p 486).
However, the plaintiff argues that Mr Sean Avsar is "insane" and by operation of s 40 of the Limitation Act 1935 the limitation period has not commenced to run.
Section 40 of the Limitation Act provides as follows:
"If any person entitled to any such action as is referred to in s 38(1) was at the time of the cause of action accrued within the age of 18 years or insane, then such person may commence the same within such time as is before limited after being of full age or sane as if that was the time at which the cause of action accrued".
"Insane" is not defined in the Limitation Act 1935. The South Australian Limitation Act, which instead of using the word "insane" uses the expression "if of unsound mind" in a equivalent provision, was considered in the decision of Pointon v Walkley [1951] SASR 121 and Mayo J at p 125 stated as follows:
"The phrase 'unsound mind' in the subsection is sufficiently comprehensive to include (inter alia) any person who by defect of reasoning powers is unable to understand the matters involved, and in his mind necessary to decide whether he will or will not institute litigation, and who is unable to give directions accordingly."
This is somewhat similar to the definition of "a person under a disability" in O 70 r (1)(c) of the Supreme Court Rules.
At common law a person is deemed insane and not liable for a criminal offence if he is labouring under a defect of reason owing to disease of the mind so as not to know the nature and quality of his acts, or, if he knew this, so as not to know that what he was doing was wrong (see "Halsbury's Laws of England" 4th ed, Vol 11(1) [31]).
In my view the word "insane" in s 40 of the Limitation Act 1935 should have a similar meaning, (that is, an insane person is a person who by reason of disease of the mind is not capable of knowing the nature and quality of the proceedings).
The plaintiff has filed an affidavit sworn 7 November 2005 which has attached to it medical reports from Dr Steve Baily dated 22 December 2004 and Dr Mark Rooney dated 22 December 2004.
The report of Dr Rooney states that Mr Sean Avsar suffers from chronic paranoid schizophrenia with admissions to hospital in 1996, 1998 and 1999. There is also reference to previous amphetamine and LSD abuse and current marijuana use. The diagnosis of chronic paranoid schizophrenia is confirmed by Dr Baily.
The reports detail various admissions to hospital and also a medication regime implemented as a part of Mr Avsar's treatment. It is not clear whether, whilst on medication, Mr Avsar would be classified as insane. However, in my view it is arguable that he has been insane from the time the supposed cause of action arose.
A limitation period may not be relied upon to demonstrate that the plaintiff has no reasonable cause of action, but evidence of a limitation period may be introduced, and in a clear case a claim may be struck out as frivolous or vexatious, or as an abuse of process (see Cullinane v West Australian Newspapers Ltd [1988] WAR 212).
Given that Sean Avsar may have grounds under s 40 of the Limitations Act 1935 for defeating the limitation period, I do not believe that his claim should be disallowed simply on the basis that it is over six years since the death of the deceased.
Order 70 of the Supreme Court Rules
In my view the plaintiff's application to join Mr Sean Avsar requires consideration of the proposed claim by Mr Sean Avsar and the operation of O 70.
The proposed claim of Mr Sean Avsar is set out in par 34 of the substituted statement of claim filed 15 October 2005. It pleads as follows:
"CAUSATION – Proximate Cause :
(a)The Plaintiff SEAN AVSAR was born on 5 March 1974 and is the son of the Plaintiff Jennifer Patricia Avsar, and first lawful grandson of the deceased, the said Antoinette Maria Cowan; the Plaintiff's mother acts in her capacity as Guardian for the Plaintiff in these proceedings.
The Deceased raised the Plaintiff from a baby when his mother worked full time in a shipping company as a shipping officer in Fremantle, and the two were very attached from his birth.
And this close bond shared between the Deceased and the Plaintiff was clearly revealed, given that the Plaintiff is the only grandchild who is named as the beneficiary of the Deceased Will dated 8 October 1987.
(b)NATURE OF INJURIES:
(i)The Plaintiff claims personal injury damages for mental and nervous shock.
(ii)The alleged wrongful conduct of the defendant caused or materially contributed to the Plaintiff's injuries.
(iii)As a result of the alleged negligence resulting in his grandmother's death, the plaintiff sustained injury required medical treatment, has permanent disability, has endured pain and suffering, inconvenience, loss of enjoyment of life, has incurred and is continuing to incur medical expenses, has sustained loss of earnings and loss of earning capacity, and has incurred other special damages.
(iv)Prior to injury, the plaintiff was an excellent sportsman and excelled in horse riding, and played football for his team in Mildura. The Plaintiff was on the threshold of also becoming a very successful businessman in the family's Meat Export Trade, with potential to earn very large sums of money offshore, mainly in Malaysia and the Middle East, that was to also benefit not only the Plaintiff, but his family as well.
(v)Since his injury, the Plaintiff has multiple problems with his mental and physical health and presently suffers permanent disability. (Particulars of which will be available prior to trial).
(vi)The Plaintiff resided in the family home in Adelaide at all material times and lived his daily life in a 'hospital like environment' in the same home with the Deceased. He appeared constantly frightened, and feared for the Deceased life and when he was unable to mentally cope with the impact of events in the home, the Plaintiff resorted to substance abuse to try and relieve his anxieties and stress. The traumatic events had an impact on his mind and nervous system.
(vii)The Plaintiff's injuries were caused as on 19 October 1995 and thereafter, when he personally witnessed, and experienced first hand the day to day events in relation to the daily nursing care of his grandmother whilst he was resident in the Plaintiff's family's home in Adelaide.
