Milaki v Dam

[2019] NSWDC 241

District Court

New South Wales

Medium Neutral Citation:	Milaki v Dam [2019] NSWDC 241
Hearing dates:	5 April 2019
Date of orders:	10 April 2019
Decision date:	10 April 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s notice of motion filed on 20 March 2019 granted. (2) Plaintiff’s notice of motion filed on 2 April 2019 dismissed. (3) Proceedings dismissed. (4) Plaintiff to pay defendant’s costs, with liberty to apply. (5) Exhibits retained for 28 days.
Catchwords:	PRACTICE AND PROCEDURE - defendant’s application for dismissal of proceedings pursuant to s 109(3)(b) Motor Accident Compensation Act 1999 (NSW) – application by plaintiff for leave to continue proceedings – no issue of principle
Legislation Cited:	Civil Liability Act 2002 (NSW), s 15B Motor Accidents Compensation Act 1999 (NSW), ss 103, 109, 134 and 141B
Cases Cited:	Brierley v Ellis [2014] NSWCA 230 Dijakovic v Perez [2015] NSWCA 174 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 McConachie v Pack [2004] NSWCA 148 Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 Miller v Galderisi [2009] NSWCA 353 Sampco v Wurth [2015] NSWCA 117 Sinclair v Darwich [2010] NSWCA 195
Category:	Procedural and other rulings
Parties:	Plaintiff: Najiha Milaki Defendant: Thi Xuyen Dam
Representation:	Counsel: Plaintiff: Mr C Stewart Defendant: Mr J Guihot   Solicitors: Plaintiff: Harrow Legal Defendant: Moray & Agnew
File Number(s):	2019/50944
Publication restriction:	None

Judgment

The applications before the court

1. The plaintiff, by notice of motion filed on 2 April 2019, seeks leave pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) (“the Act”) to maintain these proceedings, which were commenced on 15 February 2019.

2. The defendant, by notice of motion filed on 20 March 2019 (and thus first in time), seeks orders that these proceedings be dismissed.

3. The evidence in these competing applications consists of affidavits sworn by the parties’ solicitors. In the case of the plaintiff, this created an evidentiary problem which is set out in more detail below.

4. Although the issue of whether a full and satisfactory explanation was adverted to in the defendant’s opening submissions, I was not addressed on this point by either party and have confined my reasons to the sole issue in dispute, namely whether the total damages of all kinds likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 of the Act as at the date of the relevant motor vehicle accident.

5. It is agreed by the parties that the amount in question is $123,000. The plaintiff must establish that her past and future out of pocket expenses and past and future home care would exceed that sum. The plaintiff is not entitled to general damages as her injuries fall below the threshold and she is not entitled to wage loss because at all relevant times she has been a full-time carer for her six children (one of whom was born after the plaintiff’s accident). There is no claim for future wage loss on the basis that the plaintiff may return to the work force in the appreciable future.

Background to the applications

6. The plaintiff came to Australia with her husband as a migrant in 2003, at which time she was 20 years old. She gave birth to five children and was a full-time homemaker.

7. On 21 December 2014, the plaintiff was driving her car, with all five children as passengers, along Cabramatta Road in Cabramatta, Sydney. There were two lanes turning right but the defendant’s car came out of its lane and pushed the plaintiff’s car into an electricity pole. The airbags were deployed. The plaintiff managed to get herself and the youngest child out of the car and the other children were able to get out of the car themselves. The plaintiff and three of her children were taken by ambulance to hospital but released a few hours later and referred to the family general practitioner.

8. The plaintiff suffered injuries to her neck, right shoulder, right hand/wrist and back. She had bruises all over her body and was distressed not only by the accident but by concern for her five children. She was unable to perform household chores because of her pain and distress. Her husband either stopped work entirely (according to statements the plaintiff made to medical practitioners) or reduced his working week to 1 – 2 days a week for the following year (following which he increased to 3 – 5 days) according to particulars provided, because the plaintiff’s need for assistance was so great. The plaintiff’s sister, who had four children of her own, also provided assistance, although the degree of assistance is the subject of inconsistent evidence.

