Deuble v Janet Penna by her Limited Administrator Alyce Catherine Lesberg - [2021] WASC 27

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DEUBLE -v- JANET PENNA by her Limited Administrator ALYCE CATHERINE LESBERG [2021] WASC 27
CORAM:   SMITH J
HEARD:   23 DECEMBER 2020
DELIVERED          :   10 FEBRUARY 2021
FILE NO/S:   CIV 1951 of 2020
BETWEEN:   MARK SPENCER DEUBLE
Applicant
AND
JANET PENNA by her Limited Administrator ALYCE CATHERINE LESBERG
Respondent

Catchwords:

Cross-vesting jurisdiction - Application to remove a claim for damages for personal injuries proceeding in District Court to the Supreme Court and then to remit the matter to another State - Whether interests of justice that the matter be determined in the Supreme Court of Tasmania - Turns on own facts

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(2), s 8(1), s 8(3)

Result:

Application for transfer dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr T J Hammond
Respondent	:	Mr R D McCabe

Solicitors:

Applicant	:	Barry Nilsson Lawyers
Respondent	:	Percy Kakulas Gleeson

Case(s) referred to in decision(s):

Bailey (by his next friend the Public Trustee) v Climaze Holdings Pty Ltd (Unreported, WASCA, Library No 980455)
Bechtel Constructions (Australia) Pty Ltd v Alkhattab [2016] NSWSC 1749
Cavill v The State of Western Australia [2008] WASCA 108
Feeley v Zaghloul [2018] WASC 16
Heyward v Moyle [2013] TASSC 34; (2013) 23 Tas R 111
Pilbara Ports Authority v Ashton [2019] NSWSC 1488

SMITH J:

Introduction

The respondent, Janet Penna, by her limited administrator, Alyce Catherine Lesberg,[1] sues the applicant, Mark Spencer Deuble, as a defendant, in the District Court of Western Australia, for damages for personal injury, following serious injuries sustained in a motor vehicle accident in Tasmania on 4 April 2017.[2]
[1] On 21 December 2020, the State Administrative Tribunal appointed Alyce Catherine Lesberg (the first respondent's daughter) as her limited administrator, to seek legal advice on behalf of the respondent and to bring and defend actions, suits and other legal proceedings in the name of the respondent, and if appropriate to settle the same, by reason that the respondent is unable, due to a mental disability, to make reasonable judgments in respect of the matters relating to part of her estate and is in need of an administrator of her estate.
[2] The respondent instituted her action against the applicant by writ in the District Court on 12 February 2020.
Mr Deuble makes an application for the transfer of the proceeding in the District Court to this court, pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), and to remit the matter to the Supreme Court of Tasmania, pursuant to s 8(3).[3]
[3] The parties agree that the procedure for removal of proceedings from the District Court is not pursuant to s 76 of the District Court Act 1969 (WA) but by removing the matter to the Supreme Court from the District Court, pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA); see the observations made by Murray J in Bailey (by his next friend the Public Trustee) v Climaze Holdings Pty Ltd (Unreported, WASCA, Library No 980455) 4 ‑ 5.
Mrs Penna is a retiree and lives with her husband, Kym Penna, in Burekup, a country town in the South West that is approximately 168 km and a two-hour drive from Perth.
On 4 April 2017, Mrs Penna and Mr Penna were on holiday in Tasmania when they were involved in a serious motor vehicle accident. Mr Penna was the driver and Mrs Penna was seated in the rear passenger seat as she had, prior to the accident, broken her ankle.
The accident occurred in Buckland in Tasmania. Buckland is 63 km north of, and approximately an hour's drive from, Hobart.
Whilst they were travelling along the Tasman Highway, Mr Deuble, who was driving a Ford Transit van in the opposite direction on the Tasman Highway, crossed over onto the wrong side as he negotiated a bend in the road, and drove into the path of Mr and Mrs Penna's vehicle, causing a head‑on collision.
There was one independent witness to the accident, a motorcycle rider, Robert McPhee, who was travelling on his motorcycle behind the vehicle driven by Mr Penna. Mr McPhee's motorcycle collided with the rear of the vehicle driven by Mr Penna, but Mr McPhee was not injured in the collision.
As a result of the accident, Mr Penna and Mr Deuble received minor injuries.
After the accident, Mr Deuble was charged by the police with a number of offences arising out of the collision.
On 7 February 2019, Magistrate Mollard of the Hobart Magistrates Court found the charges unproven, and acquitted Mr Deuble of:
(a)one charge of causing grievous bodily harm to another person by negligent driving, contrary to s 32(2B) of the Vehicle and Traffic Act 1925 (Tas);
(b)one charge of failing to keep left of an oncoming vehicle, contrary to r 131 of the Road Rules 2009 (Tas);
(c)one charge of failing to have proper control of a vehicle, contrary to r 297(1) of the Road Rules 2009; and
(d)one charge of negligent driving, contrary to s 32(2) of the Vehicle and Traffic Act.
As a result of the accident, Mrs Penna suffered catastrophic injuries, the most serious being an extremely severe traumatic brain injury. Her other injuries included fractures to the cervical and lumbar spine, injury to her right shoulder, and bruising to her chest and abdomen. Mrs Penna claims that the bruising to her chest and abdomen was caused by her seat belt. This is an issue in contest.
Mr Deuble's insurers have denied liability on his behalf. What is in issue is the extent to which Mr Deuble breached a duty of care to Mrs Penna and whether his manner of driving departed from the appropriate standard of care.[4]
[4] ts page 10.
His insurers also claim that Mrs Penna's damages ought to be reduced on account of contributory negligence, on the basis that she was not wearing her seat belt, or alternatively that she was not wearing a seat belt properly.
On the day of the accident, Mrs Penna was admitted to intensive care at the Royal Hobart Hospital. On 15 April 2017, while still in a comatose state, she was transferred to Royal Perth Hospital to complete her recovery in Western Australia. Mrs Penna was an inpatient of Royal Perth Hospital, Fiona Stanley Hospital and Brightwater rehabilitation facility until she was discharged to her home on 28 August 2018.
Mrs Penna suffered a traumatic brain injury in the extremely severe range, with post-traumatic amnesia of approximately three and a half months (from the day before the accident). As a result, she has some permanent cognitive impairment and, among other permanent injuries, she has a severe physical impairment causing paralysis of her right arm and impairment of her right leg. As a result of a brainstem injury, she also has double vision to forward gaze and towards the right, left arm incoordination, and impaired voice (dysarthria) and swallow (choking). She also has left arm incoordination.[5]
[5] Affidavit of Peter Forbes-Smith affirmed 23 September 2020, Attachment PFS 15, report of Dr Stephen Buckley, page 141.
As a result of Mrs Penna's traumatic brain injury, she requires care for 24 hours a day, seven days per week.
Mrs Penna has filed and served her statement of claim and particulars of damage. Mr Deuble has filed a conditional appearance and is yet to file his defence. Both liability and damage is in dispute. At the time of hearing of the application for transfer of the action, the parties had not completed discovery.
Mrs Penna opposes the application to transfer her action to the Supreme Court of Tasmania.
It is common ground that irrespective of whether the action is heard and determined in Tasmania or Western Australia, some witnesses will have to travel interstate.
The central question in this application is: is it in the interests of justice that Mrs Penna and her witnesses be required to travel interstate to give evidence in person or to give evidence by an audio‑visual link, or should Mr Deuble and his witnesses be required to travel interstate to give evidence in person or to give evidence by audio‑visual link. There is also an issue as to whether it is more appropriate that the Supreme Court of Tasmania, rather than the District Court of Western Australia, determine the question of interpretation of Tasmanian laws in the context of Tasmanian legislation.