(viii)A breach of duty of care was owed to the Deceased and/or to the Guardian responsible for the Deceased by the defendant, and its alleged wrongful conduct was the proximate cause or that which materially contributed to the Plaintiff's injury as a result thereof.
(ix)On 11 October 1995, when the Plaintiff's mother travelled to Perth to visit the Plaintiff's grandmother in Fremantle Hospital, the Plaintiff became aware that he could not speak to his grandmother, or go on his usual long walks with her, and that it was not known what had caused the deceased to become so severely incapacitated.
(The Plaintiff and family suspected the Deceased husband and reported the matter to the Criminal Investigation Branch, after the Deceased death on 10 July 1996. The CIB duly advised the family that the Deceased had in fact suffered a fatal accident in the Applecross Nursing Home on 28 September 1995).
(x)On 19 October 1995, the Plaintiff's mother and the Deceased arrived from Perth to the Plaintiff's family home in Adelaide. The Plaintiff suffered chronic shock and nervous shock, when he became aware of his grandmother's serious medical condition. On this day the 19 October 1995 the Plaintiff was picked up by ambulance and admitted to the local hospital in Gawler, unconscious and unresponsive as a result of self abuse.
(xi)From this day onwards, the Plaintiff's condition continued to worsen thereafter and during the period the Plaintiff resided with the family and the deceased who also was in residence for approximately five and a half months, after the fatal accident and until her death on 16 February 1996.
(xii)Following the Deceased death on 16 February 1996, the Plaintiff's mental disorders continued even with ongoing treatment, and his main problems suffered arose when he experienced emotional numbing, depression, nightmares and hallucinating, he distanced from others and his obvious reduced interest in daily life and activities. Ten years later, the Plaintiff continues to be suffering from serious depression, psychiatric and psychotic condition and chronic schzerphrenia (sic).
(xiii)To date there has been no improvement, although with the assistance and constant vigilance of his wife, regular medication, monthly hospital visits, and fortnightly injections from his home nurse, his medical team have managed to stabilise the Plaintiff sufficiently enough to cope with daily life.
(xiv)Clearly his condition has seriously affected his lifestyle since his grandmother's fatal accident allegedly resulting in her death, and it is likely to continue to be the case for the foreseeable future, and as his doctor has advised for the remainder of his life he is likely to remain on medications for some time as he requires constant psychiatric assistance and medications will arise from his treatment. His injury had a catastrophic effect on the Plaintiff's life, family, past and future employment and his Meat Export business.
The plaintiff appears to have withdrawn into a world of his own, suffered prolonged periods of depression, and has never spoken to anyone about the Deceased since her death.
(Particulars of which will be available prior to Trial).
(c)Plaintiff's Total Disability:
(i)The Plaintiff is unable to perform the important duties of his regular occupation;
-and-
(ii)The Plaintiff is not engaged in any gainful occupation;
-and-
(iii)The Plaintiff is under regular and personal care of a Medical Practitioner, the Fremantle Hospital and Home Nurse.
His psychiatric disorders prevents him from carrying out all the normal duties of his usual occupation in his previous export business. His medical history will support the fact that the Plaintiff's medical condition is unlikely to improve, but which is being stabilised with medication and ongoing treatment. He is totally and permanently disabled for work, was initially on Sickness Benefit in 1997 but is now currently is (sic) in receipt of a Disability Pension from Centrelink, and is dependent on others for personal self care and the management of every aspect of his daily life.
He does not have the mental capacity to manage large sums of money that may be granted in compensation.
(d)Nature of the Plaintiff's Claim:
SCHEDULE OF CLAIMS / DAMAGES
Loss of Past Partial Dependency on Deceased Income for Support
(i)As at the date of her death on 16 February 1996, the Deceased was 67 Years of age;
(ii)as at the date of her death, the Deceased received partial superannuation contributions and pension in the sum of $625 per fortnight;
(iii)as at the date of her death, the Deceased was entitled to receive her half share joint superannuation income of approx $2,000 per fortnight which income her husband unlawfully denied her, but had she lived and survived her late husband, there would have been an acceleration of the deceased's income capacity given that;
(iv)as at the date of her death, the Deceased had Property Settlement proceedings filed in the Family Court of Western Australia PT 1162 of 1996 seeking Final Orders for her equal share of real estate property and superannuation assets of the married couple.
And further;
Had the Deceased survived her late husband, she was entitled to receive 67% of the joint superannuation income upon his death on 9 March 2005 thereafter substantially increasing her income capacity;
(v)as at the date of her death, the Deceased contributed to the Plaintiff and family's household expenses and made financial gifts to the Plaintiff for his benefit and the benefit of his family members; shared all financial obligations, not only in relation to the house as occupied, but also day to day living expenses, and as such the Plaintiff and his family members were partially dependent on the Deceased for income support, he being deprived of income after the family were 'grounded' so to speak, and were unable to satisfactorily operate the family meat processing works offshore, or attend to their cold stores in Malaysia.
