Cosenza v The State of South Australia

[2021] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

COSENZA v THE STATE OF SOUTH AUSTRALIA

[2021] SASC 102

Judgment of the Honourable Justice Parker  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT

The applicant, by an interlocutory application dated 15 June 2021, seeks to vacate the trial set down to commence on 5 October 2021.

The applicant submits that his non-economic loss and future economic loss cannot be appropriately formulated until the outcome of his cervical spine surgery and whether he will undergo brachial plexus surgery is known. Further, additional expert evidence is required to be obtained by the applicant prior to trial.

The respondent opposes the application to vacate the trial date on a number of basis. First, the Court is capable of assessing damages without knowing the outcome of further surgery. Second, the applicant has not answered when and where this surgery will be performed. Third, there is no proper basis for the Court to find that the applicant is proceeding as a prudent litigant. Fourth, it is not clear whether the proposed surgery relates solely to a condition caused by the respondent. Finally, the respondent submits that the applicant should have already produced the evidence he requires to support his claims under the various heads of damage.

Held, per Parker J:

1.      The application to vacate the trial listed to commence on 5 October 2021 is dismissed.

Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59, applied.

COSENZA v THE STATE OF SOUTH AUSTRALIA
[2021] SASC 102

Civil

1. PARKER J:     By interlocutory application dated 15 June 2021 the applicant seeks to vacate the three-week trial set down to commence on 5 October 2021.  The grounds for that application are set out in affidavits made by his solicitor, Mr Nick Xenophon, dated 15 June 2021, 11 August 2021 and 13 August 2021. 

   Legal representation

2. The applicant commenced these proceedings on 21 March 2016.  Mr Xenophon has acted for the applicant since 9 April 2021.  Prior to that time, he was mostly unrepresented although he was represented by a solicitor for six days in July 2018 and for a period of a little over three months from September 2020 until 9 December 2020.  Counsel, and later senior counsel, were also engaged for some of the latter period. That immediately preceded the trial that was to commence on 2 November 2020, then 23 November 2020 and later 1 December 2020 and ultimately 7 December 2020.

3. The applicant has completed a law degree and the appropriate legal practice qualification.  His application for admission as a practitioner was referred to the Full Court by the Board of Examiners. The matter has been part heard in the Full Court since December 2020. 

4. The respondent refers to the fact that the applicant has conducted some 30 proceedings as a plaintiff since the early 2000s, either in his own right or jointly with his late mother.  A considerable number of those proceedings involved actions for trespass in the Magistrates Court against electricity retailers and others whose representatives had approached the front door of the house he shared with his mother despite the alleged presence of a sign indicating that entry was not permitted. 

5. My understanding of the purpose of the references by the respondent to the applicant’s legal education and his involvement in other proceedings is to suggest that he has been in quite a different position to most other unrepresented litigants.  While I accept that to be the case, the fact is that the applicant has never been admitted as a legal practitioner.

6. Prior to the engagement of Mr Xenophon, the applicant has only had formal legal representation for a relatively short part of the long history of this matter. However, he was to be represented by senior counsel at the trial that was proposed to be conducted on various dates in late 2020. The 24^th affidavit sworn by Shaun Clough of the Crown Solicitor’s Office in connection with an application made by the applicant to vacate the trial date rejected on 13 November 2020 indicated that the applicant had had substantial assistance from his former solicitor over much of the history of the matter during periods when there was no solicitor on the record as acting for the applicant.

7. While I do not have a complete understanding of the other proceedings which the applicant has commenced, I have no doubt that this matter is considerably more complex.  Mr Xenophon has deposed that, upon being instructed, it became apparent to him that the preparation of the file for trial was “underdone”.  In that respect, I note that Mr Xenophon has found it necessary to seek reports that were apparently not obtained earlier even though this matter has been on foot for more than five years.

   The subject matter of the proceedings

8. The applicant filed the third revision to his statement of claim on 10 August 2021 pursuant to permission previously granted by the Court.

9. The primary allegation advanced by the applicant is that on 3 April 2015 he was assaulted by a police officer while effecting an unlawful arrest.  That assault allegedly either caused fresh injury to his spine or aggravated a pre-existing condition.

10. The applicant has also alleged that on four specific occasions in May and July 2015 police officers had entered and trespassed on his property by banging on the doors and windows and ringing the doorbell in an aggressive and intimidating manner and on one occasion shining a torch through windows and attempting to enter his car and garage.  This conduct had allegedly occurred notwithstanding that he had given written notice to SA Police prior to 5 December 2011 revoking the implied licence to approach the front door. The Police Complaints Authority had confirmed in 2011 that this notice had been recorded on the SA Police computer system. 