Legal principles ‑ transfer of proceedings ‑ the national legislative cross‑vesting scheme

An action in the District Court can only be transferred to a court in another state if the action is pending in the Supreme Court. By s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act, the Supreme Court is able to remove the proceedings from the District Court so that it can consider, under s 8(3) and s 5(2), whether the action should be transferred to a court in another State.
Section 8 of the Jurisdiction of Courts (Cross-vesting) Act provides:
8.Orders by Supreme Court
(1)Where ‑
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in ‑
(i)a court, other than the Supreme Court, of the State; or
(ii)a tribunal established by or under an Act;
and
(b)it appears to the Supreme Court that ‑
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court; or
(ii)an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court,
the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court.
(2)Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court.
(3)Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed.

By s 5(2)of the Jurisdiction of Courts (Cross-vesting) Act:
Where ‑
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b)it appears to the first court that ‑
…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,
the first court shall transfer the relevant proceeding to that other Supreme Court.

In Feeley v Zaghloul, Allanson J set out the established principles that apply when a party to a personal injuries action (commenced in the District Court) seeks to transfer the matter to a Supreme Court of another State or Territory:[6]
[6] Feeley v Zaghloul [2018] WASC 16 [11] ‑ [13].
The principles to be applied in this application are not controversial. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400 [14], Gleeson CJ, McHugh and Heydon JJ said:
'An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.'
The interests of justice concern the interests of both parties, rather than the selection of the most advantageous, or least disadvantageous, forum for one of them. The court must apply the statute without any presumption as to where the balance of the interests of justice might come down, and adopt what has been described as a 'nuts and bolts' management decision to decide which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
The court looks for objective factors which help to identify the natural forum in which the dispute would fall to be decided. Relevant considerations may include the cost and efficiency of proceedings in the respective jurisdictions, and 'connecting factors' including:
•matters of convenience and expense such as availability of witnesses;
•the places where the parties respectively live or carry on business;
•the law governing the relevant transaction; and
•in a personal injury claim arising out of a claim in tort, significant weight is to be attached to the place of the tortious wrong, particularly where that coincides with the residence of the parties.