(vi)as at the date of death the relationship between the plaintiffs and the Deceased was of a permanent nature, further cemented with the fact that the plaintiff's mother was the legally appointed Guardian/Administrator of the Deceased and from whose income the Plaintiff's mother was entitled to receive contributions towards the maintenance and upkeep of the plaintiff and whilst the Deceased was being cared for by the family in the home:
(a)The deceased financial contributions of $400 per fortnight towards the Plaintiff's mother's household and family's day to day expenses, being $10,400 per annum;
(b)The regular fortnightly rental contribution of $200 to offset expenses in relation to the Plaintiff's mother's home adaptation in Adelaide where the Deceased was resident with the Plaintiff and his family members in the same house, being $5,200 per annum;
(c)Loss of financial benefits/gifts of $5,000 per annum are benefits received before the fatal accident on 28 September 1995 in the Nursing Home from the Deceased to the Plaintiff and his family members mainly for air travel, major household purchases such as new carpets for the family home, computer equipment, school expenses and holidays paid for the children to and from Adelaide to Perth to visit the deceased, and overseas expenses. Horses and saddles (sporting equipment), clothing, regular supplies of expensive fish, annual Birthday and Christmas presents;
(vii)as at the date of death of the Deceased the granting of the operation of the Deceased Commonwealth Bank Accounts to the Plaintiff's mother, who had daily access to the Deceased income.
(viii)The financial arrangements was such that the Deceased contributed to the expenses and upkeep of the Plaintiff and his family. A figure of $20,600 per annum net is appropriate as a basis for calculation of partial past and future partial loss of dependency the Plaintiff and family received from the Deceased as at the date of death, to be assessed;
(e)A Percentage of Total Loss of Past Partial Financial Support:
To be assessed
(f)Percentage of Loss of Future Partial Financial Support
To be assessed
(g)Interest of Loss of Partial Past and Future Dependency:
To be assessed
(h)Loss of benefit of grandmother's services to the plaintiff at $1000 per annum, or say $20 per week from the material date; or as the Court deems fit.
(i)Loss of a value of grandparental guidance at $1000 per annum, or say $20 per week from the material date; or as the Court deems fit.
(j)Plaintiff's Past Medical/Ambulance and Hospital Expenses for personal injuries, chronic shock, nervous shock, depression and psychiatric damage caused to the Plaintiff –
(Particulars of which will be available prior to Trial).
(k)Future Medical Expenses
(l)General Damages at Common Law for the Plaintiff's personal injuries being for chronic shock, nervous shock, depression and psychiatric damage to be assessed from the material date:
(m)Loss of Enjoyment of Life/Loss of Amenities: To be assessed
(n)Pain & Suffering to be assessed
(o)Future Loss of Earning Capacity to be assessed
(p)Future Loss of Earning Capacity to be assessed
(Particulars of which will be provided prior to Trial)'
Plus Interest on General Damages
(q)Pecuniary Loss – to be assessed
(Particulars of which will be provided prior to Trial).
(r)Loss of Past Economic Loss and Future Expected Income
By reason of the Plaintiff's son's injuries and disabilities hereinbefore pleaded he has sustained a permanent reduction in his perimeter of possible employment and faces the real possibility of permanent unemployment occurring during the balance of his working life.
Prior to the material date, the Plaintiff's previous occupation was in the Meat Export business, and he undertook duties as a Works Co ordinator (sic) under guidance of his father who set up the business after years of experience in the meat export abbatoirs (sic) and processing of pet foods in Australia.
(Particulars of which will be available prior to Trial)
(s)Past Gratuitous Services rendered to Plaintiff
(i)The plaintiff requires 24/7 days round the clock constant supervision.
(ii)The Plaintiff was diagnosed to be suffering chronic shock and nervous shock, depression and later to be admitted to the hospital on several occasions in the past ten years when he was diagnosed to be suffering from serious psychiatric disorders.
(iii)The Plaintiff's parents were recognised as the Guardian of the Plaintiff after the Guardianship & Administration Board revoked the Administration Order of the Public Trustee on 30 March 2000 in Adelaide, in the State of South Australia.
(iv)The Plaintiff's parents hold joint Enduring Power of Attorney and have acted in the best interest of the Plaintiff since 27 May 1997 onwards;
(v)As such the Plaintiff's carer has officially been the Plaintiff's parents, from the material date until the family arranged his marriage to his current wife, and subsequently got married in July 2002.
(vi)The Plaintiff is currently being cared for on a full time basis by his wife, and is currently only partially being cared for by his mother. She receives no income nor does she receive any carer's allowance or carer's pension, and is totally dependent on the single household income being the Plaintiff's Disability Support Pension.
(vii)The Plaintiff claims past gratuitous services from the material date to the date of settlement, save for the periods the Plaintiff was homeless, in hospital and institutional care in the past ten years.
(Particulars of which will be provided prior to Trial).
(t)Future Gratuitous Services:
The Plaintiff's mother played a prominent part in his rehabilitation and bring some stability in his life. In spite of initial advice from his hospital doctor that the Plaintiff be moved to a community home where he could be cared for in a group situation in shared accommodation with other similar disabled persons for the rest of his life, the Plaintiff's mother insisted that he should be cared for at home and be provided 24 hour care on a one-to-one basis by his parents and wife.
As a result the Plaintiff was removed from 'Milpara' institutional care and since then the Plaintiff showed some improvement when a prolonged treatment program began at home with his Fremantle Hospital home nurse who currently visits him every fortnight.
(u)Past Miscellaneous costs. Travel relocation Adel/Perth/Transport, Accommodation, and out of pocket expenses actually and reasonably incurred by the Plaintiff, or alternatively by the Plaintiff's mother who was responsible for the maintenance of the Plaintiff.
(v)Future Miscellaneous Expenses
(w)Home Maintenance
(x)Administrator's Costs/Incidental/Disbursements/Legal Costs inclusive plus interest (Particulars of which will be available prior to Trial)
(y)Special Damages from the date of tort 28 September 1995 to the date of trail (sic) which may be precisely quantified.