9. The plaintiff’s medical records relating to her treatment up to 2016 are scant, and these records stop entirely in mid-2016. I particularly note:

1. The plaintiff saw her general practitioner, who arranged for X-rays and sent her to a psychologist, with whom she had 8 sessions to 23 December 2015 according to the printout of s 83 expenses dated 5 April 2019 (Exhibit B). She has not seen her general practitioner since 24 May 2016 (Exhibit B). The plaintiff’s general practitioner has not provided a report, but copies of the plaintiff’s medical attendance records are set out in Annexure A at pp 65 – 91 and these can be seen (at p.91) to stop in 2016. Apart from the 2016 date on the last page, these records are almost completely illegible due to the scrawled handwriting and poor quality of reproduction, and it is not possible to make out what prescriptions and pain management advice were provided over this period.

2. The plaintiff was referred to an orthopaedic surgeon, Dr Maniam (who has not provided a report) although her last appointment with him was on 17 August 2016 (Exhibit B).

3. The plaintiff had a dozen visits to the physiotherapist up to 30 December 2015, although she told Dr Breit (Exhibit 2) that this did not give her any great benefit. According to the s 83 expenses list in Exhibit B she also had two hydrotherapy sessions in April 2015.

4. No receipts from the chemist for prescriptions or over-the-counter painkillers were provided, but the plaintiff told her doctors that she was taking a range of prescription drugs including Panadeine Forte and Mobic.

10. The reasons for this lack of medical evidence are not due to the plaintiff failing to seek legal advice promptly, as she immediately consulted a firm of solicitors, Thomas Booler & Associates. They arranged for an occupational therapist to see her on 2 February 2015, a mere six weeks after the accident. The occupational therapist provided an extensive report and in her conclusions recommended 10 hours a week for domestic assistance, 2 hours a day for a “combination of personal hygiene and grooming with domestic duties” (Exhibit A, p. 147), physiotherapy twice weekly and psychological assistance for the plaintiff and all five children. However, the occupational therapist noted, in her concluding remarks, that “the severity is very difficult to assess considering frustrations around pain and functional limitations” but did note that:

“I would hope that Mrs Malika’s need for assistance could improve significantly in the future as her treatments optimised through analgesia and psychological methods.” (Exhibit A, p. 148)

11. The claim form was sent on 17 February 2015 and breach of duty of care was admitted on 24 February 2015.

12. On 3 September 2015, at the instigation of her solicitors, the plaintiff had a consultation with Dr Lee, an orthopaedic surgeon (Exhibit A, p. 74). She was pregnant with her sixth child at the time. Dr Lee noted that her prognosis was “uncertain”, adding that “I do expect improvement but because she is currently pregnant and is not taking any tablets, the progress has been stalled (Exhibit A, p. 77), adding that her pregnancy may adversely affect her back problem. Dr Lee did not see any x-rays (Exhibit A, p. 76) and does not appear to have seen any notes or other reports of any kind, although he noted she was going to physiotherapy. He assessed her at 16% whole person impairment (WPI).

13. These two reports from 2015 – the occupational therapist and Dr Lee – are the only medico-legal reports tendered on the plaintiff’s behalf. No updates or reports from treating doctors are provided. This is a considerable difficulty for the plaintiff, as the only medical evidence after this date, namely the defendant’s medico-legal reports, consists of statements that the plaintiff has entirely recovered.

14. The plaintiff does, however, rely upon the medical evidence set out in a series of MAS reports. The plaintiff applied for an assessment of her WPI on 25 November 2015. She was heavily pregnant at the time. On 23 March 2016 Assessor Long assessed these at 13%. Assessor Rees assessed her psychiatric condition at 5%. However, the Review Panel reduced the plaintiff’s assessment to 8%, which is below the non-economic loss threshold. The plaintiff has tendered these assessment reports and while they do go some way towards filling the gap, the difficulty is that there was no new medical evidence for the second assessment, where the principal preoccupation was a reconsideration of the previous assessment having regard to the impact of the plaintiff’s pregnancy during the first assessment.