Relevant connecting factors

It is fundamentally uncontroversial that neither party bears an onus to establish which is the appropriate forum to determine the action. The only test on the relevant facts and circumstances before the court is: where do the interests of justice lie?
Mr Deuble claims that the following connecting factors weigh in favour of the transfer of the action to Tasmania. These are:
(a)the alleged tortious act occurred in Tasmania;
(b)the substantive law of Tasmania applies to the action;
(c) while the residence of either party is not determinative, it would ordinarily be the residence of the defendant (Mr Deuble) that is important to establish jurisdiction;
(d)all potential witnesses who can give evidence relevant to liability are resident in Tasmania; and
(e)all potential witnesses who can give evidence relevant to contributory negligence are resident in Tasmania.
Mrs Penna concedes that there are relevant connecting factors that point to both Western Australia and Tasmania being the most appropriate natural forum to determine the action, but points out that it is not the case that all potential witnesses who can give evidence relevant to liability and contributory negligence are resident in Tasmania. In particular:
(a)as to liability, the only eyewitness to the accident, Mr McPhee, resides in Melbourne, and would have to either give his evidence by audio‑visual link or travel to give evidence in person, irrespective of whether the trial is held in Perth or Hobart;
(b)Mr Penna's evidence will be relevant as to liability, contributory negligence and quantum of damage;
(c)Mrs Penna is likely able to give evidence relevant to liability in that she remembers the day before the accident and will give evidence as to her practice of wearing a seat belt while sitting in the back of the high vehicle prior to the day of the accident. Mrs Penna will, in any event, be called to give evidence to testify as to the nature of her disabilities, as well as the impact those disabilities have had upon her life, and the disruption those disabilities have caused to the enjoyment of her life and management of her affairs. (Consequently, her evidence may be relevant to contributory negligence, and will be relevant to quantum of damage);
(d)all of the witnesses relevant to the quantum of damages are located in Western Australia or in States of Australia other than Tasmania;
(e)neither the District Court of Western Australia nor the Supreme Court of Tasmania can lay claim to being a specialist forum in respect of the law of tort, as modified by the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) and the Civil Liability Act 2002 (Tas); and
(f)whilst it is suggested that the Motor Accident Insurance Board of Tasmania may commence recovery proceedings in the Tasmanian Supreme Court (for recovery of scheduled benefits pursuant to s 28C of the Motor Accidents (Liabilities and Compensation) Act, those proceedings, if instituted, will follow the outcome of Mrs Penna's personal injury action.[7]

The law of Tasmania ‑ personal injuries sustained in motor vehicle accidents

[7] In oral submissions before the court, counsel for Mrs Penna indicated that it is uncontroversial that if Mrs Penna is successful in her personal injuries claim that the statutory payments would have to be repaid.

It is uncontroversial that because the accident occurred in Tasmania, the substantive law of Tasmania will apply to the resolution of issues raised in the action.
In her particulars of damage, Mrs Penna makes claim for an award for gratuitous services.[8] It is noted that, pursuant to s 28C of the Civil Liability Act, an award of damages relating to personal injury, to which pt III of the Motor Accidents (Liabilities Compensation) Act applies, is not to include compensation for gratuitous services required by a person as a result of injuries to that person caused by the negligence of another person, or damages for the loss by the injured person of the capacity to provide gratuitous services to another person. It is common ground that there is no comparable legislative provision in the law of Western Australia. However, this issue may only go to the admissibility and relevance of lay witness evidence of gratuitous care provided to Mrs Penna.
[8] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS5, page 3.
Tasmania has a no fault statutory benefits payment scheme, made payable to a person injured in a motor vehicle accident pursuant to the Motor Accidents (Liabilities Compensation) Act, in addition to common law claims in negligence for compensatory damages.
Mrs Penna has been paid daily care payments under the scheme. 'Daily care' is defined in s 2 of the Motor Accidents (Liabilities Compensation) Act to mean treatment, therapy, nursing services, assistance, supervision, services for rehabilitation or other care. Section 2(5) provides that for the purposes of the Act:
a person requires daily care if, as a result of having suffered personal injury resulting directly from a motor accident, the person requires, or is likely to require, daily care for at least 2 hours a day for an indefinite period, commencing not later than one year after the date of the accident.
Section 27A of the Motor Accidents (Liabilities Compensation) Act provides:
27A.People requiring daily care
(1)This section applies where a liability has been incurred for the payment of damages to a person in respect of personal injury resulting directly from a motor accident.
(2)If a court is satisfied, at the time of giving judgment in respect of a liability referred to in subsection (1), that the person to whom any damages are to be paid requires daily care as a result of suffering the personal injury giving rise to the damages, the court ‑
(a)as part of its judgment, is to certify that the person requires daily care; and
(b)is not to include in the damages any amount in respect of the daily care which that person requires as a result of the personal injury after the date of the judgment as will be recoverable by that person under subsection (4) as medical benefits or disability benefits.
(3)If ‑
(a)a person makes a payment into court or an offer of compromise in respect of a claim arising from a liability referred to in subsection (1); and
(b)the person making the payment or the offer of compromise gives notice to the person making the claim that the payment or offer is made on the basis that, because of the personal injury giving rise to the claim, the person making the claim requires daily care; and
(c)the person making the claim accepts the payment or offer ‑
the person making the claim is taken, for the purposes of this Act, to require daily care.
(4)Subject to subsections (5) and (6), if ‑
(a)a court certifies in accordance with subsection (2)(a) that a person requires daily care; or
(b)a person accepts a payment into court or an offer of compromise in accordance with subsection (3)(c) ‑
the Board is to pay that person medical benefits or disability benefits for so long as the person needs those benefits because of the personal injury giving rise to the liability referred to in subsection (1) .
(5)If ‑
(a)a court awards damages to a person who requires daily care; and
(b)those damages include an allowance in respect of the future cost of any item or service ‑
no medical benefits or disability benefits are payable in respect of the cost of that item or service after the date of the judgment awarding the damages.
(6)If a person who requires daily care and who would otherwise be entitled to medical benefits or disability benefits, accepts a payment into court, or an offer of compromise, which is expressed to include an allowance in respect of the future cost of any item or service, no medical benefits or disability benefits are payable in respect of that item or service after the day of acceptance of the payment or offer.