(z)Future Holiday Expenses
Plus:
Interest on past losses
Court Costs plus interest
AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT:
(i)interest thereon at the below mentioned rates or such other rates as this Honourable Court shall think fit pursuant to the provisions of section 32 of the Supreme Court Act 1935 and its Amendment;".
In relation to Mr Sean Avsar's purported claim for damages for mental injury, it is not sufficient simply to plead a mental injury to be entitled to recover damages. As emphasised in the judgment of McHugh J in Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 at 348 the claimant must establish a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of duty.
In relation to the issue of whether the defendant owed a duty of care to the proposed plaintiff, Sean Avsar, the decision of Tame v New South Wales (supra) suggests that there must be something in the relationship between the defendant and the claimant, Sean Avsar, such that it would make it reasonable to require the defendant to have a contemplation of possible injury of the kind that is alleged to have been suffered by Sean Avsar (see Gleeson CJ at [18], Gauldron J at [52], McHugh J at [107]).
Although the position of Mr Sean Avsar as a grandchild of the deceased might give rise to an arguable point that the defendant ought to have contemplated that if it caused the death of the deceased through its negligence that relatives such as Mr Sean Avsar as a grandchild might suffer a psychiatric illness, I believe that such a claim at face value is somewhat tenuous. There is nothing pleaded or in the affidavit material suggesting something of the nature of the special relationship which existed between the plaintiff and the defendant in Annetts case (see supra).
Further, in relation to the issue of causation, there is nothing in the medical reports lodged in support of the application to join Sean Avsar indicating that his mental condition is in any way linked to the condition of the deceased immediately before her death or to her death.
Under O 70 r 3 of the Supreme Court Rules a next friend of a person under a disability must act by a solicitor. Further, under O 70 r 3(8) an affidavit is required from a solicitor stating his knowledge or belief that the plaintiff is under a disability and that the next friend has no interest in the cause or matter in question that is in conflict with the person under disability.
The appointment of a solicitor for a person under disability operates as an important safeguard. It ensures that the next friend and the plaintiff suffering from a disability are adequately advised as to the risks of litigation (in particular the risks of substantial awards of costs being made against an unsuccessful plaintiff). Further, the appointment of a solicitor ensures that the claim conducted on behalf of the person under a disability is conducted with the appropriate level of expertise. This is likely to ensure that vexatious or meritless claims are not pursued.
These principles are particularly important in the case of Mr Sean Avsar given the nature of his disability. As I have already indicated, there is nothing pleaded or stated in the affidavits which would establish a special relationship between the defendant and Mr Sean Avsar which would attract the sort of considerations which gave rise to a duty of care in Annetts' case. Further, there is no evidence presented in support of the application to support the contention that there is the necessary causal link between the alleged injury and the deceased's condition immediately before her death and her subsequent death.
In these circumstances, where O 70 r 3 has not been complied with, I am not prepared to allow Sean Avsar to be joined as a party to the proceedings.
Claim by Selim Avsar
At the time that the cause of action accrued, Mr Selim Avsar was aged 17 years of age, but turned 18 on 28 December 1996 and the six year limitation period expired on 28 December 2002.
The plaintiff in her oral submissions to me appeared to confuse her inability to represent the estate until she obtained Letters of Administration on 28 November 2003 as constituting a disability of the plaintiff Selim Avsar. This is incorrect. At all times from the 28 December 1996 until the present day, Mr Selim Avsar had legal capacity and therefore his failure to be joined as a party prior to the expiration of six years from his 18th birthday means that the claim is statute barred.
Although as commented earlier, a limitation period may not be relied upon to demonstrate that the plaintiff has no reasonable cause of action, evidence of a limitation period may give rise to an abuse of process. (Cullinane v West Australian Newspapers Ltd (supra)).
In my opinion this is a clear case where it would be an abuse of process to allow the joining of Selim Avsar as a plaintiff to pursue a claim outside the limitation period and some nine years after the action commenced.
Claim by Yasmin Avsar
The claim by Ms Yasmin Avsar raises slightly different considerations.
Her intended claim is set out in par 35 of the substituted statement of claim dated 15 October 2005. It provides as follows:
"CAUSATION: Proximate Cause
1.Slim (Selim) Avsar born on 28 December 1978 – aged 26 years
2.Yasmin Avsar born on 6 September 1982 – aged 23 years
3.Yusuf Avsar born on 22 September 1993 – aged 12 years
(a)The Plaintiff's are the children of the Plaintiff Jennifer Patricia Avsar and the lawful grandchildren of the Deceased Antoinette Maria Cowan who died on 16 February 1996 in the State of South Australia.
1.Slim Avsar works full time as a Computer Technician in Perth.
2.Yasmin Avsar is a full time University student studying to qualify to become a High School Teacher and studying information Technology in Fremantle.
3.Yusuf Avsar is studying at Year 6 level in Primary School in East Fremantle.
The Plaintiff proposes to claim on the basis that each child would have been partially dependent on the deceased until 21 years of age, as at the date of her death on 16 February 1996.
The Plaintiff's mother Jennifer Patricia Avsar made application to the District Court on 298 (sic) September 2005 for the children to be separately represented and for authority to act as Next Friend for the minor child.
