Every v Osborne - [2012] NSWSC 1437

Supreme Court

New South Wales

Medium Neutral Citation: Every v Osborne [2012] NSWSC 1437
Hearing dates: 21 November 2012
Decision date: 21 November 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Summons dismissed,
2. Plaintiff to pay the Defendant's costs.

Catchwords: PROCEDURE - transfer proceedings from District Court - whether it was likely if successful the Plaintiff would receive damages in excess of District Court's jurisdiction - absence of evidence for particular heads of damage - relevance of procedural history to ultimate discretion - transfer refused
Legislation Cited: Civil Procedure Act 2005
Expert Witness Code
Uniform Civil Procedure Rules
Cases Cited: Johnstone v State of NSW [2006] NSWCA 105
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Younges v QIC Ltd trading as Westpoint Blacktown [2012] NSWSC 451
Category: Interlocutory applications
Parties: Sharon Every (Plaintiff)
Lamorna Osborne (Defendant)
Representation: Counsel:
R Chia (Plaintiff)
K Burke (Defendant)
Solicitors:
Brydens Law Office LP (Plaintiff)
Avant Law Pty Ltd (Defendant)

File Number(s): 2012/353494

Judgment

This is an application to transfer proceedings from the District Court to this Court. The proceedings commenced on 21 December 2011 and claim damages as a result of the negligence of the Plaintiff's general practitioner in prescribing an excessive dose of Epilim liquid. Breach of duty of care is an admitted.

The significant issues in any trial will be causation of loss and the measure of damages. The causation issue arises because at a relevant time the Plaintiff had a bariatric surgical procedure of a gastric reduction by a sleeve gastrectomy. That procedure removes about 85% of the stomach. According to a report obtained on behalf of the Defendant from gastroenterologist Dr Christopher Vickers, the frequency of the symptoms that the Plaintiff commenced to suffer and has continued to suffer are very high from that procedure. This is no doubt a live issue because one of the known side effects of Epilim is gastrointestinal problems and it might be readily inferred that if she was on an excessive dose for a period, as is admitted, those problems might magnify.

The proceedings in the District Court are fixed for hearing on 27 November 2012. The preparation for that hearing involved a timetable first of all being set on 28 March 2012. Under that timetable the Plaintiff was to complete service of medical and expert reports by 29 June 2012 and was to file and serve a final Rule 15 particulars by the same date.

At the time the Plaintiff filed the Statement of Claim she filed a Statement of Particulars which was fairly sparse in its detail concerning anything other than injuries and disabilities. It did, however, say under the heading Particulars of Loss of Income, that "due to the consequences of the Defendant's negligence the Plaintiff is now unable to return to work in any capacity." In relation to domestic assistance it said that the Plaintiff had been provided with domestic assistance and claimed accordingly.

In both cases further particulars were to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Every v Osborne

Details

AGLC: Every v Osborne [2012] NSWSC 1437
Case: [2012] NSWSC 1437
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the case of Every v Osborne, the plaintiff sought to transfer proceedings from the District Court to the Federal Circuit Court. The dispute arose from a motor vehicle accident, and the plaintiff sought compensation for damages sustained. The Federal Circuit Court was asked to determine whether the proceedings should be transferred based on the likelihood that the plaintiff would receive damages exceeding the District Court's jurisdictional limit.

The central legal issue was whether the plaintiff would likely receive damages in excess of the District Court's jurisdiction if successful. This required the court to consider the evidence presented regarding the plaintiff's claims, particularly the heads of damages that could potentially exceed the jurisdictional limit. The court also examined the procedural history of the case, including the evidence provided and the arguments made in the previous proceedings, to inform its discretion in deciding whether to transfer the case.

The court found that the plaintiff had not provided sufficient evidence to substantiate the particular heads of damage that would exceed the District Court's jurisdictional limit. The court concluded that the procedural history, including the lack of detailed evidence on specific damages, did not support a transfer. The court exercised its discretion and refused the application for transfer, finding that it was not likely the plaintiff would receive damages exceeding the District Court's jurisdiction. The court's decision was based on the absence of compelling evidence and the procedural context of the case.

The court ordered that the proceedings remain in the District Court. The plaintiff was advised to pursue the necessary evidence to substantiate their claims if they wished to re-apply for a transfer in the future. The decision underscored the importance of providing detailed evidence of potential damages when seeking a transfer based on jurisdictional limits.

Orders