Martin-Lowe v Sellens

[2016] NSWDC 229

District Court

New South Wales

Medium Neutral Citation:

Martin-Lowe v Sellens [2016] NSWDC 229

Hearing dates:

15 August 2016

Date of orders:

15 August 2016

Decision date:

15 August 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Notice of motion filed 12 July 2016 is dismissed

 

Matter placed in not ready list

 

The matter is not to be further mentioned before the Registrar or a Judge in less than one year

 Each party to pay his or her own costs of the motion

Catchwords:

PRACTICE AND PROCEDURE – Application to strike out proceedings for want of dispatch – Assessment of damages only – Claim by the plaintiff, currently aged 7, for mental harm following death of his father in motor vehicle accident – No MAS assessment of plaintiff – Tutor (mother) does not want plaintiff to be examined by independent medical assessor – Application dismissed – Alternative courses of action should be pursued.

Legislation Cited:

Civil Procedure Act 2005

Category:

Procedural and other rulings

Parties:

Noah Martin-Lowe (Plaintiff/Respondent)
Wayne Sellens (Defendant/Applicant)

Representation:

No appearance (Plaintiff/Respondent)
Mr Maxwell (Defendant/Applicant)

File Number(s):

2013/367926

Publication restriction:

No

Judgment

1. HIS HONOUR: This is an application by the defendant that the proceedings be dismissed for a lack of progress. According to the notice of motion filed on 12 July 2016, the dismissal is sought pursuant to s 61(3)(a) of the Civil Procedure Act 2005. That provision is that if a party to whom a direction has been given by the Court fails to comply with the direction, the Court may dismiss the proceedings either generally or in relation to a particular cause of action or in relation to the whole or part of any particular claim. In the alternative, the defendant, by its solicitor, today seeks that the proceedings by dismissed pursuant to UCPR 12.7.

2. The plaintiff was born on 17 July 2009. He is seven years old. The proceedings concern the death of his father, Travis Martin, who died on 13 September 2009 due to injuries sustained in a motor vehicle accident which occurred on 9 September 2009. According to the statement of claim, the accident happened about 7.20pm, when the deceased, who was driving a Nissan Utility, came into collision with a Freightliner Prime Mover being driven in the opposite direction by the defendant. According to the statement of claim, the defendant had crossed onto the incorrect side of the carriageway, causing the head-on collision which lead to Mr Martin's death.

3. The proceedings were commenced by a statement of claim filed on 5 December 2013. The defendant appeared on 25 February 2014. Plea numbered 2 in the defence says this:

"In respect of the allegations made in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the statement of claim, the defendant says that he breached his duty of care in respect of the use of or operation of the vehicle, such breach causing the death of Mr Travis Martin."

In other words, liability is admitted and the matter is one of quantum only. The plaintiff's claim is not a claim under the Compensation to Relatives Act, but is a claim for what was once called "nervous shock", and ought now be described as "mental harm".

4. The proceedings have been inactive because of a failure on behalf of the plaintiff to obtain a medical assessment from the Motor Accidents Medical Assessment Service. There is, however, some medical evidence before the Court which has previously been provided to the Medical Assessment Service (MAS). Before me is a report of Ms Seschelle Goodman, a registered psychologist, under whose care the plaintiff went on 14 October 2013. According to Ms Goodman's undated report, she initially saw the plaintiff on 10 October 2013 and received this information:

"Noah's mother has concerns for his coping skills around the loss of his father. In addition, there were concerns of how much Noah has been exposed to the emotional turmoil of his brother and mother. Further, Noah was displaying emotional outbursts, which had intensified over the previous twelve months."

The report goes on to say this:

"Consultations in early 2014 identify:

- Noah maintains, fittingly, the DSM IV criteria for 'bereavement disorder with generalised anxiety'.

- Although Noah seems to have more of an acceptance of his father's loss, he maintains frequent talk of visions and play with his father, which is obviously distressing to both himself and his mother and brother.

- Noah is obviously old enough now to understand the concept of having a father and Noah's loss of his father will no doubt be an ongoing contributing factor to any/all of Noah's difficulties throughout his life.

- In addition, although there is no confirmed diagnosis from a Paediatrician, Noah has demonstrated significant traits that would indicate that it is likely that he may be on the higher end of the Autism Spectrum. This would be equivalent to 'Asperger's', if referring to previous DSM-IV Mental Health Descriptors[.]"

On p 3 of the report there is a heading, "Summary of progress and outcome during treatment". The final sentences of that assessment are these:

"Given the significance of the trauma that his death has had on the entire family, and as a result of the circumstances in which his father was taken, it is likely that similarly to his brother Laben, Noah will be left to feel extremely angry and betrayed by the fact his father was taken away from him and his family. I have no doubt that this will cause Noah exacerbated distress throughout his life."

5. Ms Goodman was unclear as to the prognosis. I do know from material supplied to me that the plaintiff's brother Laben has been diagnosed with post traumatic stress disorder and major depressive disorder, and a certificate issued by the MAS certifies a 22% whole person impairment. The plaintiff's mother and tutor, Dana Lowe, has also been diagnosed with post traumatic stress disorder and a major depressive disorder, and she has been certified similarly as suffering from a 15% whole person impairment. The MAS has not been able to provide a certificate concerning the plaintiff because his tutor, his mother, does not wish him to be examined by an independent medical specialist and wished the matter to be dealt with "on the papers", which appears to have been unacceptable to both the defendant and the MAS.

6. In connection with the current application, the tutor has failed to provide the plaintiff's solicitors with any instructions. However, it is clear to the Court that the young plaintiff may have a good cause of action and his cause of action ought not be stymied because his tutor, who is mentally affected by the death of her late husband and the father of her children, is so protective of the plaintiff that she does not wish him to travel, for example, to Sydney from their home on the Gold Coast to undergo medical assessment. In my view, the proceedings ought remain on foot until such time as the plaintiff himself is a bit more mature and can indicate for himself whether he wishes to undergo the medical assessment I which both his mother and his brother have participated.

7. Furthermore, it appears to me that the solicitors currently acting for the plaintiff ought consider whether they should discuss the matter with the tutor and ascertain whether somebody less disinterested in the proceedings might become the plaintiff's tutor and give him some advice that clearly his mother is not in a position to provide to him, as it appears to me from reading the documentation before me. For those reasons, the notice of motion filed on 12 July 2016 is dismissed. I order each party to pay his or her own costs for the notice of motion. I place the matter in the not ready list. The matter is not to be further mentioned before the registrar or a judge in less than one year from today.

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Decision last updated: 27 September 2016