Mr Deuble contends that the fact that Mrs Penna has been paid statutory daily care payments and makes a claim for gratuitous services raises issues of interpretation of the laws of Tasmania that do not have equivalent provisions in Western Australia.
In putting forth this argument, Mr Deuble contended that the provisions of the Tasmania no fault scheme may raise complexities with a plaintiff's common law rights, but in support of this proposition, despite the fact that the provisions in question have been enacted for a number of years, no authorities were referred to. Instead Mr Deuble seeks to rely upon the opinion of his solicitor.
RACQ Insurer Ltd,[9] the compulsory motor vehicle third party insurer for Mr Deuble, instructed Barry Nilsson Lawyers in Hobart to act for Mr Deuble. The principal of Barry Nilsson Lawyers, Peter Forbes‑Smith, in an affidavit affirmed by him on 23 September 2020, points out that the common law of tort has been modified in Tasmania by the Motor Accidents (Liabilities Compensation) Act and the Civil Liability Act, and that by s 3B of the Civil Liability Act (except pts 2, 3, 5, and 5A divs 1, 2, 3, 4, and 7 of pt 6, and pt 7 and pt 8 of the Civil Liability Act) the Civil Liability Act does not apply to, or in respect of, civil liability relating to an injury to which part III of the Motor Accidents (Liabilities Compensation) Act applies.
[9] The insurer RACQ Insurer Ltd is located in Queensland.
In his affidavit, Mr Forbes-Smith states:[10]
From my experience, I understand that there are unresolved legal issues in this jurisdiction attending the proper interpretation of the MAA, especially s 2 as it relates to the definition of daily care. As far as I am aware, there is no authority in this jurisdiction on the definition. Similarly, there is no authority (apart from how to consider contributory negligence) on the entitlement of persons who qualify for daily care to a certificate under s 27A of the MAA.
The plaintiff is being treated by the MAIB as a person who requires daily care and is paying scheduled benefits to her accordingly.
Again, from my experience, there are legal issues in this jurisdiction as to the proper construction of the definition of daily care and other provisions in the enactment, especially s 27A. In these circumstances, it is my opinion that it is preferable that the Supreme Court of this State determine any issues attending the construction of the MAA as they may arise in the circumstances of this case.
…
These provisions are also unique to Tasmania.
Again from my experience, the provisions of the no fault scheme under the MAA and their interaction with a plaintiffs common law rights may be complex and involve references to the Motor Accidents Compensation Tribunal created under the MAA.
If recovery of scheduled benefits is sought by the MAIB pursuant to 28 C of the MAA, it would, in my opinion, be likely that the plaintiff's proceedings would be consolidated with the recovery proceedings. In my opinion, this course would best accommodate the complexities of the interaction between the no fault provisions in the MAA and the plaintiffs common law rights.
[10] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020 [53] ‑ [59].
As Mr Forbes‑Smith points out, it is not the case that the daily care provisions of the statutory scheme have not been considered by a court in Tasmania. In 2013, in Heyward v Moyle, Blow CJ explained how deductions are to be made under the Motor Accidents (Liabilities Compensation) Act by a court awarding damages in a personal injury claim in tort following a motor vehicle accident:[11]
[11] Heyward v Moyle [2013] TASSC 34; (2013) 23 Tas R 111 [3] ‑ [4].
The plaintiff in this action, Paula Heyward, was travelling in a vehicle along Forth Road on the north‑west coast of Tasmania in the early hours of 14 May 2006. The vehicle left the road and rolled about 80 metres into a farming property. She was very seriously injured. She has sued the defendant, Jai Moyle, alleging that he was driving the vehicle, that she was a front seat passenger, and that the accident was caused by his negligence. Liability has been disputed on a number of grounds, including contributory negligence.
As a result of her injuries, the plaintiff requires daily care for more than two hours per day, and is likely to require that level of care indefinitely. By virtue of s 2(5) of the Act, she is therefore 'a person requiring daily care' for the purposes of the Act. The relevant provisions in the Act, and in the regulations under the Act, can be summarised as follows:
•Section 23(1)(a) provides that the Board 'must pay the benefits prescribed by the regulations if a person who is a resident of this State suffers personal injury resulting directly from a motor accident and … the motor accident occurs in this State'.
•Such benefits are known as 'scheduled benefits'. In s 2(1) of the Act, 'scheduled benefits' is defined to mean 'the benefits specified in the regulations'.
•When a court gives judgment for damages in respect of personal injury resulting directly from a motor accident, and the plaintiff requires daily care as a result of the injury, the court is required, as part of its judgment, to certify that the plaintiff requires daily care: s 27A(2)(a).
•When a court certifies in accordance with s 27A(2)(a) that a person requires daily care, the Board is required to pay that person 'medical benefits or disability benefits for so long as the person needs those benefits because of the personal injury …': s 27A(4).
•In s 2(1) of the Act, 'medical benefits' is defined to mean 'medical benefits referred to in the regulations'.
•Prior to 1 March 2010, the Motor Accidents (Liabilities and Compensation) Regulations 2000 were in force. Regulation 8 thereof provided, 'The benefits payable by the Board under section 23(1) of the Act and the provisions in accordance with which those benefits are payable are specified in Schedule 1.'
•In those regulations, Sch 1, Pt 2, cl 1(1) provided, 'Subject to this Part, where a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably and necessarily incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits.'
•Since 1 March 2010, there have been identical provisions in the Motor Accidents (Liabilities and Compensation) Regulations 2010: reg 9, and Sch 1, Pt 2, cl 1(1).
•Under s 27A(2)(b), when a plaintiff requires daily care, the court is required not to include in the damages it awards 'any amount in respect of the daily care which that person requires … after the date of judgment' that will be recoverable under s 27A(4) by way of medical benefits or disability benefits.
•Under s 27(1) of the Act, as a general rule, when a plaintiff is entitled to recover damages in respect of a personal injury, and 'a scheduled benefit' has been paid pursuant to the Act in respect of that injury, that payment 'shall, so far as it extends, be taken to be a payment in or towards the discharge of that liability, and the amount of those damages shall be reduced accordingly'.
Although counsel for Mr Deuble and Mr Forbes-Smith contend that there are complexities raised between the interaction between the no fault provisions in the Motor Accidents (Liabilities Compensation) Act and the Civil Liability Act, those complexities are unexplained. Whilst these provisions have been operative for many years, it is surprising that, if there are complexities in the interpretation and interaction between common law claims and the no fault scheme, there has been little, if any, litigation which raised some of these issues.
As counsel for Mrs Penna points out, the consideration of the court applying local laws should not be elevated to the status of being the decisive factor dictating the success of a transfer application.
In Bechtel Constructions (Australia) Pty Ltd v Alkhattab, Campbell J said that consideration of a court applying local laws is but one factor to be weighed and assessed with other factors in every case and the question of the applicable law should not be elevated to the status of a trump card, dictating the success or otherwise of a transfer application.[12] In that matter, it was argued that the matter should be transferred from New South Wales to Queensland because of the familiarity of Queensland courts with the law of Queensland, and medical experts in Queensland who were familiar with assessing personal injury in accordance with Queensland 'injury scale value'.
[12] Bechtel Constructions (Australia) Pty Ltd v Alkhattab [2016] NSWSC 1749 [24]; applied Pilbara Ports Authority v Ashton [2019] NSWSC 1488 [54] (Lonergan J).
Consequently, this is one factor to be weighed in determining whether it is in the interests of justice to transfer the action to Tasmania. However, in the absence of any precise enumeration by Mr Deuble's lawyers of what the complexities of law are that are claimed to arise, or could arise, in the assessment of Mrs Penna's damages, this factor cannot be given a great deal of weight.