15. On 14 June 2017 there was a premature application for CARS general assessment (Exhibit 1, p. 19) which was dismissed on 13 October 2017. As this was premature, time did not cease running. The parties agree that the limitation period expired on 21 December 2017. However, no fresh medical evidence was served.

16. The only information I have about the plaintiff’s medical condition comes from the defendant’s medico-legal reports, which I set out in chronological order.

1. Dr Robert Breit had the advantage of seeing the plaintiff on 14 December 2015 (Exhibit 2, p. 13) and 23 October 2017 (Exhibit 2, p. 19 as well as providing answers to a report of Dr Alameddine of 23 October 2018, which he did in a third report dated 22 November 2018 (Exhibit 2, p. 26). This gives him a continuity of consultation which is of assistance in terms of assessing the plaintiff’s need for past and future care. (This reference to Dr Alameddine, who is described as a general practitioner who sees the plaintiff “apparently on a very regular basis” is troubling, as no report from this doctor was tendered; nor was there any reference to Dr Alameddine during either party’s submissions.) In his first report, Dr Breit says he is “mystified” that Dr Lee “could carry out a valid assessment of her lumbar-sacral spine on someone who is significantly pregnant with associated back pain” as restricted movement is to be expected in such a case (Exhibit 2, p. 16). He considered that her condition would not stabilise until after her pregnancy. In his second report, he is critical of the first MAS report being carried out while the plaintiff was heavily pregnant and expressed the view that the plaintiff’s “gross abnormal illness behaviour” meant her complaints were “totally unreasonable” and that no home care or assistance was required (Exhibit 2, pp 23 – 24).

2. Dr Grahame Vickery, a psychiatrist, saw the plaintiff on 15 December 2015. He notes the plaintiff told him “I can’t do the housework as well as before” (Exhibit 2, p. 32) and that she was anxious when driving. She was psychologically able to resume home duties and there was no period during which she would not have been able to attend to these following the accident. She had no psychiatric disabilities.

3. Dr Pierides (who saw the plaintiff on 6 February 2018) states that the plaintiff’s “complaints and disabilities are not reasonable” in that her soft tissue injuries would have resolved 8 weeks after the accident (Exhibit A, p. 220). Dr Pierides notes the plaintiff’s statement that her husband had returned to work now, working 2 – 3 days a week” and that her sister “also helps in the home”. However, he states that there is no relationship between her current complaints and the accident, that she does not require any future treatment and that there is “no need for her to have any future domestic assistance because of injuries sustained in the subject accident” (Exhibit A, p. 222). While I note the warnings given in Sampco v Wurth [2015] NSWCA 117 at [83] about medical practitioners expressing views as to “hourly calculations in relation to home care”, I do not read that warning as preventing a medical practitioner from stating that the plaintiff’s general health means that he or she does not require any home care at all because there has been a complete recovery.

4. In a subsequent report, Dr Pierides refers to a report from Dr Alameddine dated 23 October 2018 (Exhibit 2, p. 11). This is not listed in the affidavit of Mr Husaini of 1 April 2019, nor is it included in the documents attached to his affidavit. Dr Pierides notes that Dr Alameddine refers to musculoligamentous strain to the lumbar sacral region associated with a mild scoliosis. Dr Perides repeats his view that there was no evidence of any injury of significance and that the scoliosis was pre-existing, and that the plaintiff “requires no restrictions of any sort in her domestic or work activities” or ongoing treatment (Exhibit 2, p. 11). I note that while the plaintiff tendered, and relies upon, the first report from Dr Pierides, the plaintiff did not tender either this second report or, more importantly, the report from Dr Alameddine.

17. I have been careful, when considering the above medical evidence, not only to give it little weight (as I must look at the plaintiff’s medical evidence at its highest), but to bear in mind the warnings the Court of Appeal has given about the dangers of reading too much into medical records and medico-legal reports. Unfortunately, however, the plaintiff, who bears the onus of proof, has no evidence of her own. Doing the best I can to make out what her general practitioner says from these reports, even those opinions are of little or no help.