11. The applicant has further alleged that on about 24 August 2015 a police prosecutor had maliciously applied to the Magistrates Court for the issue of a warrant for the applicant’s arrest that excluded any right to bail.  He asserts that the particular prosecutor had previously been the subject of proceedings commenced by the applicant for trespass on his property. He further alleges that the action of the prosecutor resulted in his unlawful arrest and false imprisonment. The applicant claims damages, including exemplary damages, against the police prosecutor for misfeasance in public office and malicious prosecution. 

12. The applicant alleges that he has suffered injury to his spine that requires further surgery, treatment and rehabilitation and also injury to his right arm and shoulder, particularly brachial plexus pain radiating from the neck.  He also alleges that he suffers mental injury by way of depression, anxiety, post-traumatic stress disorder and the exacerbation of existing psychological injuries and conditions. He seeks damages, including aggravated and exemplary damages, arising from the allegedly tortious conduct of members of SA Police. 

    The history of the proceedings

13. The history of the proceedings appears in the 27^th affidavit of Shaun Clough of the Crown Solicitor’s Office.  At different times, the applicant has either sought that the matters should proceed to urgent trial or that the trial date be vacated.  In August 2017, the applicant had opposed the application by the respondent for a stay of the proceedings pending determination of his private prosecution of the police officer involved in the incident on 3 April 2015.  The trial was deferred pending the outcome of the private prosecution.  However, that prosecution was ultimately discontinued by the applicant.

14. In February 2020, the applicant submitted that the matter should be listed for trial in June 2020.  However, on 20 February 2020, the matter was listed for a three-week trial commencing on 2 November 2020.  The trial date was later amended to 23 November 2020 to accommodate the applicant’s then counsel.  On 10 November 2020, the applicant applied to vacate the trial date set for 23 November 2020.  I dismissed that application on 13 November 2020.  However, as a result of the COVID restrictions then in force, I subsequently made orders vacating that trial date.  The matter was later relisted for trial commencing on 1 December 2020 for 15 days.

15. On 25 November 2020, the applicant’s then solicitor filed an application supported by an affidavit seeking leave to cease acting for the applicant and that the trial date of 1 December 2020 be vacated.  I granted leave to the solicitor to cease acting and adjourned the trial date to 7 December 2020.

16. The applicant then produced a medical certificate in support of an application to vacate the trial date of 7 December 2020.   The effect of the medical certificate was that the applicant was unfit to conduct or attend a trial.  The matter was then listed for trial commencing on 5 October 2021. 

    The applicant’s reasons for vacating the trial

17. The fundamental issue raised in the affidavit of Mr Xenophon dated 15 June 2021 is that he does not consider that he will be able to appropriately formulate a claim in respect of the applicant’s non-economic loss and his future economic loss until he knows the outcome of his cervical spine surgery and also knows whether he will be undertaking brachial plexus surgery.  Mr Xenophon has also deposed that he considers that extensive additional expert evidence is required prior to trial.  He has stated that this evidence will include reports from an occupational physician as to the nature and extent of the applicant’s medical condition and its effect on his working capacity and a report from an occupational therapist in relation to his functional capacity. Mr Xenophon has also stated that it would be necessary to obtain reports about the applicant’s spinal surgery and from his plastic and reconstructive surgeon in relation to the brachial plexus injury.  Additionally, Mr Xenophon has indicated that he considers further psychiatric evidence is required together with expert evidence on police procedures and the use of force by police. Mr Xenophon has deposed to the steps he is taking to obtain these various reports.

18. The respondent has objected to some of the material deposed to by Mr Xenophon in his first affidavit on the basis that it is hearsay evidence of expert medical opinion not properly the subject of an affidavit based on information and belief in interlocutory proceedings.  I consider that for present purposes those defects have been adequately dealt with in Mr Xenophon’s second affidavit dated 11 August 2021.  Relevant medical reports are exhibited to that affidavit.

19. The substance of the medical reports is as follows.  Dr Michael Selby performed spinal surgery on the applicant as a public patient in 2014.  While Dr Selby was a consultant at the Royal Adelaide Hospital (the RAH) until quite recently, he no longer performs surgery on public patients at the RAH.  Dr Selby advised that he could undertake the required surgery on the applicant as a private patient.  A very rough early estimate of the cost would be about $50,000.  Mr Xenophon had suggested to the respondent that it should meet the cost of private surgery with that expense being offset against any damages.  However, the respondent declined to do so on the basis that it conducts a public health system and sees no reason why it should meet the cost of private surgery.

20. The applicant consented to spinal surgery on 18 February 2021.  He has been classified as a category 2 priority patient.  That ordinarily means that surgery should be conducted within 90 days.  However, surgery has apparently been delayed by the demands placed on the public health system by the COVID pandemic.  Dr Selby noted in a letter dated 11 August 2021 that the applicant’s discomfort from his spinal condition had previously been managed but it had now become significant enough to warrant surgical intervention. 

