Parker v MID Plumbing Services Pty Ltd

[2017] NSWSC 1060

Supreme Court

New South Wales

Medium Neutral Citation:	Harley Thomas Parker v M.I.D. Plumbing Services Pty Ltd [2017] NSWSC 1060
Hearing dates:	25 July 2017
Date of orders:	14 August 2017
Decision date:	14 August 2017
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) District Court proceedings No 2016/00335081 be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). (2) The pleadings as filed in the District Court are to stand as pleadings in this Court. (3) The first defendant is to bear its own costs application. (4) The costs of the application of the plaintiff and the second defendant are to be costs in the cause.
Catchwords:	No issue of principle – transfer to the Supreme Court pursuant s140 of the Civil Procedure Act
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 140
Cases Cited:	Cubrilo v Veljovic [2015] NSWSC 367 Younes v QIC Ltd t/as Westpoint Blacktown [2012] NSWSC 451 Mead v Kerney [2012] NSWCA 215
Category:	Procedural and other rulings
Parties:	Harley Thomas Parker (Plaintiff) M.I.D Plumbing Services Pty Ltd (First Defendant) Amel Suljic t/as AS Plumbing (Second Defendant)
Representation:	Counsel: Mr D Trainor (Plaintiff) Mr C Purdy (First Defendant)   Solicitors: McNally Jones Staff (Plaintiff) Colin Biggers & Paisley (First Defendant) Curwoods (Second Defendant)
File Number(s):	2017/214448
Publication restriction:	No

Judgment

1. This is an application made by way of Summons dated 13 July 2017 for transfer of these proceedings from the District Court to this Court pursuant to the Civil Procedure Act 2005 (NSW) s 140.

2. The proceedings concern a serious right forearm injury to a then 21 year old apprentice plumber sustained on 27 May 2014. The injury has led to ongoing complications with the use of his right arm including the need to undergo a number of reparative surgeries. As at October 2016, the plaintiff was assessed as having been left with ulnar nerve dysfunction and the need for further surgery to improve his ongoing pain, altered sensation and twitching fingers.

3. It is clear he is not able to recommence work as an apprentice plumber. There is also strong evidence of a current debilitating reactive major depression.

4. Proceedings were commenced on 9 November 2016 by way of Statement of Claim in the District Court. The defendants both deny liability. Neither defendant is an employer of the plaintiff. The first defendant is a labour hire company pleaded to have been the “host employer” and in control of the worksite. The second defendant was another contractor assisting with the works. It is alleged that the second defendant fell onto the plaintiff causing the laceration whilst they were working with sharp corrugated iron.

5. Both defendants have declined to concede extended jurisdiction to the District Court in the Defences that they have filed. It was affirmed at the hearing of this application that neither defendant consented to the District Court’s jurisdiction being extended past its jurisdictional limit of $750,000. The second defendant by email on 24 July 2017 notified its consent to the application for removal of the proceedings to this Court on the basis that their costs of this application are ordered as costs in the cause.

Evidence of the plaintiff in support of the application

6. The application was supported by an affidavit of the solicitor for the plaintiff, David Thomas Trainor. The affidavit annexed a number of relevant medical reports as follows:

1. Dr Reddy, Plastic Surgeon dated 14 October 2016;

2. Dr G J McGroder, Consultant Occupational Health Physician dated 14 March 2017;

3. Sampson F Roberts, Consultant Forensic Psychiatrist dated 27 March 2017;

4. Dr Robert Lewin, Psychiatrist dated 12 May 2017 (a report served on behalf of the defendant);

7. As well as a Statement of Particulars, the Statement of Claim and a final Statement of Particulars dated 7 June 2017, some correspondence between the parties confirming the level of the loss of earning capacity claimed and confirming that the plaintiff had his employment terminated on 13 April 2017 was also annexed. A request to consent to extended jurisdiction of the District Court was refused by the second defendant in a letter dated 3 May 2017.

8. The affidavit deposed to the plaintiff’s claim for damages. Mr Trainor assessed the claim, excluding non-economic loss as totalling $1.7 million. It was acknowledged that if there was a compromise on the future loss of earning capacity claim to reflect a 50% residual earning capacity, the plaintiff’s overall claim for damages would still total over $1 million exclusive of any allowance for non-economic loss.