18. It is not necessary to set out the rest of the history of events as contained in the affidavits, as the parties have made no submissions in relation to a full and satisfactory explanation, and I formally note my finding to the effect that this part of s 109 of the Act is satisfied. The remaining chronology of note is the plaintiff’s application for CARS General Assessment of 5 July 2018 (Exhibit 1, p. 30), following which a CARS certificate was issued on 15 February 2019.

The relevant legislation

19. Section 109 Motor Accidents Compensation Act 1999 (NSW) provides:

“109 Time limitations on commencement of court proceedings

(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person--the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

20. The principal question is whether the plaintiff would get over the threshold in relation to past and/or future home care. Section 141B Motor Accidents Compensation Act 1999 (NSW) provides:

“141B Maximum amount of damages for provision of certain attendant care services

(1) Compensation, included in an award of damages, for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award--that quarter, or

(ii) in respect of the whole or any part of any other quarter--the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.

(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.”

21. A claim is also brought in relation to the plaintiff’s difficulties in looking after the five children in her care at the time of the accident (the parties agreed that the child born after the accident did not form part of this equation). Section 15B Civil Liability Act 2002 (NSW) provides:

“15B Damages for loss of capacity to provide domestic services

(1) Definitions

In this section:

“assisted care”, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously):

(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),

(b) if the dependant is a minor (but without limiting paragraph (a))--any care that is provided to the dependant by a person other than the claimant where:

(i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of “dependants” in this subsection, adoption or otherwise), and

(ii) the care includes the provision of accommodation to the dependant.

“dependants”, in relation to a claimant, means:

(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises:

(i) the person to whom the claimant is legally married (including a husband or wife of the claimant),

(ii) a de facto partner of the claimant,

Note: “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv) any other person who is a member of the claimant’s household, and

(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.

“gratuitous domestic services” means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

(2) When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of “dependants” in subsection (1)--the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note: Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

(3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2) (c) (ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may:

(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2) (c) (i), disregard the week if assisted care was (or will be) provided during that week, and

(b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2) (c) (ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period,

but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total.

(4) Determination of amount of damages

The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved.

(5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court:

(a) may only award damages for that loss in accordance with the provisions of this section, and

(b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.

(6) Circumstances when damages may not be awarded

The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.

(8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that):

(a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and

(b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants.

(9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and

(b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act.

(10) Damages may not be awarded if they can be recovered as damages for attendant care services

Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and

(b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide.

(11) Determining value of gratuitous domestic services

In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:

(a) the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and

(c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.”

Statements by the plaintiff, her husband and sister

22. The affidavit in support of this application was sworn by the solicitor for the plaintiff. Appended to it were three statements (by the plaintiff, her husband and her sister) which had been provided to the MAS assessors. This meant that they were not before the court for cross-examination.

23. This is not an uncommon situation, nor is it uncommon for an opponent in such circumstances to take no objection to the tender of such statements. Difficulties only arise in cases such as the present, where the defendant wishes to cross-examine the plaintiff and/or her witnesses but is not able to do so because there is no affidavit before the court requiring cross-examination.

24. Statements were tendered without objection in Brierley v Ellis [2014] NSWCA 230. The result was that the statements became evidence upon which the first instance judge was entitled to rely. The correct course for the defendant to take would have been to object to the tender of the statements unless the witnesses were made available for cross-examination, as Meagher JA (with whom Basten and Gleeson JJA agreed) stated:

“[20] At the commencement of the hearing before the primary judge each of those affidavits was read and its annexures tendered without objection (White 21-26). Counsel for the respondent then indicated that he wished to cross-examine the applicant (White 26N). It was pointed out that the applicant had not sworn an affidavit (White 27J). Counsel for the respondent then stated that he had not objected to the tender of the three declarations upon the understanding that the applicant would be available for cross-examination (White 27S). Accepting that correctly to record the position, the primary judge said that she proposed to reject the declarations as evidence of the facts asserted in them (White 28E, 29F, 30B). In the face of that foreshadowed ruling, counsel for the applicant said that he would make the applicant available for cross-examination (White 30D).