The place of the alleged tortious wrong

Whilst in some matters the place of the tortious wrong is to be given significant weight, particularly where at least one of the parties to the action is located in the same place as the location of the alleged tortious wrong, this factor alone is not determinative.
Counsel for Mr Deuble argues that this is a case where it is 'highly possible' that the trier of fact would be assisted by a view of the location of the accident. Such a view could only be conducted by the court if the action is transferred to Tasmania.
Counsel for Mrs Penna disagreed, and put to the court that the case against Mr Deuble as to liability will turn upon what witnesses say they saw in the manner of Mr Deuble's driving, not the location of anything that could be seen if a view is conducted, and that the court will be more assisted by an assessment by an independent crash reconstruction expert. Consequently, counsel for Mrs Penna argues that this is not a case where a view would be of assistance.
This court is unable to make any useful judgment as to whether a view of the location of the accident would, or would not, be of any assistance to the trier of the action in circumstances where:
(a)no witness evidence is before this court; and
(b)neither party has obtained a copy of the transcript of the proceedings in the Magistrates Court that resulted in the acquittal of Mr Deuble of all the charges laid against him by the Tasmanian police, which charges arose out of the action or inaction of Mr Deuble alleged by the police to cause the collision in question.
Given that sometimes a view of the location of an accident is of assistance in determining liability in a personal injuries action, this factor must be given some weight. However, absent any articulated basis upon which a view could be said to be necessary, this factor cannot be given a great deal of weight.