9. At the hearing Mr Trainor tendered a report of Peter Tingle, Psychologist dated 22 August 2016. This report concluded that the plaintiff at that time was clinically depressed and posed a suicide risk. It recorded that the then current work environment (light duties) was a significant contributor to the feelings of hopelessness and uselessness and that the plaintiff felt that there was little future for him. It referred to a lack support from his employer over the preceding two years combined with a lack of direction and alternate job options which had all contributed to his current sense of hopelessness about life. Mr Trainor advised that there has been recent commencement of ongoing psychiatric treatment.

10. Mr Trainor, an experienced personal injury lawyer, provided a further Schedule of Plaintiff’s Damages assessing future loss of earning capacity based on comparable earnings figures provided by the first defendant in the sum of $960 per week. This led to a modified overall assessment of $991,490 not including non-economic loss or future out of pocket expenses. (A 50% reduction of the future loss of earning capacity to reflect retained earning capacity would reduce this assessment figure to $610,000 plus non-economic loss and future out of pocket expenses.)

Evidence of the first defendant in opposition to the application

11. Counsel for the first defendant tendered a report of the Vocational Capacity Centre authored by Vocational Psychologist O J Burchett dated 22 May 2017 which arises from an interview with the plaintiff on 11 April 2017. This report is stated to involve an “exploration of the relevant aspects of personal, educational and employment backgrounds and a psychometric evaluation of intellectual skills and personal preferences”. It is evident the author of the report is not a psychiatrist, was not assessing mental illness or mental health issues nor was the reporter assessing the physical status of the plaintiff’s damaged arm. The report emphasizes positive aspects of the plaintiff’s personality and intelligence and then provides a number of theoretical job matches. Whilst it refers to the injuries and mood problems and sleep disturbance as being “matters that the plaintiff outlined to him”, it in no way evaluates them or their effect on the plaintiff’s overall physical and mental health.

12. At the time this assessment took place, 11 April 2017, the plaintiff was employed but was discharged from that job a couple of days after this assessment. Mr Burchett’s conclusion notes some specific options that the plaintiff “could consider” including Sales Representative, Program or Project Administrator, Purchasing Officer, Accounts Clerk or ICT Sales Assistant and that with further training consideration could be given to Quantity Surveyor or ICT Customer Support Officer. The important qualification to the whole report is contained at the end where it states: “This assessment was undertaken from a psychological perspective. Note was taken of Mr Parker’s self-reported physical limitations. However, evaluation of those limitations is beyond this assessor’s area of expertise.”

13. A feature of this report relevant to the question of assessment of damages was the report of mood alteration characterised by difficulty concentrating, being easily distracted, and having thoughts “all the time” about suicide or self-harm, and noting that he continues to harm himself by applying a cigarette lighter or inflicting cuts.

Relevant legal principles

14. Section 140 of the Civil Procedure Act 2005 (NSW) provides relevantly as follows:

140   Transfer of proceedings to higher court

(1)   The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.

…

(3)   Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:

(a)   in the case of a motor accident claim or a 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.

15. The requirement pursuant to subsection 3 is that these proceedings should not be transferred to the Supreme Court under this section unless the Court is satisfied that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court. The jurisdictional limit of the District Court for these proceedings, given that I am informed it should not be treated as a workplace injury damages claim as the employer is not sued, is $750,000.

16. In Cubrilo v Veljovic [2015] NSWSC 367, his Honour Justice Campbell of this Court examined the way in which authorities dealt with the word “likely” in the context of this provision of the Civil Procedure Act 2005 (NSW). As noted by Bellew J in Younes v QIC Ltd t/as Westpoint Blacktown [2012] NSWSC 451, the process of deciding likelihood in this context is “impressionistic”, and that the exercise of jurisdiction does have to be done in more or less a summary fashion. As stated by Campbell J at [9]:

Returning to the discussion of likeliness; it does not mean more probably than not; and it requires the Court to make, as I have said, in a summary way, an assessment of whether there is a real chance of the plaintiff getting more than $750,000 in damages, if successful. That must depend upon the prospect that her favourable evidence will be accepted in preference to the defendant's evidence. Now in that regard, I think all one can say is that there is material before me which persuades me that there will be evidence available at the trial which, if accepted, would justify an award of damages in excess of $750,000.

Submissions and argument

17. The plaintiff’s primary position is that the likely damages for the plaintiff will easily exceed $750,000. It is clear that the injury to this young man was a very significant one and that he has been and remains unable to return to work as a plumber. It is also clear his current psychiatric state (which was also present and reported on in 2016) is a significant obstacle to employment.

