Harmer v State of New South Wales
[2016] NSWSC 750
•09 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: Harmer v State of New South Wales [2016] NSWSC 750 Hearing dates: 6 June 2016 Decision date: 09 June 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Proceedings with case number 2015/200048 are transferred to the District Court of New South Wales, Sydney Registry.
(2) The parties have leave to approach the District Court Civil List Clerk to obtain a date for a Directions Hearing.
(3) The costs of the hearing before me are costs in the cause.Catchwords: PROCEDURE – transfer of proceedings from Supreme Court to District Court – claim for damages arising from personal injury – application of s 146(4) of the Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), ss 61, 146(4), 146(4)(a), 146(4)(b)Cases Cited: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 Category: Procedural and other rulings Parties: Paul Andrew Harmer (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
Solicitors:
G Hickey (Plaintiff)
D Stanton (Defendant)
Slater and Gordon Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)
File Number(s): 2015/200048
Judgment
Introduction
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This application for transfer of proceedings from this Court to the District Court of New South Wales, brought by way of notice of motion of Mr Harmer, the plaintiff, came before me in the Duty List on 6 June 2016. Reliance was ultimately placed by the plaintiff upon s 146(4)(a) and (b) of the Civil Procedure Act 2005 (NSW) (the Act). The section in its entirety is as follows:
146 Transfer of proceedings to lower court
(1) If the Supreme Court is satisfied, in relation to proceedings before it:
(a) that the proceedings could properly have been commenced in the District Court or the Local Court, and
(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,
the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires.
(2) If the District Court is satisfied, in relation to proceedings before it:
(a) that the proceedings could properly have been commenced in the Local Court, and
(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the Local Court,
the District Court may order that the proceedings, including any such cross-claim, be transferred to the Local Court.
(3) In determining:
(a) whether any proceedings could properly have been commenced in the lower court, or
(b) whether any cross-claim could properly have been brought in the lower court,
the higher court must have regard to the current limits of the lower court’s jurisdiction as if they had been the limits of that jurisdiction when the proceedings were commenced, or the cross-claim brought, in the higher court.
(4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or workplace injury damages claim:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.
(5) This section extends to proceedings that have been transferred to the Supreme Court or the District Court pursuant to a previous transfer order under Division 1.
(emphasis added)
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There was no dispute between the parties that this is a “claim for damages arising from personal injury” and “workplace injury damages claim” that attracts s 146(4) of the Act.
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The State of New South Wales, the defendant, resisted the motion on the basis that each of the legs of the subsection had been established by it. The defendant further submitted that, with regard to the general discretion to transfer contained in s 146(1) of the Act, that would surely be informed by its establishment of the two preconditions in s 146(4) of the Act, and I would decline to exercise it.
Background
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The substantive dispute between the parties may be stated succinctly.
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By way of a statement of claim filed in this Court on 8 July 2015, the plaintiff makes the following assertions. The plaintiff commenced work as a Police Officer on 16 November 1997, and was a Detective Senior Constable in the New South Wales Police Force by July 2010. During the performance of his duties as a police officer he was exposed to a number of distressing and gruesome incidents and experiences. As a result of that exposure, he has developed chronic post-traumatic stress disorder and a chronic major depressive disorder. He was discharged from the New South Wales Police Force as medically unfit on 20 September 2011. He claims that he is now incapable of working.
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The claim against the defendant is that it was negligent, in that it failed to have in place adequate systems to protect persons such as the plaintiff from the psychiatric illnesses that he has developed.
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By way of a defence filed on 20 July 2015, the defendant accepts that it owed a duty of care to the plaintiff. It disputes, however, that it at any stage breached that duty. I understand as well that there is a separate but related dispute about causation.
Submissions of the defendant
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In resistance to the order for transfer being made, counsel for the defendant asserted that, as a matter of simple arithmetic, one can see that the claim of the plaintiff is for over $1 million. That calculation was not disputed by counsel for the plaintiff. Accordingly, there was no dispute before me that the first leg of resistance to the transfer contained in s 146(4)(a)(i) of the Act has been established.