[21] As events turned out, that did not occur. There was a short adjournment. After that adjournment the primary judge indicated that she would commence afresh the task of taking the evidence and in that process deal with any objections then made (White 31H). Each party read the same affidavits and all annexures were tendered (White 31G-P, 34V-35T). Significantly, having regard to what had occurred earlier, counsel for the respondent did not object to the tender of the declarations as evidence of the truth of their contents. Indeed, he tendered copies of those declarations in his case as attachments to one of Ms Fiodoroff’s affidavits. Nor did he seek to cross-examine the applicant or Mr Govan. In the result, it was not necessary for counsel for the applicant to call him to affirm the truth of the contents of the three declarations and he was not cross-examined about them. Nor was Mr Govan challenged as to his evidence of what had occurred on 7 June and 6 October 2010.

Principles relevant to admissibility of, and weight to be given to, statutory declarations

[22] Notwithstanding that the statutory declarations were hearsay evidence of what the applicant did and thought, they were tendered to prove the existence of the facts they stated. They were not objected to and were admitted without limitation. Having regard to the exchanges which preceded their admission, it was plain that the declarations were relied upon as evidence of the facts they stated and that, in the absence of objection, the applicant’s counsel had refrained from adducing direct evidence from the applicant to prove those facts. In the circumstances, the declarations were able to be used and relied upon “to prove the facts stated” in them: per Gibbs J in Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 at 153. To the extent that the primary judge’s reasons are to be understood as saying otherwise (White 79R, 80G), or that it might have been “unfair” to the respondent to have regard to them as evidence (White 81N), they would not correctly record the evidentiary status of the declarations. However, notwithstanding that these observations were made, the primary judge did proceed on the basis that the declarations were evidence to which she must have regard.

[23] The question which then arose concerned the weight which that evidence should be given. That also is a question of fact: see Metropolitan Railway Co v Jackson (1877) 3 App Cas 193. Whereas the question whether evidence is capable of justifying a particular conclusion is a question of law, if there is such evidence it is for the trier of fact “to decide as to its weight and value”: per Lord O’Hagan at 202.

[24] The fact that evidence is unable to be tested by cross-examination may provide a reason to discount the weight that should be given to it. As Mahoney JA observed in Clyne v Law Society of New South Wales (Court of Appeal (NSW), 4 September 1987, unrep):

“The fact that a witness has not been cross-examined has conventionally been seen, and properly seen, as a reason why the witness’ evidence should be taken with reserve. In Braithwaite v Kerns 34 Beav 202, Romilly MR, in giving leave for the use of an affidavit by a person who, by reason of paralysis, was unable and incapable to attend and be cross-examined, said: ‘I must allow it to be read, and must judge of it. But I pay little attention to the affidavit of a person who has not, when required, submitted to a cross-examination.’

Each case must, of course, be weighed on its merits and in its context. But experience has shown that it is proper to treat with considerable reserve evidence, or the inferences from evidence, which has not been subjected to cross-examination.”

[25] How were these principles to be applied in this case? When the evidence was tendered the respondent did not object to its being admitted to prove the existence of the facts stated. If the respondent had wanted to cross-examine the applicant he could have done so, either by objecting to its tender as hearsay, so as to require the evidence to be led in admissible form, or by consenting to its tender, but only on condition that the applicant was made available for cross-examination. The respondent took neither course. At the same time, considering what had earlier occurred, the applicant’s counsel could have put the matter beyond doubt by calling him to give the evidence orally or at least to swear as to or affirm the truth of the contents of the declarations. In either case the applicant would then have been available for cross-examination.

[26] However, in view of what happened the applicant’s counsel was not required to take that course. There remained the risk that the evidence may not establish that the applicant had a sufficiently full and satisfactory explanation. But that risk was not one concerned with the admissibility or weight that the evidence should be given. It arose because of the nature of the question to which the evidence was directed and by reason of the fact that the applicant would ordinarily be the one best able to give evidence about it. In that circumstance any matter which called for explanation or further elaboration was likely to be determined on the basis that the applicant did not have further information which might assist his case: per Gleeson CJ in Russo v Aiello at [10], [11].