(b)NATURE OF INJURIES:
As a result of the Deceased grandmother residing in the family property in Adelaide, and being cared for by the Plaintiff's mother, the Plaintiffs claim damages for personal injury and compensation for being inconvenienced, disruption to home and family, disruption to studies and sporting activities, pain and suffering, stress and trauma, loss of future expected income from family's business, long separation from either of the parents, trauma associated with their brother Sean Avsar's psychiatric disorders, and payment of funds loaned for expenses in pursuit of the defendant in the Courts in the State of Western Australia.
(c)Nature of the Plaintiff's ("the other three grandchildren") Claims:
SCHEDULE OF CLAIMS/DAMAGES
Loss of Past Partial Dependency on Deceased Income for Support
(i)As at the date of her death on 16 February 1996, the Deceased was 67 Years of age;
(ii)as at the date of her death, the Deceased received partial superannuation contributions and pension in the sum of $625 per fortnight;
(iii)as at the date of her death, the Deceased was entitled to receive her half share joint superannuation income of approx $2,000 per fortnight which income her husband unlawfully denied her, but had she lived and survived her busband (sic), there would have been an acceleration of the deceased's retirement income capacity given that;
(iv)as at the date of her death, the Deceased had Property Settlement proceedings filed in the Family Court of Western Australia PT 1162 of 1996 seeking Final Orders for her equal share of real estate property and superannuation assets of the married couple.
and further;
had the Deceased survived her late husband, she was entitled to receive 67% of the joint superannuation income of approx $2,000 per fortnight upon his death on 9 March 2005 thereafter substantially increasing her income capacity;
(v)as at the date of her death, the Deceased contributed to the Plaintiff and family's household expenses and made financial gifts to the Plaintiff for his benefit and the benefit of his family members; shared all financial obligations, not only in relation to the house as occupied, but also day to day living expenses, and as such the Plaintiff and his family members were partially dependent on the Deceased for income support, being deprived of income after the family were 'grounded' so to speak, and were unable to satisfactorily operate the family meat processing works offshore, or attend to their cold stores in Malaysia.
(vi)as at the date of death the relationship between the plaintiffs and the Deceased was of a permanent nature, further cemented with the fact that the plaintiff's mother was the legally appointed Guardian/Administrator of the Deceased and from whose income the Plaintiff's mother was entitled to receive contributions towards the maintenance and upkeep of the plaintiff and whilst the Deceased was being cared for by the family in the home:
(a)The deceased financial contributions of $400 per fortnight towards the Plaintiff's mother's household and family's day to day expenses, being $10,400 per annum;
(b)The regular fortnightly rental contribution of $200 to offset expenses in relation to the Plaintiff's mother's home adaptation in Adelaide where the Deceased was resident with the Plaintiff and his family members in the same house, being $5,200 per annum;
(c)Loss of financial benefits/gifts of $5,000 per annum are benefits received before the fatal accident on 28 September 1995 in the Nursing Home from the Deceased to the Plaintiff and his family members mainly for air travel, major household purchases such as new carpets for the family home, computer equipment, school expenses and holidays paid for the children to and from Adelaide to Perth to visit the deceased, and overseas expenses. Horses and saddles (sporting equipment), clothing, regular supplies of expensive fish, annual Birthday and Christmas presents;
(vii)as at the date of death of the Deceased the granting of the operation of the Deceased Commonwealth Bank Accounts to the Plaintiff's mother, who had daily access to the Deceased income.
(viii)The financial arrangements was such that the Deceased contributed to the expenses and upkeep of the Plaintiffs and the family. A figure of $20,000 per annum net is appropriate as a basis for calculation of partial past and future partial loss of dependency the Plaintiffs and family received from the Deceased as at the date of death, to the date of settlement to be assessed;
(d)A Percentage of Total Loss of Past Partial Financial Support : as stated in Paragraph 'c' for each of the three grandchildren: to be assessed
(e)A Percentage of Loss of Future Partial Financial Support: a stated in Paragraph 'c' for each of the three grandchildren: to be assessed
Interest on Loss of Past and Future Partial Financial Support: to be assessed
(f)Loss of benefit of grandmother's services to the plaintiff at $1000 per annum, or say $20 per week from the material date; for each of the three grandchildren: or as the Court deems fit.
(g)Loss of a value of grandparental guidance at $1000 per annum, or say $20 per week from the material date; for each of the three grandchildren: or as the Court deems fit.
(h)General Damages at Common Law for the Plaintiff's personal injuries being for chronic shock, stress and trauma, and ongoing inconvenience stress and trauma after the death of the Deceased, to be assessed from the material date 28 September 1995, to the date of settlement on the following:-
(i)Loss of Enjoyment of Life/Loss of Amenities
(j)Pain and Suffering
(k)Past Loss of Earning Capacity – Slim Avsar only from the material date 28 September 1995 to the date of death 16 February 1996
(Particulars of which will be provided prior to Trial)
(l)Plus Interest on General Damages
(m)Partial Loss of Future Expected Income
Prior to the material date, the Plaintiff's older brother operated a Meat Export business, and he undertook duties as a Works Co ordinator (sic) under guidance from his father who set up the business for him and his three siblings after having 25 years in the abbatoirs (sic) and processing of pet foods in Australia. The Plaintiff Slim Avsar also had an interest in the family's Meat Export business that his father had set up for the boys' future.
(Particulars of which will be available prior to Trial)
The Plaintiffs were at all material times resident in the family home whilst their mother was the official carer of their grandmother ("the Deceased") who was also resident at the Plaintiff's family home in Adelaide, and during the period the Plaintiff's mother brought the Deceased to Adelaide from Perth to reside and care for her at the Plaintiff's family home.