The location of the parties and their witnesses

Having heard the submissions made by counsel for Mr Deuble, it is clear that the witnesses who are located in Tasmania who will be called, or who are likely to be called, to give evidence on behalf of Mr Deuble are witnesses who can either give evidence that is relevant to:
(a)the manner of driving of Mr Deuble and the surrounding circumstances which led to the vehicle being driven by Mr Deuble drifting onto the wrong side of the road and colliding with the vehicle driven by Mr Penna; and/or
(b)whether at the time the accident occurred Mrs Penna was wearing a seat belt.
Mr Forbes‑Smith in his affidavit states that the defence will potentially call the following witnesses:[13]
[13] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020 [31] - [35].
(1)The defendant Mark Deuble who resides in Tasmania.
(2)Up to five police and lay witnesses, as referred to in paragraph 21 of my affidavit, who from my knowledge still reside in Tasmania.
(3)Up to six TFS [Tasmanian Fire Service] witnesses, as referred to in paragraph 26 of my affidavit, whom from my knowledge still reside in Tasmania.
(4)The rider of the motorcycle Robert McPhee of Mooroopna in Victoria.
In regards to the allegations of contributory negligence and voluntary assumption of risk there is evidence in the RHH [Royal Hobart Hospital] notes relating to bruising or other objective evidence of trauma, or absence of, which is relevant to the defences. The plaintiff was an inpatient at RHH from 4 to 11 April 2017.
In the RHH notes there are observations noted by 3 emergency department nurses and other RHH staff including doctors and nurses. There are in excess of 10 potential witness working at the hospital that may be required to give evidence in relation to allegations of contributory negligence and voluntary assumption of risk.
Included in the RHH notes are Ambulance Tasmania records which include notes from ambulance officers regarding how the plaintiff was positioned in the vehicle as well as other records and treatment. A copy of the report is annexed ('PFS14').
It is anticipated that it will be necessary to call ambulance officers to give evidence on the notes. The officers were based in Tasmania and as far as I am aware the witnesses still reside in Tasmania.
Mr Deuble's evidence will be relevant to his liability but not to Mrs Penna's quantum of damage. The police officers who attended the scene, and the police accident investigator, will be in a position to give relevant and admissible evidence about this issue.
Mr Forbes-Smith states in his affidavit that the police virtual crash report identifies four police officers, including the officer who prepared the crash analysis report and attended the scene of the accident, the officer who inspected the vehicles and the officer who took photographs.[14]
[14] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020 [21].
As to the second issue, that is whether Mrs Penna was wearing a seat belt or wearing a seat belt correctly at the time of the collision, when the reports of the police, ambulance and fire service, together with the hospital notes, are examined, it is difficult to assess with any certainty the number and identity of the witnesses who could give admissible evidence about whether Mrs Penna was wearing a seat belt at the time of the collision.
Not all of the four police officers who attended the scene of the collision may be able to give admissible evidence about whether Mrs Penna was wearing a seat belt at the time the collision occurred. It is clear from the crash analysis report and the ambulance officer's report that although the police were first on the scene, the police crash investigator, Senior Constable Kelly Cordwell, who is also the author of the crash analysis report, did not arrive at the scene of the accident until after Mrs Penna had been taken to hospital. Mrs Penna was attended to by ambulance officers at the site of the accident at 10.05 am, loaded into the ambulance at 10.27 am, and arrived at the Royal Hobart Hospital at 11.15 am.[15] In the virtual crash report, it is noted that the crash occurred on 4 April 2017 at 9.40 am,[16] and Senior Constable Cordwell arrived at the scene of the accident at 12.27 pm.[17]
[15] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS14, page 130.
[16] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS9, page 74.
[17] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS12, page 91.
It appears from the Tasmanian Fire Service report that officers from the service who attended the scene removed the rear passenger door immediately behind the driver's seat so that Mrs Penna could be loaded into the ambulance to be taken to the hospital. The Tasmanian Fire Service report indicates that fire officers arrived at the scene of the accident at 9.53 am and removed a single person from a vehicle, but the report otherwise contains little information as to how that was carried out, other than to note that cutting and spreading equipment was used.[18]
[18] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS13, pages 120 ‑ 121.
As to whether Mrs Penna was wearing a seat belt at the time of the collision, or wearing a seat belt correctly, the reports of the officers who attended the scene or investigated the circumstances of the accident reveal little specific information about this issue, and the limited information contained in the reports that goes to this issue is, in some respects, conflicting.
Consequently, it is difficult for this court, in the absence of any witness statements, to make any reliable assessment of how many potential witnesses could be called on behalf of either party to give admissible evidence in respect of this issue. In particular:
(1)Senior Constable Cordwell in her report states that, at the time of the collision, Mrs Penna was seated in the rear as she had a broken leg and was stretched across the back seat, and was not restrained by a seat belt.[19]
[19] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS12, page 89.
(2)Constable Jenny Carlisle who attended the scene spoke to all three drivers. In an abridged note, it is stated that (she observed at the scene of the accident) Mr Penna was out of the vehicle and sitting in the rear of another vehicle, receiving first aid. Mrs Penna was the rear passenger of the Kia, bleeding from the head, and unconscious in the rear footwell of the vehicle, and Mr Penna had stated that Mrs Penna had been lying on the back seat of the car because she had a broken leg.[20]
[20] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS12, page 109.
(3)On 22 April 2017, Mr Penna participated in a telephone recorded interview. During the interview he said:[21]
[21] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS12, pages 105 ‑ 106.
(a)Mrs Penna had broken her right ankle and had spent four days in the Burnie Hospital before being released on 29 March 2017;
(b)(immediately following the accident) he pulled himself up from the dashboard and got out by the passenger door;
(c)he opened the back door to see his wife with her head doubled over. She was having difficulty breathing;
(d)he lifted her head back;
(e)she was sitting behind the driver still on the seat but she was unconscious; and
(f)Mr Penna does not remember where his wife's seat belt was. He commented, 'I'm not real sure if I took it off her'.
(4)An examination of the vehicle (the Kia) driven by Mr Penna revealed that the right seat belt had been cut and had retracted back into the reel. As a result, the vehicle examiner was not able to examine the belt for burn marks or signs of wear. The vehicle examination also revealed that the rear right hand door had been cut from the vehicle, and was resting on the roadway to the rear of the vehicle.[22]
(5)The Tasmanian ambulance report simply notes that it is unknown if Mrs Penna was restrained at the time of the motor vehicle accident.[23]
[22] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS12, page 96.
[23] Affidavit of Peter Forbes‑Smith affirmed on 23 September 2020, Attachment PFS14, page 126.
In the absence of any witness statements that address this issue, the court cannot speculate as to how many of the officers who attended the scene could give relevant evidence about whether Mrs Penna was wearing a seat belt, and, if so, in what manner. For example, there may be a reason why the seat belt located on the right rear passenger door was cut, which reason is unrelated to whether or not Mrs Penna was wearing a seat belt at the time of the collision.