18. On the physical incapacity side, Dr Reddy, Plastic Surgeon, sets out in his report of 14 October 2016 ongoing concerns regarding the function of the plaintiff’s right arm. The plaintiff has had three distinct surgeries on his right arm. The first was to repair multiple flexor tendons, muscle bellies and the arterial injury. In February 2015 there was a scar revision and ulnar nerve neurolysis to try to deal with altered sensation and twitching in the ring and little fingers. This was followed by further surgery in January 2016 to attempt again to remedy ongoing pathology related to the ulnar nerve. This involved a neurolysis procedure with excision of associated scar tissue and a nerve wrap procedure. Whilst there was improvement following the surgery and some improvement in functional capacity, there were still ongoing problems with tremors, pain, and ongoing difficulty with rehabilitation. Further surgery was outlined but a decision was made to refrain from further surgery for the moment.

19. The report of Dr McGroder, Consultant Occupational Health Physician who assessed the plaintiff in March 2017 noted that he is permanently unfit for his pre-injury duties as a plumber because of a combination of functional disability, as well as from a safety point of view. Dr McGroder noted that there was in train a work trial with a building company and a proposal to do a course in building and construction.

20. Of particular concern are the reports of Dr Roberts and Dr Lewin, both Psychiatrists who both assessed the plaintiff in March 2017. Dr Roberts refers to the presentation of major depressive disorder consequent upon the work injury arising out of the chronic pain and physical limitations produced by the physical injury, compounded by the likelihood that the plaintiff will be unable to resume work as a plumber despite having completed over 3 years of his apprenticeship. It was observed by Dr Roberts that in this context, the plaintiff’s future employment prospects are in doubt and “he currently finds himself performing to what he considers to represent a sub-optimal level in an unfamiliar role for which he has no training or experience”. It was noted that had been prescribed antidepressant medication with which he has persisted for approximately 4 months without apparent benefit. Dr Roberts diagnosed a persisting depressive illness largely unchanged over a long period of time, with an enduring degree of suicidality and ongoing self-harm behaviour. Dr Roberts emphasised the need for pharmacological treatment regime review, supervision by a specialist consultant psychiatrist, and ongoing psychological therapy fortnightly.

21. The report of Dr Lewin included a thorough social history. He observed that the plaintiff has gained a large amount of weight since the injury. This was attributed to reduced physical activity, and tendency to eat comfort food. Dr Lewin noted reduced mood, irritability, sadness, and feeling dispirited. There is also a sense of lethargy, labile emotions, frequent feelings of hopelessness and that life is not worth living. Dr Lewin assessed evidence of a major depressive episode and made observations that the plaintiff’s lack of motivation, his pessimism and lethargy, lack of confidence in his own judgement, feelings of hopelessness and low self-esteem are likely to impact on his capacity to work. Dr Lewin referred to the need for the plaintiff to undergo some occupational rehabilitation and some retraining, and that the condition is treatable and “with appropriate evidence based treatment, there is a high likelihood of significant improvement and/or full remission”.

22. Counsel for the first defendant placed significant emphasis on this conclusion and the prognosis contained in the conclusion to the report of Dr Roberts:

It is probable that with revision of his pharmacological treatment regime and oversight of treatment by a specialist consultant psychiatrist, Mr Parker’s depressive symptomatology will diminish. It is likely however that until such time as a viable career trajectory can be identified and he is progressing towards it, he will remain affected by his depressive condition. It is expected that with an evidence based approach to treatment, Mr Parker’s condition will improve over a 6-month period to permit his participation in retraining.

23. This positive prognosis was submitted by counsel for the first defendant to evidence that there was a real prospect of the plaintiff being able to be redeployed in appropriate remunerative employment and thus any claim for future loss of earning capacity would be very limited and may well vanish. It was argued that Mr Burchett’s report identified jobs for which the plaintiff would be suitable and therefore there was no reduced earning capacity.

24. It was argued that consequently there was a real prospect that the overall damages that the plaintiff would be awarded if his claim was successful would not reach $750,000.

