Connors v Nominal Defendant (No 2)

[2020] NSWDC 436

District Court

New South Wales

Medium Neutral Citation:

Connors v Nominal Defendant (No 2) [2020] NSWDC 436

Hearing dates:

4 June 2020, 9-12 June 2020, 15-16 June 2020.

Date of orders:

11 June 2020

Decision date:

11 June 2020

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Application of the Defendant is refused

Legislation Cited:

Motor Accidents Compensation Act 1999

Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Summer Rain Connors – Plaintiff
Nominal Defendant – Defendant

Representation:

Counsel:
J. Turnbull SC & J. de Greenlaw - Plaintiff
M. Williams SC – Defendant
Solicitors:
S. Adams (Adams & Co Lawyers) – Plaintiff
L. Patrick (Vardanega Roberts) – Defendant

File Number(s):

2018/00159755

Publication restriction:

Nil.

Judgment - Application to tender documents

1. HIS HONOUR: This is an application by the plaintiff seeking the Court's leave to tender reports of Ms Jacqueline Henry, a consultant occupational therapist, which reports are dated 7 February 2020 and 15 April 2020. The granting of leave is opposed strenuously by the defendant, which also claims that the matter should be referred back to the Medical Assessment Service under the Motor Accidents Compensation Act 1999 for further assessment of the percentage whole person impairment of the plaintiff. That application is opposed by the plaintiff.

2. The proceedings were commenced by a statement of claim filed 22 May 2018. That statement of claim was accompanied by a statement of particulars filed at the same time. Under the heading "Particulars of Claim for Domestic Assistance or Attendant Care", the plaintiff stated this: "The plaintiff reserves the right to [claim] for past and/or claim future domestic assistance on the basis that her psychiatric condition has and will hinder her ability to participate in daily household activities, particularly now that she has children".

3. The defendant requested particulars by letter dated 26 April 2017, obviously made prior to the filing and service of the statement of claim and the particulars which I have quoted. In her reply to the letter requesting particulars made on 3 July 2018, the plaintiff said, in answer to the 18th question:

"With respect to past domestic assistance, the claimant instructs that she resided with her partner, Sam Burnie, and her grandmother at her grandmother's residence, at Old Grafton Road, Glen Innes, for approximately eight months after the accident in, or around, 2014."

The claimant relied on her partner and grandmother for gratuitous care, due to the psychological injuries sustained as a result of the accident. There are then particulars of the various places at which the plaintiff resided and of the person, or persons, providing care to her. It is clearly stated that there was a claim for, "general housework, cooking, washing of clothes, hanging out of clothes, washing dishes and self-care and maintenance" for "one hour plus, per day".

4. The next question concerned future assistance, and a claim was made for eight hours plus per week because the plaintiff required ongoing daily care, which was claimed on a gratuitous basis. It is clear that the defendant was aware of this claim because on 15 May 2019, the defendant's solicitors wrote a letter to Dr Graham Vickery, a psychiatrist, in anticipation of his examining the plaintiff on 15 July 2019. That examination did not take place. However, the seven page letter retaining the doctor says, in its 14th paragraph, that the plaintiff was making a claim for seven hours per week domestic assistance, between the date of the accident, in which her father died, and the present time. The doctor was asked to comment on that claim. The 15th question asked of Dr Vickery was to point out that the plaintiff was making a claim for future domestic assistance, on the basis that her psychiatric condition was, and would hinder her ability, to participate in daily household activities. It noted the plaintiff was making a claim for eight hours per week. The doctor's opinion was sought about that claim.

5. On 11 March 2020, the plaintiff's solicitors wrote a letter to Dr Chris Rikard-Bell, another psychiatrist, in anticipation of Dr Rikard-Bell’s examining the plaintiff on behalf of the defendant, on 23 April 2020. Because of the COVID 19 crisis, that examination was to be held by Skype. The examination was over a period of one hour on 23 April 2020. Dr Rikard-Bell wrote a report, bearing date 21 May 2020. The 14th question asked of the doctor was about the claim for seven hours per week domestic assistance, between the date of the accident, in which the deceased died, and the present time. Dr Rikard-Bell replied thus:

"I believe the posttraumatic stress disorder has been significant. From the date of the motor vehicle accident to present, I believe she most likely has required some domestic assistance to help her cope with her needs and duties. I believe that five hours per week domestic assistance is reasonable. She would require assistance caring for herself and organising herself and being able to focus on the needs of the children."