It is noted, however, that there appears to be some contemporaneous medical evidence that indicates Mrs Penna was wearing a seat belt at the time of the collision. In the medical notes of Royal Hobart Hospital, it is noted that on 5 April 2017 under the heading, 'Clinical Details', 'Marked seatbelt bruise'.[24] There is another note in the medical progress notes on 7 April 2017 about whether bruising across the right hip line and across the abdomen and right arm was seat belt related.[25] There is another similar note in the medical notes on 18 April 2017,[26] and on the hospital transfer form.[27]
[24] Affidavit of Donna Irene Percy sworn 17 December 2020, Annexure DP7, page 199.
[25] Affidavit of Donna Irene Percy sworn 17 December 2020, Annexure DP7, page 208.
[26] Affidavit of Donna Irene Percy sworn 17 December 2020, Annexure DP7, page 211.
[27] Affidavit of Donna Irene Percy sworn 17 December 2020, Annexure DP7, page 215.
As counsel for Mrs Penna points out, the fire service report, the ambulance report and the hospital records are business records that are typically tendered without the authors being called to give evidence, unless the court otherwise orders.[28] However, it may be necessary to call some of the persons who made notes in the hospital records to give opinion evidence about the extent of bruising to Mrs Penna's abdomen, and the possible causes of the bruising.
[28] Evidence Act 1906 (WA) s 79C(2a) and (2b); Cavill v The State of Western Australia [2008] WASCA 108 [209].
In any event, the nature of the issue as to whether Mrs Penna was or was not wearing a seat belt correctly at the time the collision occurred is a very discreet issue in respect of which any of the evidence of any officers who attended the scene of the accident, or made notes in the hospital records, would likely be short and could be given by audio‑visual link.
As to other witnesses, Mr Deuble's lawyers have indicated that his insurers may obtain an expert opinion from an engineer based in Sydney. If so, Mrs Penna will likely obtain an opinion from a crash reconstruction expert based in Western Australia. Mrs Penna has also consulted interstate expert medico legal witnesses, Dr Stephen Buckley, who is a rehabilitation physician, and the Lighthouse Health Group. These experts are based in Sydney but regularly travel to Perth. Consequently, irrespective of where the trial is held, this factor is neutral, because if these experts are called, they will have to travel to give evidence.
As to the quantum of Mrs Penna's claim of damage, it is noted that Mrs Penna's claim is significantly large. In her synopsis of damages, a claim is made for an amount of $6,437,950.23, plus an indemnity for some items, which include reimbursement to the Motor Accident Insurance Board for accident related medical expenses. That is, the total amount claimed is exclusive of any amounts that will have to be repaid to the Board. However, of the amount of $6,437,950.23, an amount totalling $347,983.71 is claimed for past and future gratuitous services.
It appears that almost all, if not all, of the relevant witnesses who can give evidence as to the quantum of damage claimed by Mrs Penna are based in Western Australia. This is because Mrs Penna was transferred to Western Australia while still in a comatose state, nine days after the collision, and did not return to live at her home until 16 months after the accident. Because of the extent of her injuries, disabilities, future care and treatment needs, there are a relatively large number of Western Australian-based witnesses who are intended to be called to give evidence on her behalf, which evidence will be relevant to the quantum of damage.
These witnesses include Mrs Penna's two children, four of her friends, therapists who have treated her, which include a neurologist, two occupational therapists, two physiotherapists, two speech pathologists, her occupational therapist case manager, her treating general practitioner, and her service coordinator at Enable WA. It is also intended that three expert medico legal witnesses be called to give evidence about Mrs Penna's injuries, disabilities, prognosis, future care and treatment requirements and costs, which expert witnesses include a neuropsychologist, occupational therapist and rehabilitation physician.
Irrespective of the forum of the trial, there will be a number of witnesses who will either be required to travel to give evidence in person or to give their evidence by way of audio‑visual link.
Consequently, leaving aside Mr and Mrs Penna, the balance of convenience of all of the possible witnesses who could give relevant and admissible evidence in the action is evenly weighted.