(n)Past Miscellaneous costs. and out of pocket expenses;
(o)Future Miscellaneous Expenses
(p)Payment plus Interest on expenses for Administrator's Costs/Incidental/Disbursements/Legal Costs inclusive.
(Particulars of which will be available prior to Trial)
(q)Special Damages: from the date of tort 28/9/1995 to date of trial which may be precisely quantified.
(r)Economic Loss - to be assessed
(s)Pecuniary Loss - to be assessed
Plus:
Interest on past losses
Court Costs plus Interest
AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT
(i)Interest thereon at the below mentioned rates or such other rates as this Honourable Court shall think fit pursuant to the provisions of section 32 of the Supreme Court Act 1935 and its Amendments;".
At the time of the death of the deceased, Ms Yasmin Avsar who was born on 6 September 1982 was aged 13 years of age. She turned 18 on 6 September 2000 and therefore under s 40 of the Limitation Act 1935 the statutory period has not expired.
However, the proposed claim by Yasmin Avsar as pleaded in par 35 has a number of difficulties. Firstly, the claim for personal injuries is for "chronic shock, stress and trauma and ongoing inconvenience stress and trauma after the death of the deceased".
No medical evidence has been lodged in support of the application and therefore there is no medical evidence that Yasmin Avsar suffers a recognised psychiatric illness.
In Tame v New South Wales, Annetts v Westralian Stations Pty Ltd, (supra Gleeson CJ [7]; Gauldron J [44], Gummow and Kirby JJ [193‑7] emphasised that to recover damages for mental injury the plaintiff must have suffered a recognised psychiatric illness. A person is not liable for distress, alarm, fear, anxiety, annoyance or despondency.
Further, there is no pleading of a duty of care, breach of duty of care and a causal link between the breach of duty of care and any claim for damages for personal injuries (see McHugh J in Tame v New South Wales (supra) [87]).
This action has been in progress now since 1997, and in my view it would be inappropriate to join an additional plaintiff unless there was evidence before the court by affidavit material and an appropriate draft pleading to establish that a proposed plaintiff's claim had merit.
In view of the deficiencies in the pleaded claim of Yasmin Avsar and the lack of evidence indicating any merit to the claim I am not prepared to allow her to be joined as a plaintiff.
Application to join Yusuf Avsar
The nature of the proposed claim by Yusuf Avsar is set out in par 35 of the substituted statement of claim dated 15 October 1995 as previously quoted in this decision. Master Yusuf Avsar remains an infant.
I repeat my observations concerning the claim by Yasmin Avsar that on the face of it, the pleading does not disclose a cause of action for personal injury.
Further, as is the case with Mr Sean Avsar, there is a further problem by virtue of a failure to comply with the provisions of O 70 concerning the appointment of a solicitor.
Again, I am of the view that the appointment of a solicitor for an infant plaintiff in these proceedings is an important safeguard which must be insisted upon. A Judge has a discretion to exclude the requirement of the appointment of a next friend for an infant under O 70 r 2(4) but this is not the sort of case where such a discretion should be exercised to remove the requirement of an appointment of a next friend in view of the age of the infant, and also the nature of the claim.
Accordingly, for the reasons above, I do not believe that the application seeking to join the infant Master Yusuf Avsar should be allowed and I dismiss this application.
Claim by the plaintiff Jennifer Patricia Avsar
The plaintiff now purports to make a claim on her own behalf as pleaded in par 32 of the purported substituted statement of claim dated 15 October 2005.
Paragraph 32 pleads as follows:
"CAUSATION : Proximate Cause
(a)The Plaintiff JENNIFER PATRICIA AVSAR is the daughter and only child of the deceased.
The Plaintiff was also the lawful appointed Guardian and Full Administrator of the Deceased who was declared a 'protected person' by virtue of the Guardianship and Administration Act 1990 in the State of South Australia.
The Plaintiff is the legally appointed Administrator of the Estate of the Deceased Antoinette Maria Cowan (Hayward) ad litem, and the personal respesentative (sic) of the Deceased Estate in Family Court (WA) property settlement proceedings.
(b)Nature of the Plaintiff's Claim: Jennifer Patricia Avsar
SCHEDULE OF CLAIMS/PERSONAL INJURIES DAMAGES
Loss of Partial Dependency
(i)As at the date of her death on 16 February 1996, the Deceased was 67 Years of age;
(ii)as at the date of her death, the Deceased received partial superannuation contributions and pension in the sum of approx $625 per fortnight;
(iii)as at the date of her death, the Deceased was entitled to receive her half share joint superannuation income of approx $2,000 per fortnight, which income her partner denied her, but had she lived there would have been an acceleration of the deceased's income capacity given that;
(iv)as at the date of her death, the Deceased had Property Settlement proceedings filed in the Family Court of Western Australia PT 1162 of 1996 seeking Final Orders for her equal share of real estate property and superannuation assets of the married couple.
and further;
had the Deceased survived her late husband who died on 9 March 2005, she was entitled to receive 67% of approx $2,000 per fortnight of the joint superannuation income upon his death on 9 March 2005 thereafter substantially increasing her income capacity;
(v)as at the date of her death, the Deceased contributed to the Plaintiff's household expenses and made financial gifts to the plaintiff for her benefit and the benefit of her four grandchildren; shared all financial obligations, not only in relation to the house as occupied, but also day to day living expenses, and as such the Plaintiff and the Plaintiff's four children were partially dependent on the Deceased income for income support.
