McLoughlin v State of Queensland
[2015] QDC 50
•5 March 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
McLoughlin v State of Queensland [2015] QDC 50
PARTIES:
SYLVIA PATRICIA McLOUGHLIN
(plaintiff)v
STATE OF QUEENSLAND
(defendant)FILE NO/S:
2922/10
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
5 March 2015
DELIVERED AT:
Brisbane
HEARING DATE:
4 March 2015
JUDGE:
Reid DCJ
ORDER:
1. Order that the application for the adjournment of the trial be dismissed.
2. Order, pursuant to r 367 of UCPR, that the plaintiff be at liberty to conduct the trial of this action by telephone, from the defendant’s solicitors’ Melbourne office.
3. Order plaintiff pay the defendant’s costs of and incidental to the application.
CATCHWORDS:
APPLICATION FOR ADJOURNMENT – interests of justice – small claim – liability contested – significant number of costs orders potentially against the plaintiff – prior adjournment of trial – plaintiff’s alleged ill health – consideration of issues of management of court list – refusal of application – consequential orders in respect of the management of the trial
COUNSEL:
The plaintiff appeared in person
Mr Luchich for the defendant
SOLICITORS:
Corrs Chambers Westgarth for the defendant
The plaintiff was born on 22 March 1939 and claims in her claim and statement of claim of 12 October 2010 to have been injured on 21 October 2007. She alleges she was asked to leave Robina Hospital and that security guards, who were admittedly employed by the hospital, took hold of her arms to escort her from the hospital. She alleges they did so with unnecessary force, causing her to sprain her left ankle and suffer bruising to both of her arms. She says that she has suffered consequential post‑traumatic stress disorder and psychological harm.
In her pleadings she claims damages of $71,397 as follows:
Pain and suffering
$50,000
Past economic loss
$7,800
Future economic loss
$7,800
Griffiths v Kerkemeyer damages
$3,012
Medical expenses
$2,180
Special damages
$605
TOTAL
$71,397
The defendant alleges a different version of the incident. It alleges the plaintiff was intoxicated and belligerent when at the hospital. It is alleged her conduct placed the health of a patient, a friend it seems of the plaintiff, at some risk. Consequently it is said security officers were called to exclude the plaintiff from the hospital. It is said that this involved some light restraint, necessary to remove her, but that she suffered no injury and that their conduct was entirely reasonable. It is further alleged that she had a significant pre-existing medical history including a prior history of paranoid delusions and persecutory ideas and of significant physical problems. It is denied that the incident caused any further injury or any exacerbation of those injuries.
As a result of the plaintiff’s alleged non-compliance with the provisions of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the defendant, in September 2011, brought an application for orders that the plaintiff provide a list of documents and a statement of loss and damage. Ultimately a statement of loss and damage was filed on 26 September 2011 but it seems on its face to be grossly inadequate and does not comply with the requirements of UCPR. It is in part at least incomprehensible. It did claim damages of $83,970.86, in excess of that sought in the claim and statement of claim. A list of documents was also filed at that same time.
Consequent upon those documents being served, the application in respect of the provision of such documents was dismissed but costs were reserved. There seems to me to be a significant possibility that, ultimately, the plaintiff will be ordered to pay the costs of that application, but I need not determine that at this juncture. I merely note that is a risk the plaintiff faces.
The defendant’s then solicitor filed a further application on 9 November 2012 for an order that proceedings be stayed unless and until the plaintiff submitted to an independent medical examination by a psychiatrist. I made such an order on 7 December 2012. I also ordered that the plaintiff pay the defendant’s costs of the application but further ordered that recovery of those costs be stayed until determination of the action.
The defendant filed an amended defence on 26 August 2013. That pleading asserts that the plaintiff suffered no psychiatric disorder as a result of the hospital incident but alleges she suffered pre-existing chronic delusional disorder (personality type) of longstanding.
The parties eventually signed a request for trial date in about September 2013, almost six years after the incident the subject of the claim and almost three years after the commencement of the action. I note also that the signing of that request for trial date was now about 18 months ago.
In February 2014, the matter was listed for trial to commence on 1 September 2014. The plaintiff applied for an adjournment of the trial. That application came before Judge Martin SC DCJ on 29 August 2014, just prior to the trial. His Honour ordered that the trial be adjourned to a date to be fixed on the first three days available after 1 March 2015. Costs were reserved. His Honour did so, it seems, because material had been filed by the plaintiff that she could not be ready, physically or mentally, to conduct the trial at that time. I note again that it seems very possible that the plaintiff may ultimately be required to pay those costs which could be significant in view of the fact that the adjournment of the three day trial was made only just before the commencement of the trial. I say that in circumstances where it seems likely the defendant will assert that any conditions were longstanding and the application was filed very late, just before the trial.
It was then again set down for 3 days, commencing on 9 march 2015. The plaintiff on 27 February 2015, last Friday, filed an application returnable on 6 March 2015 (this Friday) to adjourn the trial until further order. The matter came before me yesterday, on 4 March, because I am the judge who was to hear the trial of the matter. I had contacted the parties with a view to obtaining agreement as to a bundle of documents on which the parties rely. When I was told that the application for an adjournment was listed for Friday, by agreement I relisted it for Wednesday.