[27] The applicant was entitled to rely upon the declarations as evidence of the facts stated and the respondent could not submit that, because the applicant had not been cross-examined or made available for cross-examination, little weight should be given to that evidence. Had the respondent sought to challenge the evidence by cross-examination, he should have taken one or other of the steps referred to above.”

[Emphasis added]

25. In the present case, Mr Guihot objected to the tender, unless these witnesses were made available for cross-examination. He acknowledged that this would extend the time taken for the application and that an adjournment might be necessary.

26. Mr Stewart submitted that if the plaintiff and her deponents were required for cross-examination, notice should have been given. The first notice he had was at or shortly before the hearing.

27. The obligation for notice for a deponent to be cross-examined is one concerning which courts need to be flexible. If the plaintiff had sworn the affidavit and no prior notice had been given, that might have presented real difficulties. However, the likelihood that these witness statements would be challenged if the witnesses were not available for cross-examination (notwithstanding the fact that they had not sworn affidavits) would have been one that experienced personal injury practitioners would have been well aware of by reason of the observations of the Court of Appeal in Brierley v Ellis.

28. The issue could have been resolved by the calling of these witnesses and, if necessary, the adjournment of the application (on suitable costs penalties) so that they could attend. The proceedings were adjourned for an hour to enable the plaintiff’s legal representatives to consider their client’s options and they elected to proceed without these statements, which were then removed from the tender bundle. The result is that there is no evidence from the plaintiff, her husband and her sister.

29. It is not necessary for the plaintiff to give evidence in applications such as the present, as has been explained in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [55], where Brierly v Ellis is discussed. That is particularly the case here, because the plaintiff is not being called on to explain delay in her case. The question of the plaintiff’s chance of being awarded damages for past and/or future home care largely turns upon the medical evidence. However, in circumstances where the plaintiff’s claim for home care should be considered in light of the claim as pleaded and particularised, those particulars should be accepted in the absence of evidence upon which the plaintiff can be cross-examined as indicating the true nature of her claim.

30. The plaintiff provided particulars of her claim for home care as follows:

1. In her schedule of damages as at 9 April 2017, the plaintiff claimed for past care for 14 hours for 26 weeks and thereafter for 10 hours a week as well as 10 hours a week for inability to care for the six children (Exhibit A, p. 157). The figure for caring for the children is obviously wrong as it covers the whole period since the accident, so it could not be the same as the figure from 21 June 2015, the parties agree a claim cannot be made for the sixth child, and some allowance should be made for the plaintiff’s mobility problems resulting from her pregnancy. Nevertheless, a past claim of over $40,000 as at 2017 and totalling over $60,000 now appears to be made.

2. As to the claim of assistance by the plaintiff’s husband, I note the admissions made in answers to particulars that the plaintiff’s husband reduced his hours of work to 1 – 2 days in the first year and returned to working 3 – 5 days therafter.

3. The claim for future care contains some errors, in that it includes the sixth child and makes no allowance conformably with Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95, the relevant authority at the time. Nevertheless, a substantial claim of $300,000 - $400,000 could be made out. The period of 7 hours a week is consistent with the Statement of Particulars served in these proceedings.

31. The plaintiff’s past out of pockets are agreed at $7,872.45. The plaintiff’s future out of pockets were assessed in the Schedule of Damages at $10,000 and, in the absence of any more concrete figure being put to me, I propose to accept that sum.

32. It can be seen from the above that for the plaintiff to get over the threshold, she has to make out a claim for past home care in its entirety and some kind of token future home care claim, or some other variation of these figures, as she makes no past or future economic loss claim and cannot claim general damages.

The damages threshold

33. The predictive exercise in assessing the likely result of the plaintiff’s damages claim involves an assessment of the evidence upon which the plaintiff will rely at trial.

34. The predictive exercise has to take into account the fact that at trial, evidence can be adduced by the plaintiff and the care-givers so as to establish the need for and duration of domestic care and assistance provided. While the absence of the statements of the plaintiff and her two witnesses has some relevance to this, the real difficulty is the absence of medical support to demonstrate any ongoing problem.