(vi)as at the date of death the relationship between the plaintiffs and the Deceased was of a permanent nature, further cemented with the fact that the plaintiff was the legally appointed Guardian/Administrator of the Deceased and from whose income the Plaintiff was entitled to receive contributions towards the maintenance and upkeep of the plaintiff and the four children such as:
(a)The deceased financial contributions of $400 per fortnight towards the Plaintiff's household and family's day to day expenses, being $10,400 per annum;
(b)The regular fortnightly rental contribution of $200 to partly offset expenses in relation to the Plaintiff's home adaptation in Adelaide where the Deceased was resident with the Plaintiff and the Plaintiff's children in the same house, being $5,200 per annum;
(c)Loss of financial benefits/gifts of $5,000 per annum are benefits received before the fatal accident on 28 September 1995 in the Nursing Home from the Deceased to the Plaintiff and four grandchildren, mainly for air travel, major household purchases such as new carpets for the family home, computer equipment, school expenses and holidays paid for the children to and from Adelaide to Perth to visit the deceased, and overseas expenses. Horses and saddles (sporting equipment), clothing, regular supplies of expensive fish, annual Birthday and Christmas presents, jewellery for the Plaintiff and the Plaintiff's daughter.
(vii)as at the date of death of the Deceased the granting of the operation of the Deceased Commonwealth Bank Accounts to the Plaintiff, the Plaintiff had daily access to the Deceased income.
The financial arrangements was such that the Deceased contributed to the expenses and upkeep of the Plaintiff and the four children. A figure of $20,600 per annum net is appropriate as a basis for calculation of past partial and future partial loss of dependency the Plaintiff received from the Deceased as at the date of death.
Total Loss of Past Partial Financial Support for the past 10 years since the death of death (sic) of the Deceased : $206,000
(c)Loss of Future Partial Financial Support: To be assessed
(d)Interest on Loss of Past and Future Dependency: To be assessed
(e)Loss of benefit of mother's services to the household at $1000 per annum, or say $20 per week from the material date; or as the Court deems fit.
(f)Loss of a value of parental guidance at $1000 per annum, or say $20 per week from the material date;
(g)Funeral Expenses in South Australia & other associated costs at $8,000; Paid off by the Plaintiff whilst she was the appointed Guardian/Administrator for the Deceased.
(h)plus interest on Funeral Expenses accrued as at the date of death of the deceased on 16 February 1996 until the date of settlement;
(i)Plaintiff's Medical Expenses for personal injury. (Particulars of which will be available prior to Trial).
(j)General Damages at Common Law for the Plaintiff's personal injuries being, chronic shock and post traumatic stress related disorders from the material date:
(k)Loss of Enjoyment of Life
(l)Pain & Suffering
(m)Past loss of Earning Capacity
(n)Plus Interest on General Damages
(Particulars of which will be provided at Trial)
(o)Pecuniary Loss - Maximum sum allowable – To be assessed
(Particulars of which will be available prior to Trial)
(p)Loss of Expected income and Future Expected income
Loss of expected income as shipping and customs freight clerk/secretary duties from the material date 28/9/1995. $1,000 per week (or pursant (sic) to the shipping officer's award rates) $52,000 net per annum – 10 year loss of expected income : $520,000
(Particulars of which will be available prior to Trial).
-and-
Loss of Expected Future Income from family's Meat Export business offshore – The Plaintiff and husband being the AusMeat Licence holder. (To be assessed)
(q)Gratuitous Services Rendered to the Deceased – Total : $25,380
24/7 days round the clock – 2 Persons Nursing Care
The Plaintiff was the official Carer of the Deceased appointed by the Commonwealth Department of Human Services & Health pursuant to Section 58E of the National Health Act 1953.
The Plaintiff claims carer's costs for 17 weeks whilst the Deceased was resident at the Plaintiff's family home in Adelaide as follows:-
(i)19 October 1995 – 20 November 1995 : 4.5 Weeks (24/7 Full time care)
(ii)19 December 1995 – 5 January 1996 : 2.5 Weeks (24/7 Full time care)
(iii)16 January 1996 – 18 January 1996: .5 weeks (24/7 Full time care)
A total of 7.5 weeks at $15 per hour for two twelve hour shifts per day by two Persons (53 days) is a total of $19.080
The Deceased also required special feeding and nursing care which was provided three times each day at mainly the Gawler Health Service and Royal Adelaide Hospital as follows:
(i)20 November 1995 - 19 December 1995 ‑ 4 Weeks
(ii) 5 January 1995 - 16 January 1996 - 2 Weeks
(iii) 18 January 1995 ‑ 16 February 1996 - 4 Weeks
Three visits each day at meal times equals 9 hours per day
Reduced rate at $10 per hour for two persons = $90 per day including travel costs of 80 Kms per day to Royal Adelaide Hospital and accommodation for the whole family in caravan park close to the hospital: Total $6,300
Gratuitous Services – Nursing Care $19,080
$ 6,300
Total: $25,380
(r)Additional furniture and medical essentials & equipment, resettlement costs plus Cost of home and bath modifications to assist the Deceased: Total $20,175
(s)Cost of purchase of Vehicle with wheel chair ramp to transport the Deceased $6,655
(t)Interest on additional bank borrowings, loan, bank card etc: $2,320
(u)Miscellaneous costs, Travel relocation Adel/Perth/Transport, Accommodation and out of pocket expenses;
(v)Administrator's Costs/ Incidental/ Disbursements/ Legal Costs inclusive, but say $65,000 since date of death of deceased, plus interest – Particulars of which will be available prior to Trial.