The plaintiff, in her affidavit in support, really says nothing other than attaching a brief note from her general practitioner Dr Kurien. The doctor says:
“Sylvia McLoughlin, aged 75 years, has ongoing anxiety and PTSD. She has had a total hip replacement left side and right knee arthrodesis. She is still in a lot of pain and has restricted movements. She has been referred to the pain clinic and seeing an orthopaedic surgeon for her physical problems. She is currently unable to attend court.”
In such circumstances the affidavits of Ms Betts filed 12 August 2014 and by leave before me on Wednesday are of interest. She has been involved in the matter both with the defendant’s current solicitor and with the former solicitors with whom she then worked.
Material discloses that there is a DVD of security footage from the hospital. Counsel for the defendant told me during oral submissions that in his view it captured all of the events the subject of the action. The plaintiff indicated to me that there was some dispute about that. The extent to which it does capture such footage is of course unknown to me as I have not seen it, but it may well be of very significant assistance in determining the outcome of the matter.
I note also that as early as 6 July 2011 the plaintiff wrote to the defendant’s solicitors with respect to issues of non-compliance with her obligations under UCPR and said that:
“… (the) main factor (preventing her from complying with her obligations) is pain and fatigue inter alia.”
Ms Betts says that on 4 December 2012 the plaintiff disclosed a medical certificate of the plaintiff’s general practitioner which stated that she was unfit to travel to Brisbane to attend appointments because she:
“(i)was receiving treatment for PTSD and osteoarthritis of her left knee joint, and;
(ii)had a history of osteomyelitis in her left knee which flared up regularly with pain and swelling. On such occasions she requires a walking stick and antibiotics and has trouble with steps and walking any distance.”
The defendant obtained a report from a psychiatrist, Dr Prior, on 13 March 2013 following an independent medical examination.
On 13 August 2013 the plaintiff responded to Ms Betts’ enquiry as to when she might be available for a trial that she “would have to be a magician to answer that one”.
On 28 November 2013 the defendant’s solicitor received a letter from the plaintiff dated 25 May 2013, that is six months earlier, saying that after 24 March 2014 she had been in and out of hospital for two major operations and that the earliest she would be able to attend trial would be after 28 May 2014.
Subsequently on 13 February 2014 the plaintiff returned a request for trial date and nominated dates she would be available. As a result of that nomination it was set down to commence on 1 September 2014 but, as I previously advised, was adjourned by order of his Honour Judge Martin SC DCJ.
I have considered the attachments to the affidavits of Ms Betts filed 12 August 2013 and to the shorter affidavit sworn 13 March 2015 and filed by leave before me yesterday.
The exhibit to that shorter affidavit of 3 March is a diary note of Ms Betts concerning a phone conversation she had with the plaintiff’s GP.
It is in my view clear from that note and from the history of this matter I have recounted, but also from my discussion with the plaintiff by phone yesterday, when the issue of an adjournment of Monday’s trial was considered, that it is highly problematic whether the plaintiff will ever be in a position:
1. where she can attend a trial in Brisbane, or;
2. where she will be properly prepared for a trial, for example, by having made arrangements for doctors and witnesses to attend as is usual with such a trial.
In my view it is entirely inappropriate to adjourn Monday’s trial. In so concluding I have had regard to the following factors:
1. The plaintiff’s claim is a small one. She seeks only $71,397 damages in her statement of claim and the majority of that, $50,000, relates to general damages.
2. Liability is strenuously contested.
3. The plaintiff already has a costs order against her of 7 December 2012 and other orders of September 2011 and August 2014 have been made reserving costs in circumstances where it is at least possible, and perhaps likely, that she might be ordered to pay such costs.
4. The trial was previously set down 1 September 2014 but the hearing of that matter was adjourned on 29 August 2014 due to the plaintiff’s incapacities.
5. She initially signed a request for trial date, almost 18 months ago.
6. She has regularly relied on her ill health to explain her non-compliance with the UCPR or with the procedure in respect of conduct of personal injury matters, and in July 2014 and now again in March 2015 has relied on a very brief report of a GP without any evidence from her as to her disabilities or any compelling evidence as to when she might be better.
7. In the event that I were to again adjourn the trial I would almost inevitably order that she pay the costs, due to the very late application, and in circumstances where her alleged injuries are chronic and longstanding.
8. The plaintiff has herself filed no material as to her ability to pay costs orders but during oral submissions made it apparent that she is not in a position to meet an order that she pay costs thrown away by reason of the late adjournment of this trial.
9. The plaintiff has filed no material to indicate that she will at any or what stage be well enough to be able to conduct the trial.
10. The efficient allocation of resources of the court is adversely affected by Ms McLoughlin’s inability or unwillingness to bring this matter to trial. Such issues were considered by the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27. Such considerations assist me in forming the view that an adjournment in this case will be inappropriate.
I have however considered Ms McLoughlin’s health issues and have concluded it will be appropriate to order that she be able to conduct the trial by phone from Melbourne. I order that pursuant to rule 367 of UCPR that the plaintiff be at liberty to conduct the trial of this matter by phone from the defendant’s solicitor’s Melbourne office. That of course does not preclude her from coming to Brisbane if she wishes.
The parties have agreed that the evidence of medical practitioners including Dr O’Brien and Dr Ng, whom the plaintiff intends to rely on in this matter, can successfully give evidence by a telephone conference call.
I order the plaintiff pay the defendant’s costs of and incidental to her application.
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