The next question asked of Dr Rikard-Bell was about the plaintiff's claim for future domestic assistance. Dr Rikard-Bell replied thus:

"In terms of future domestic assistance, I do not believe that her psychological condition would impact [sic] on her ability to manage household duties and activities. Her condition has improved significantly, and I do not believe that she requires any future domestic assistance."

6. The question as to whether the plaintiff has significantly improved since the time that her father died is a matter that is disputed both factually and medically. However, the defendant has available to it some evidence to help deal with the plaintiff's claim for domestic assistance.

7. These proceedings were initially commenced in Sydney. On 5 July 2019, the judicial registrar transferred the proceedings to Lismore. The matter was mentioned before Levy DCJ in Sydney on 4 November 2019. His Honour stood the matter over to the seatings commencing on 10 February 2020 for directions. On 10 February 2020, his Honour made certain orders, they are these:

The parties are to attempt mediation or informal settlement conference on or before 31 March 2020.

The plaintiff is to serve it [sic] intends to reply upon, on or before 15 April 2020.

The defendant is to serve any evidence it intends to rely upon, on or before 22 April 2020.

The plaintiff is to serve any evidence in reply on or before 30 April 2020.

The matter is listed for hearing with an estimate of two days plus, at the seatings of the District Court at Lismore, commencing 9 June 2020.

8. There was no compliance with the timetable fixed by his Honour. However, the plaintiff purported to serve her medical evidence on 6 May 2020. Before me, as part of exhibit VD1, is a copy letter from the plaintiff's solicitors to the defendant's solicitors, bearing date 5 May 2020, which purports to serve a number of documents, including: a police report, which is in evidence; a coroner's report, which is in evidence; a medical certificate of a Dr Mackay, of 30 April 2015, which is in evidence, the clinical notes of Dr Mackay's practice, which are in evidence, a medical report to Dr Seeger from Dr Mackay, on 14 May 2020, which the plaintiff tendered, but, when I pointed out it did not advance the case an iota, the tender was very promptly withdrawn. The letter from the plaintiff's solicitors to the defendant's solicitors also purported to serve a copy of an MAS certificate, of Dr Scurrah, a psychiatrist who was appointed by the Medical Assessment Service, as an assessor. Dr Scurrah's certificate and report are dated 10 December 2018. The letter goes on to purport to serve reports of Ms Henry, of 7 February 2020 and 15 April 2020; and also a report of Dr Teoh, bearing date 17 April 2020, which is in evidence.

9. That letter was sent to the defendant's solicitors electronically. That electronic communication is also in exhibit VD1. The electronic communication was made at 8.24am on 6 May 2020. It originally said 8.24, but it was served at 8.42, not 8.24. Similar communications addressed to the defendant at the defendant's email address were successfully transmitted. Exhibit VD2 is an affidavit of Andrew Philip Sykes, who describes himself as the "IT Manager" of the defendant's solicitors and says that he caused a search of computer archive systems to ascertain whether the email, which was sent to him by the plaintiff's solicitors was received. He said that it was not received. Nevertheless, according to the affidavit of the plaintiff's solicitors, exhibit VD1, it did not "bounce back", nor was any message received that the email was not sent. Furthermore, at the same time as forwarding the material to the defendant's solicitor, the plaintiff's solicitor sent the same material to junior counsel for the defendant, and he received that information.

10. UCPR 10.5(2) has this chapeau, "In the case of a person having an address for service, that is a solicitor's office address, service of a document on a person may also be effected". Paragraph (c) is this, "if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address". In the second decade of the 21st century, service by that method is de rigueur. Furthermore, it has been mandated by external forces, namely the COVID 19 emergency. There was no "address for service" filed by the defendant because the defendant never filed either a notice of appearance or a defence. On Thursday 4 June 2020, I granted leave to the defendant to serve by 4pm that day a defence limited to an allegation of contributory negligence, and it stated that the defence may be filed in Court at the hearing scheduled for 9 June 2020, which is what occurred. The matter did proceed, and I did permit the filing of the defence in Court; however, it is common ground that communications had passed past electronically between the plaintiff's solicitor and the defendant's solicitor.