(w)Special Damages Loss suffered from the date of the tort 28/9/1995 to date of trail (sic) which may be precisely quantified.
(x)Court Costs plus interest
AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT
(l)Interest thereon at the below mentioned rates or such other rates as this Honourable Court shall think fit pursuant to the provisions of section 32 of the Supreme Court Act 1935 and its Amendments;
Paragraph 32(j) seeks to claim general damages for "chronic shock and post traumatic stress related disorders from the material date". Again this pleading fails to establish the three elements of a claim based upon a breach of duty of care.
The plaintiff might be able to argue that the defendant had a duty of care to her as a child of the deceased (she is certainly one lineal link closer to the deceased than her children) but the pleading contained in par 32(j) does not establish a basis for a duty of care, nor a causal link to the alleged personal injuries.
Perhaps with amendment the defects might be rectified but with so many attempts at settling the plaintiff's statement of claim to date, the Court cannot continue to allow the plaintiff a never ending opportunity to amend to overcome such obvious defects. I will come back to this issue later in the decision.
Application to join new defendants
The plaintiff seeks to join two new defendants, being Helen Huband and Fiona Munro.
In an affidavit of the plaintiff sworn on 17 March 2006, the plaintiff describes these two proposed defendants as the Director of the Applecross Nursing Home and a registered nurse respectively, who were engaged by the Applecross Nursing Home.
No explanation was given as to why these two persons were not joined earlier. Further, prima facie any claim by the plaintiff against these two persons is statute barred. Further, the non-joining of the two proposed defendants does not appear to defeat the plaintiff's claim. The defendant can be liable for the negligence of these two persons named under the principles of vicarious liability. This is in fact pleaded in par 16 of the statement of claim dated 1 July 1999. Accordingly, I believe it would be an abuse of process to allow the joining of these two individual defendants at this stage of the proceedings, and accordingly, I dismiss this application.
Conclusion
In summary, I dismiss the plaintiff's application to join Sean Avsar, Sulim Avsar, Yasmin Avsar and Yusuf Avsar as plaintiffs. Further, I dismiss the plaintiff's application to join Helen Huband and Fiona Munro as defendants.
Further, I strike out the plaintiff's statement of claim dated 15 October 2005 as I believe that the pleading now contains excessive objectionable material. This takes us back to the pleading dated 1 July 1999 which remains the pleading presently before the Court except for pars 19(2) and 20 which were struck out by virtue of the order of his Honour Judge Chaney pursuant to his decision of 21 April 2005 (supra). I will allow the plaintiff a further opportunity to amend her statement of claim to correct the defects mentioned by his Honour Judge Chaney. This is to be done by pleading an amended par 19(2) and par 20 so as to particularise damages claimable under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941.
The amendments to be made must comply with O 21 r 9 of the Supreme Court Rules.
I understand that an unrepresented party to proceedings faces a difficult task in correctly pleading his or her case. The art of drafting pleadings requires both unique skills and a knowledge of the law. The plaintiff has been attempting to present a satisfactory statement of claim now for over nine years. I regret that the Court can no longer allow the plaintiff to continue to file inadequate pleadings. It is simply not fair to the defendant, and contrary to case management principles.
Accordingly, I propose to take drastic steps to ensure that a proper statement of claim is filed.
I will grant the plaintiff 28 days in which to file an amended statement of claim. The amendments are to be confined to the following:
(a)A claim for damages under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941;
(b)A claim for damages for personal injuries (in the form of a psychiatric illness) for the plaintiff only.
The amended pleading is to be settled and signed by a solicitor holding a current practice certificate. To facilitate this I will cause a letter to be issued from this Court to the Director of Legal Aid enclosing a copy of this decision and requesting that an assignment be granted to have the pleading so settled by a legal practitioner. There will be liberty to apply to bring the matter back before me if a grant of legal aid cannot be obtained.
Separate trial of the negligence issue
On the last occasion I raised the possibility of a trial on the issue of whether the death of the deceased occurred due to the negligence of the defendant (this would include a vicarious liability for servants and agents) as a separate and preliminary issue.
The plaintiff opposes a separate hearing of this issue and the defendant supports it.
The court has power to make such an order under O 32 r 4 of the Supreme Court Rules. A separate trial of an issue is only appropriate in clear and simple cases where a simple question can be isolated from other questions. It is often not appropriate to do so where there are overlapping credibility issues (ie, credibility issues on both liability and damages). Also it must be kept in mind that separating issues can lead to multiple appeals.
However, again the history of this matter requires that some drastic steps be taken.
If the separate issue is decided in favour of the plaintiff, then this increases the chances of a mediated settlement. Further, if the plaintiff is successful it may improve the chances of the plaintiff obtaining legal representation for the balance of the claim as a solicitor is more likely to be willing to take on the matter when the negligence of the defendant has been established. However, if the plaintiff is unsuccessful, then this defeats her claims regardless of the loss and damages suffered by her. A prerequisite to any claim by the plaintiff is the establishment of the fact that the death of the deceased occurred due to the negligence of the defendants or its servants and agents.
Accordingly, I conclude that in view of the long history of this matter it is desirable, out of fairness to the parties, to try this preliminary issue separately (see Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 18).
I will hear the parties as to the final terms of the orders and the costs to be awarded on the various applications.
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