35. The use of the word “must” in s 109 means that the relief sough must not be granted unless the court is satisfied as to both matters in relation to s 103(3)(a) and (b). The question is, in relation to s 103(3)(b) whether the plaintiff (who bears the onus) is “likely” to receive damages in excess of the threshold amount. “Likely” must mean “a real chance” or “a real prospect”, or that such may well be the situation: Sinclair v Darwich [2010] NSWCA 195 at [36].

33. In Dijakovic v Perez [2015] NSWCA 174 at [109], the Court of Appeal confirmed this in more precise terms as being a “substantial” chance:

“The primary judge was required under s 109(3)(b) to assess the likely result of damages if the claim succeeds. This involved a predictive exercise. It is well established that the term “likely” in s 109(3)(b) means a “real chance” or a “real prospect”: Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166 at [36]; Eades v Gunestepe at [10]. As Basten JA explained in Eades v Gunestepe at [10], the relevant shade of meaning of “likely” in the present context is conveyed by “the notion of a substantial, as distinct from a remote chance”: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 (Mason CJ).”

37. Mr Stewart drew my attention to the manner in which the Court of Appeal went on to say that the medical evidence should be evaluated (at [120]):

“In this Court, counsel for Mr Perez accepted that her Honour should have approached the threshold issue by reference to the claimant’s medical evidence, taken at its highest (tcpt, CA at 31, lines 37-46). On this basis, counsel accepted that the report of Dr Conrad of April 2014 concerning Mr Dijakovic’s work capacity, together with evidence of his earning capacity based on his wage as at the end of 2012, would have been sufficient to satisfy the threshold of likely damages (tcpt, CA at 33, line 32-36). That concession was properly made.”

38. Mr Stewart also warned me not to place any weight on the failure to meet the general damages threshold, as quite minor injuries (such as the violinist who loses the tip of a finger) can have devastating economic consequences.

39. I accept these submissions and for this reason treat the defendant’s medical reports with the degree of caution urged upon me by Mr Stewart. The problem is, however, that the plaintiff’s own medical evidence is so scant up to the end of 2015, as well as non-existent thereafter, that it is hard to see how the plaintiff could make out any claim for past care beyond that time, let alone any claim for future care.

40. It is not necessary for me to forecast with precision what damages the plaintiff would be likely to receive. In McConachie v Pack [2004] NSWCA 148, the Court of Appeal held that mathematical precision in the calculation of gratuitous domestic care services damages is impossible, and the question is largely one of impression (at [20]). However, I am satisfied that, conformably with the test set out in Dijakovic v Perez, the plaintiff would struggle to get to the threshold even for past care, and is unlikely to receive any claim for future home care at all.

41. Here, the additional domestic services, if any, are being provided by the plaintiff’s husband and sister. The plaintiff would be required at trial to satisfy the court of both the need for those services, and whether they were in fact provided in the past and would be foreseeably required to be provided by a commercial provider: Miller v Galderisi [2009] NSWCA 353 at [19] – [21]. Applying the test set out in Dijakovic v Perez, the plaintiff cannot achieve that on the scant medical evidence before me.

42. The plaintiff’s claim at best would be for past and future out of pockets totalling a figure under $20,000 and some kind of past home care and/or child care for a period of about a year after the accident, which claim would be unlikely to exceed $40,000. I accept the defendant’s submission that the likelihood of her receiving damages beyond the threshold is remote rather than a real chance.

43. I am therefore not satisfied that the total damages of all kinds likely to be awarded to the plaintiff would satisfy the threshold in s 109(3)(b). In those circumstances, the defendant’s notice of motion is granted and the proceedings, as well as the plaintiff’s notice of motion, are dismissed.

Orders

1. Defendant’s notice of motion filed on 20 March 2019 granted.

2. Plaintiff’s notice of motion filed on 2 April 2019 dismissed.

3. Proceedings dismissed.

4. Plaintiff to pay defendant’s costs, with liberty to apply.

5. Exhibits retained for 28 days.

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Decision last updated: 12 June 2019