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Counsel for the defendant also submitted that part of the second leg in s 146(4)(a)(ii) has been established, in that the case involves complex legal issues, because there will indeed be difficult and complex questions of law (and mixed law and fact) that will arise in the hearing.
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The first of those was said to be determination of the precise scope of the duty of care owed by the defendant to the plaintiff. I was reminded by counsel for the defendant of the importance of the proper determination of that question, and the difficulties that can arise in ensuring that the determination is neither too broad nor too narrow.
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As well as that, I was invited to the decision of the High Court of Australia in New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486. It was said that, properly understood, the claim of the defendant seeks to extend the principles upon which that case was decided. That would give rise, it was said, to undoubted complexity.
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Finally, it was submitted that the question of causation – in the sense of whether or not the psychiatric illnesses were caused not by exposure to the alleged distressing events, but rather by the negligence of the defendant in failing to ameliorate the effects of those events – would not be free of complexity either.
Submissions of counsel for the plaintiff
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Counsel for the plaintiff submitted that there is nothing complex about this matter; that questions of assessment of the duty of care owed by an employer (to use that term broadly) to persons engaged in dangerous or difficult or distressing occupations are by no means unusual; that in truth his case does not and will not derogate from anything said by the High Court; and that there is nothing complex about the question of causation in this case.
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In short he submitted that, far from generating legal complexity, this case is of a kind that has been determined by judges of the District Court on countless occasions in the eight decades or so since the concept of negligence entered the common law of Australia.
Determination
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Turning to my determination, one knows from experience that determining the true duty of care in any case in which negligence is alleged is not an automatic or facile task for a trial judge. Nor is determining whether an “employer” has breached any such duty to an “employee” in circumstances in which the occupation is inherently liable to expose persons to harrowing experiences.
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Furthermore, I accept that discernment and application of the law about duty of care, breach of duty, and causation – derived, as it is, partly from the common law that developed before 2002, partly from the Civil Liability Act 2002 (NSW), and partly from judicial illumination of that Act by the New South Wales Court of Appeal and the High Court in the 14 years since its commencement – is not a simplistic task either.
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Having said that, I do not regard this particular case as being overly complex. As I have said, the plaintiff claims in short that, as a result of a number of distressing incidents that occurred while he was working as a police officer, he has become severely psychiatrically injured, and that the defendant was negligent by permitting that to happen. That summary reveals no great legal complexity. To my mind, there is no reason why such a case cannot be determined in the District Court of New South Wales rather than this Court.
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In short, I am not satisfied that the portion of the second leg of s 146(4)(a) relied upon by the defendant – namely, that the case involves complex legal issues – has been established.
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In those circumstances, the statute mandates that the matter must be transferred, and I propose so to order.
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In light of that determination of mine, there is no need for me to consider the general discretion to transfer contained in s 61 of the Act.
Costs
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As for costs, the original proposal contained in the notice of motion of the plaintiff was that costs should be costs in the cause. The order for transfer having been firmly resisted by the defendant, counsel for the plaintiff submitted that the plaintiff should have his costs of the motion.
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Counsel for the defendant submitted that, even if the motion were to succeed, the defendant should have its costs. That was for the simple reason that, if the submissions of the plaintiff were to be accepted, there is no reason why the proceedings could not have commenced in the District Court, thereby obviating entirely the need for the hearing before me. It was expressly conceded by counsel for the plaintiff that it would have been open to the plaintiff to commence the proceedings in the District Court originally.
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I consider that there is force in the submission of counsel for the defendant, but only to the extent that the plaintiff, successful though he has been on the motion, should not have his costs of it. Seeking to balance the countervailing factors to do with costs, I propose to adopt the original position of the plaintiff: the costs of the motion should be costs in the cause.
Orders
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For logistical reasons, I have altered slightly the order proposed in the notice of motion of the plaintiff intended to advance the matter in the District Court.
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I make the following orders:
Proceedings with case number 2015/200048 are transferred to the District Court of New South Wales, Sydney Registry.
The parties have leave to approach the District Court Civil List Clerk to obtain a date for a Directions Hearing.
The costs of the hearing before me are costs in the cause.
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Decision last updated: 09 June 2016
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