Mrs Penna's circumstances

The fact that Mr and Mrs Penna reside in Western Australia is not only a relevant factor in itself, but it is also relevant that Mrs Penna suffers from disabilities as a result of the motor vehicle accident, which are factors that affect her capacity to give evidence, and must be taken into account.
I accept it would be very difficult for Mrs Penna to adequately give her evidence by audio‑visual link. In addition, I accept that because of the ongoing day‑to‑day support and care that Mrs Penna requires, together with the importance of maintaining her rehabilitation regime, she will incur significant costs (which would not be otherwise incurred by an able‑bodied person who does not require ongoing care) if she is required to travel to Tasmania from Western Australia to give evidence.
Counsel on behalf of Mrs Penna argues that Mrs Penna cannot give evidence by video link because she has well-documented communication difficulties, due to her cognitive issues and dysarthria (slurred speech), which has reduced her speech intelligibility. It is also argued that her evidence is too important to her case to risk giving evidence by video link.
If it were the case that Mrs Penna did not have significant and severe cognitive deficits, and communication difficulties, it would be difficult to maintain a position that a party to a personal injury claim could not give their evidence by audio‑visual link. This is because, particularly in 2020, with the necessary restrictions brought about by COVID‑19, including the requirement of all persons to socially distance, it has not been uncommon for a party to give contested evidence by audio‑visual link. It is, however, well‑known that, on occasions, all courts have experienced difficulties in the quality of the sound of audio‑visual links, which rely upon the internet.
Given that Mr Deuble has yet to file a defence to the action, discovery is incomplete, and decisions are yet to be made as to expert evidence, Mrs Penna's action is unlikely to be tried in 2021, irrespective of whether the action is tried in Western Australia or Tasmania. Consequently, the restrictions on parties and witnesses giving evidence implemented in courts because of COVID‑19 may be over by the time the action is tried.
Counsel on behalf of Mr Deuble put a submission that there is little evidence before the court that Mrs Penna would have difficulty giving her evidence by audio‑visual link. I do not agree.
Having regularly utilised audio‑visual links in court proceedings throughout 2020, during COVID‑19, it is clear that, on occasions, the audibility of the audio is variable to the point that, on occasions, audio‑visual links have been abandoned because of the poor quality of either sound or vision and audio (telephone) links engaged. In a matter where only submissions are being put on behalf of the party and no evidence is called, the use of an audio link usually creates no disadvantage. However, where evidence is to be called, and that evidence is contested, a poor quality audio‑visual link usually results in an adjournment of proceedings.
I accept that Mrs Penna has speech and auditory processing issues, which may make it difficult for her to understand questions that are put to her, and for her answers to be clearly understood. This could place her at a particular disadvantage if she were to give evidence by way of audio‑visual link.
Mrs Penna's lawyer, Donna Irene Percy, in her affidavit, states that she has observed Mrs Penna's slowed and slurred speech pattern.[29] Ms Percy points out that Mrs Penna's cognition and speech deficits are well‑described in the medical reports, which means that she may require extra time (when being questioned) to ensure she is understood, and she understands questions put to her, as well as time to formulate and articulate her answers.[30]
[29] Affidavit of Donna Irene Percy sworn 17 December 2020 [19].
[30] Affidavit of Donna Irene Percy sworn 17 December 2020 [18].
In an occupational therapy report annexed to the affidavit of Ms Percy, the author of the report states:[31]
[31] Affidavit of Donna Irene Percy sworn 17 December 2020, Annexure DP2, pages 151 ‑ 152.
Ms Penna evidences dysarthria which impacts her ability to effectively communicate verbally. This is very frustrating for her, as she identifies herself as very social. Ms Penna was able to effectively make herself understood during the course of the three hour assessment, though frequently required repetition of her speech in order to be understood due to reduced fluency.
…
From observation and interaction with Ms Penna's during the assessment, it is evident that Ms Penna continues to exhibit the following impairments in cognitive function;
•Executive dysfunction;
•Memory deficits in visual and auditory working memory;
•Impairment in higher level auditory processing;
•Deficits in motor planning;
•Impulsivity;
•Reduced insight into her functional impairment which impedes her ability to put in place measures that support her own personal safety when engaged in functional activities; and
•Reduced ability to put in place compensatory strategies to ameliorate the effects of these deficits, in particular memory
When regard is had to the assessment made of Mrs Penna's disabilities by her occupational therapist, it appears that if the quality of sound in an audio‑visual link is not crystal clear, this could pose a particular difficulty for her in giving her evidence. This is because Mrs Penna might find it not only difficult to articulate answers to questions clearly, but also find it difficult to clearly understand questions put to her.
If an order is made to transfer the action, I accept that Mrs Penna will need to travel to Tasmania to give evidence. This will be a significant physical and financial undertaking for her. Because of her coordination disorder and unsteady and staggering walking ability, together with her double vision, she is a constant risk of suffering falls. Whilst this risk is constant and could occur at any time in Western Australia, if she was to suffer a serious fall in Tasmania there could be significant costs incurred in evacuating her to Western Australia.
In addition, Mrs Penna receives weekly physiotherapy, speech therapy and occupational therapy. Travelling to Tasmania will cause those therapies to be disrupted and may be detrimental to her ongoing recovery, unless she is able to undertake those therapies in Tasmania during the trial.
Unfortunately, since the accident Mr Penna has been unable to drive. After the accident he developed a brain tumour and, although he has recovered, he has been required to relinquish his driver's licence. Mr and Mrs Penna do not know anyone in Tasmania who could assist them during a trial. Mr and Mrs Penna have family support in Perth as their son lives in Perth and their daughter Alyce (Mrs Penna's limited administrator) lives in Bunbury.
Travel to Tasmania will add to Mrs Penna's expenses in this litigation. Mrs Penna's lawyers have obtained a quote for flights, accommodation, car hire, and care support for the anticipated duration of a trial, the cost of which is in the region of $74,000.00 to $81,000.00.[32] The cost of travel alone to Mrs Penna is likely to be a significant financial impost.
[32] Affidavit of Donna Irene Percy sworn 17 December 2020 [33] ‑ [40] and summary in subsequent [33].
Mr and Mrs Penna's financial circumstances are finite. They have between $1.2 ‑ $1.6 million in a self-managed superannuation fund to live on in their retirement.[33] I accept that unless Mrs Penna's action is successful, this money will be quickly absorbed because of Mrs Penna's ongoing needs.
[33] Affidavit of Kym Walter Penna sworn 12 December 2020 [6].
These factors must be given significant weight. There is nothing before the court upon which it could be said that any other person who is likely to give evidence in the action, including Mr Deuble, would have any of the difficulties that Mrs Penna has in travelling.

Conclusion

Having weighed all of the various factors, I have reached the conclusion that, on balance, the interests of justice are that the case should remain in the District Court of Western Australia.
This is substantially because of the personal circumstances of Mrs Penna, in particular, because of her profound disabilities, she would encounter significant difficulties if the trial of the action is heard in Tasmania. Her disabilities are a factor that must be given more weight than the convenience of other witnesses. Her circumstances outweigh the inconvenience to Mr Deuble and his witnesses in attending a trial in Western Australia, the fact that the collision occurred in Tasmania, and that a court in Western Australia will be required to determine the matter in accordance with the law of Tasmania.
For these reasons, the application for transfer of the action to Tasmania should be dismissed.
I will hear the parties further as to the orders that should be made, including orders as to costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
10 FEBRUARY 2021