25. In reply to these assertions, the solicitor for the plaintiff drew to my attention the decision of the Court of Appeal in Mead v Kerney [2012] NSWCA 215 and argued that Mr Burchett’s report was of limited assistance in closing the future loss of earning capacity issue as the defendants’ evidentiary onus extends to identifying not just the theoretically suitable work but available work which the plaintiff can in fact do. He argued that none of the evidence precluded a large potential award of damages for future loss of earning capacity.

Determination

26. Mr Burchett’s report only deals with the issue of what jobs are theoretically open to a person with a particular capacity. It does not deal at all with what work the plaintiff is in fact capable of performing now given his physical and psychiatric disabilities, when he would be capable of performing the jobs identified and whether the jobs identified are something which he will be capable given the fact that his psychiatric disabilities and physical incapacities are far from stable. It is salient to note that the injury was three years ago, and the plaintiff is still incompletely treated, and has already evidenced difficulty working in a position that is unsuitable to his skills and damaging to his self-esteem.

27. Whilst it is too early in the preparation of the case to see clearly where the evidence will fall at trial, on the evidence currently available, there is a real prospect that the plaintiff would be awarded a large sum for loss of future earning capacity. There is still a lot to be done to treat both his physical and psychiatric disabilities. The psychiatric reports point to a potential positive outcome so that the plaintiff can commence vocational rehabilitation, not necessarily to commence full time or even part time employment in the short term.

28. There has been a large sum paid to date by the workers compensation insurer, and it can be anticipated that is likely to continue for at least a year given the state of disability of the plaintiff as at March/April 2017. There is a claim for future treatment which, while it might seem generous and probably needs some adjustment, is likely to include some years of regular counselling, psychiatric treatment and psychotropic medication at least.

29. The solicitor for the plaintiff did not specify a sum for non-economic loss and as is clear from my remarks above, the plaintiff’s rehabilitation is far from complete. He is a very young man who has suffered a life-changing, career- altering injury. There is evidence that this has significantly affected his enjoyment of life, his previous sporting pursuits, his overall health (with significant weight gain) his self-esteem and his mental health. He is likely to receive a large sum for non-economic loss of some hundreds of thousands of dollars.

30. Added to that needs to be the past out of pocket expenses and past economic loss, all of which needs to be repaid to the workers compensation insurer but still is required to be included in the assessment of damages. That sum amounts to some hundreds of thousands of dollars. (Although the claim in the plaintiff’s schedule of damages for past economic loss is $52,000, this is directed towards the differential wage loss based on comparable earnings supplied by the first defendant. It only identifies the sums that would be claimable by the plaintiff as differential wage loss).

31. Even if there is some retained earning capacity and even if psychiatric treatment is able to assist the plaintiff back to some work in a year or two, there is still a likelihood of a significant sum for future loss of earning capacity claim being awarded to the plaintiff. Adding past and future superannuation losses to this as well as an appropriate amount for future treatment for the prospect of further surgery and necessary treatment of his psychiatric and psychological condition, I am of the view that there will be evidence available at trial which, if accepted, would justify an award of damages in excess of $750,000.

26. I am satisfied that in the circumstances it is appropriate for the proceedings to be transferred to the Supreme Court.

Costs

33. The plaintiff submitted that the costs of the application should be paid by the first defendant as it had the option to consent to the orders which could then have been managed administratively without taking up court time for argument. It was submitted that submissions had to be prepared and there was a requirement on the part of the plaintiff to respond with affidavit evidence to the assertion made by the first defendant that the case was not worth more than $750,000.

34. On behalf of the first defendant it was submitted that the plaintiff’s legal representatives should have been aware of the possibility that the damages would exceed $750,000 when they reviewed the report of Dr Reddy dated 14 October 2016, together with the report of the Psychologist Mr Tingle, dated 22 August 2016. It was submitted that failure to see the potential of the case given those two reports meant that the proceedings were commenced in the wrong court.

35. Putting to one side the irony of that submission when viewed against the first defendant’s opposition to the plaintiff’s Summons, I am of the view that extensive argument on the merits of the application was required because of the position adopted by the first defendant.

36. Accordingly I am of the view that the first defendant should bear its own costs of the hearing of the application; and the costs of the application of the plaintiff and the second defendant should be costs in the cause.

Orders

1. District Court proceedings No 2016/00335081 be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

2. The pleadings as filed in the District Court are to stand as pleadings in this Court.

3. The first defendant is to bear its own costs of this application.

4. The costs of the plaintiff and the second defendant are to be costs in the cause.

**********

Decision last updated: 16 August 2017