21. In a letter dated 3 August 2021 Mr YH Yau, a consultant in spinal services at the RAH, advised that the applicant was to be reviewed by another spinal consultant, Mr Lee, at the RAH on 2 September 2021.  That assessment will determine whether surgery was still required and, if so, what procedure was recommended.  If the applicant consents to that surgery, his place on the elective surgery waiting list will be maintained and it was hoped that the surgery may be undertaken within three months.  However, that may be affected by the evolving COVID situation. 

22. The applicant submits that the application to vacate the trial date does not involve case management principles.  The issue is the doing of justice between the parties.  Mr Xenophon foreshadowed the present application and also the amendments to the statement of claim soon after being instructed.

23. The applicant also produced a letter from his long standing general practitioner, Dr Girolamo Vinci, who stated that due to his injuries he could not sit for more than 30 to 60 minutes at a time and could not stand for more than 30 minutes.  On that basis, Dr Vinci expressed the opinion that this would make it difficult to give evidence comfortably.

    The respondent’s submissions

24. The respondent provided extensive written submissions comprising 16 pages.

25. The essential points made by the respondent are as follows.  In relation to the applicant’s contention that his damages cannot be assessed with any reasonable degree of certainty until he has undertaken further surgery, the respondent submits that his medical condition is longstanding and has been the subject of extensive expert reports.  For that reason, the Court is capable of assessing his damages at the trial listed to commence on 5 October 2021. 

26. Furthermore, the respondent submits that the material relied upon by the applicant fails to answer where and when the surgery will be performed or the prospects of improvement from that surgery.  Thus, the Court has not been supplied with any evidence on which it could determine that the surgery will determine the applicant’s ultimate physical state.

27. In this light, the respondent submits that there is no proper basis for the Court to find that the applicant is proceeding as a prudent litigant by requiring Dr Selby to perform the operation, given that he undertook the previous surgery about seven years ago, and in seeking to have the operation outside the public health system.  I pause to note that in response to this submission the Court was informed from the bar table that the applicant was making enquiries as to his ability to fund the surgery privately given the refusal by the respondent to do so.

28. The respondent also submits that given that the applicant clearly suffered from pre-existing degenerative changes prior to the 2015 incident, and there has been further degeneration since that time, it is far from clear that the proposed surgery relates solely to a condition caused by the respondent (and that of course will be the subject of dispute at trial).

29. In relation to the assertion that the applicant requires further expert reports to support his claims under the various heads of damage, the respondent submits that at this late stage the applicant should have already produced that evidence.  This failure results from his own inaction and should not cause prejudice to the respondent, particularly given that this is the fourth application to vacate the trial date. 

30. Further to this submission, the respondent also observes that it has not been sufficiently explained why the applicant has not previously organised appointments and obtained reports, whether on his own behalf or through his previous solicitor when the matter was being prepared for trial in late 2020 or by Mr Xenophon given that he has been retained since April 2021. 

31. The respondent also observes that the applicant has done no more than merely consent to be placed on the waiting list for spinal surgery.  He has not actually decided to have that surgery as yet.  In that context, the respondent notes that in a letter dated 18 February 2021 Dr Selby had advised Dr Vinci that the applicant was quite anxious about the prospect of further surgery and although he had been listed to have the surgery as a category 2 patient he was still thinking about whether he should proceed with the surgery.  The need for surgery had also been raised with him as far back as 2015 and repeatedly thereafter. 

32. In relation to the brachial plexus surgery, the respondent points out that the applicant cancelled the surgery that was to be undertaken on 28 September 2018. This surgery has been described by Dr Griffin in his report of 23 April 2018 as delicate, rare, with the potential for harm and an uncertain outcome. Dr Griffin has also stated in his report of 24 August 2020 that the applicant no longer feels that this surgery is imperative. It is also not apparent why the performance of the brachial plexus surgery must await the outcome of the spinal surgery.

33. The respondent also submits that it is not necessary that the applicant must have obtained maximum medical improvement or some other unspecified level of stability before the Court is able to assess his damages, should the respondent be found liable.  Moreover, the respondent observes that there is no evidence before the Court as to whether and to what extent surgery may improve the applicant’s current condition.  Furthermore, taking the applicant’s case at its highest, his injury is a mixture of a pre-existing condition with aggravation by the respondent.  This is not a case where the surgery is intended to address a specific injury caused by the respondent.

34. The respondent contends that the expert reports already provided by the applicant, together with those now being pursued by Mr Xenophon, when combined with the evidence to be given by the experts at trial, will provide a proper basis for the Court to assess damages if the respondent was found liable for the exacerbation of the applicant’s injury.