11. A document is served by being transmitted electronically. The plaintiff's evidence refers to the document having been transmitted electronically to an appropriate email address. The rule is facultative. It permits, for example, the posting of the documents, as a means of service; the lodging of a document at a document exchange by way of service; and the transmission electronically. It does not require that the document actually be received because the mail could get lost or destroyed. Documents could be misfiled by the addressee, misfiled in a document exchange, and documents can be overlooked or side-tracked electronically, for example, by being sent somehow to junk mail, which is where most of my electronic communications end up because that is where the government's server sends them, not where I put them. However, I accept that the plaintiff sought to and did transmit the documents electronically.

12. Why the defendant did not receive them, I do not know. However, the defendant did receive an amended statement of particulars, which was fortuitously filed on the second anniversary of the original particulars, on 22 May 2020, at 4.13pm. That updated statement, the particulars, contained the following matter, under the heading "particulars of claim for domestic assistance or attended care":

"The plaintiff claims damages for past domestic assistance, as per the reports of Ms J Henry, dated 7 February 2020 and 15 April 2020, being 22 September 2013 to 31 January 2017, at six hours per week, 1 February 2017 to date and continuing, at 16 hours per week."

That would certainly have put the defendant on notice that there were reports of Ms Henry, bearing those dates, which are the dates of the reports currently in question. Nevertheless, there was no suggestion that the defendant's solicitor asked the plaintiff's solicitors to provide copies of those reports to her when she was put on notice of it.

13. Furthermore, the defendant did apply for an adjournment. I dealt with that on Thursday, 4 June, in sitting. The adjournment was based on the proposition that the matter should be sent back to the Medical Assessment Service, under the Motor Accidents Compensation Act 1999, to ascertain the correct whole person impairment, the defendant alleging that the plaintiff had substantially improved in her health, echoing the opinion expressed by Dr Rikard-Bell. For reasons I gave on that day, I refused the application for the adjournment and directed that the matter proceed in the current sittings of this Court here at Lismore. The hearing commenced on the first day of proceedings, Tuesday 9 June 2020. At no time was it suggested, when the defendant was applying for an adjournment, that it was disadvantaged by not having received the defendant's reports and in particular, the reports of Ms Henry. Furthermore, I note that according to the material before me, the plaintiff reserved all its medical evidence again on at 7.39pm on 3 June; no doubt to comply with their requirements of serving bundles of documents to obviate the physical handing up of paperwork because of the COVID 19 emergency. In other words, the documents were, again, in the defendant's possession, at the time of the adjournment application, which I entertained on 4 June 2013.

14. It is unfortunate, I accept, that the defendant has not had the opportunity of qualifying its own occupational therapist. However, it does have the opinions expressed by Dr Rikard-Bell. Furthermore, there has been a material change since the assessment made by Ms Henry, in that the plaintiff and her family have moved from the farmhouse in which they were living, at Marom Creek, to the township of Woodburn, where they now reside in a two story apartment, or unit. The latter is a much more modern building than the former residence, and one would think, because of its configuration and relative novelty, that it would be easier to maintain, thus reducing the amount of time needed in the provision of domestic assistance. Furthermore, there are internal tensions within the assessment made by Ms Henry, which any competent lawyer, which clearly includes those appearing for the defendant, will be able to reduce in a logical fashion the amount of time that Ms Henry believes should have been spent in the provision of gratuitous care to the plaintiff by, in particular, her husband Mr Sam Burnie. In the circumstances, I exercise my discretion to permit the plaintiff to tender the reports of Ms Henry of 7 February 2020 and 15 April 2020.

15. As to the defendant's further application for the matter to be returned to MAS, I, again, reject that application. The application is identical to the one that I rejected last Thursday, 4 June; and flies in the face of, what appears to me, to be the pressing requirement of bringing these proceedings to an end, which will reduce the need for the plaintiff to reconsider her life and the way it has been tragically affected by her late father's death; and in my view, such will lead to amelioration of the plaintiff's condition, which is in the interest of the State and both parties.

16. The application of the defendant is accordingly refused

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Decision last updated: 11 August 2020