35. The respondent also submits that it will suffer prejudice from the further delay in the conduct of this trial.  The respondent will call up to 10 police witnesses and also ambulance officers whom had dealings with the applicant in 2015.  The four trespasses that are said to have occurred at the applicant’s home were mundane events in the work of a police officer and are not matters of which they should have any particular recall. The further fading of memories if this matter is adjourned for an indeterminate period will cause prejudice to the respondent.

36. The respondent also refers to the observations made by the Full Court in Channel Seven Adelaide Pty Ltd v Manock[1] concerning the application of the principles stated by the High Court in AON Risk Services Australia Ltd v Australian National University.[2]

    [1] [2010] SASCFC 59.

    [2] (2009) 239 CLR 175.

    Consideration

37. The effect of the application to vacate the trial date is that the matter will be adjourned until some indeterminate time in the future.  The applicant has not yet definitely decided whether or not he will undergo surgery for his spinal condition.  The letter from Mr Yau indicates that whether or not surgery is required and the nature of the procedure to be undertaken will be determined following an assessment to be conducted at the RAH on 2 September 2021.  If surgery is recommended, and the applicant consents, his current place on the elective surgery list will be maintained.  It is hoped, but by no means certain, that the surgery might then be undertaken within three months, in other words, by the end of 2021.  Mr Xenophon has deposed that, in his experience, a further period of six months after the surgery would be required for the applicant’s condition to be reasonably stable and for a prognosis to be considered.  An expert report would be required at that time and probably an answering report.

1. Thus, the most optimistic outlook is that if the applicant proceeds with the spinal surgery, and that occurs at the earliest opportunity, the matter might possibly be ready for trial by about July 2022. However, I regard that date as very optimistic and dependent upon several uncertain factors. A more realistic date may be well into the second half of 2022.

2. The position in relation to the brachial plexus surgery is even more uncertain.  The Court has not been provided with any information indicating the likelihood of that surgery occurring or the possible timing.  However, it does seem that a decision as to the brachial plexus surgery would not be made until the outcome of any spinal surgery is known. 

3. If the trial was to be deferred until after brachial plexus surgery was conducted, the likely timing is unknown.  If the waitlist for that surgery and the time for recovery is similar to the spinal surgery, it may be that the trial could not be conducted until sometime in 2023 at the earliest.

4. I consider that senior counsel for the respondent is correct in his submission that it is commonplace for courts to assess damages in personal injury cases based on expert medical evidence as to the likelihood of remedial treatment being successful.  While in many instances it may be preferable to defer trial until the outcome of medical intervention can be determined with confidence, the allegedly tortious conduct of the respondent’s employee occurred more than six years ago in circumstances where the applicant clearly suffered from a pre-existing degenerative spinal condition.

5. While I accept the correctness of Mr Xenophon’s view that additional reports should be obtained before this matter proceeds to trial, he has already taken appropriate steps to secure such reports. A period of six weeks remains available before the trial date although of course sufficient time must be allowed for the respondent to obtain its own expert reports if it considers that to be necessary.

6. The respondent complains that it will suffer prejudice if this matter is further delayed due to the further decline of witness memory.  While the incident involving the alleged unlawful arrest and assault was subject to investigation by SA Police and the Police Complaints Authority, with the result that the officer concerned may well have retained a good memory of the events or be capable of refreshing his memory from contemporaneous or nearly contemporaneous notes, the submission that the other police and ambulance officers who were performing routine tasks may not be in that position has some force.

7. While senior counsel for the applicant has submitted that this application does not concern case management principles, I accept the respondent’s submission that the principles referred to in AON and Manock cannot be disregarded in a case where the proceedings were commenced more than five years ago and the matter was thought ready for trial in November and December 2020 when the applicant was then represented by very experienced senior counsel.  What is now proposed is that the matter be adjourned for an indeterminate time, with a trial date not being before the second half of 2022 at the earliest.

8. I recognise that the applicant’s legal representatives will be under substantial pressure over the next six or so weeks to obtain and consider the further expert reports identified by Mr Xenophon. However, I do not regard that task as impossible, particularly as Mr Xenophon has deposed to the steps already taken in that respect.

9. I accept the correctness of the respondent’s submission that the Court can assess the extent of the applicant’s injury and the resultant disability without him having first having undergone surgery. While I recognise that the Court’s task may be made easier if surgery has already been performed and the outcome clearly established, in this instance the performance and timing of spinal surgery are by no means assured. The current position in relation to the brachial plexus surgery seems to be no more than speculative.

10. For these several reasons, I dismiss the application to vacate the trial date.  I will hear the parties as to further orders. The extent of any special arrangements that may need to be made to accommodate the applicant’s incapacity will need to be considered prior to trial.