Parmar v Campbell
[2023] ACTSC 281
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Parmar v Campbell |
Citation: | [2023] ACTSC 281 |
Hearing Date: | 9 October 2023 |
Decision Date: | 11 October 2023 |
Before: | Baker J |
Decision: | (1) The hearing listed on 30 October 2023 (with an estimate of four days) be vacated. (2) The matter is listed in the Registrar’s List at 10:15am on 17 October 2023. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – application to vacate hearing – personal injury claim arising out of motor vehicle accident – where plaintiff has suffered serious injuries in subsequent motor vehicle accident – whether further time is needed to distinguish between ongoing effects of first and second accidents – application granted |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Act 2004 (ACT) s 5A(2)(a) |
Cases Cited: | Baker v Whilloughby [1970] AC 467 Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 Hinchcliffe v Carter's Transport Australia Pty Ltd [2017] ACTSC 223 Leschke v Jeffs [1955] QWN 67 MM v Australian Capital Territory [2023] ACTSC 55 State Government Insurance Commission v Oakley (1990) 10 MVR 570; Aust Torts Reports 84–003 |
Texts Cited: | Sharn Hobill, “(4) Causation and Proof in Negligence” in Halsbury's Laws of Australia (LexisNexis, last updated 2 September 2022) Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (2021, LexisNexis, 5th ed) |
Parties: | Amandip Parmar ( Plaintiff) Jessica Campbell ( First Defendant) Insurance Australia Ltd t/a NRMA Insurance ( Second Defendant) |
Representation: | Counsel B Jones ( Plaintiff) O Dinkha ( First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) Moray & Agnew Lawyers ( First and Second Defendants) | |
File Number: | SC 468 of 2022 |
BAKER J:
Introduction
1․By application filed 29 September 2023, the plaintiff seeks an order that the hearing of these proceedings, which is currently listed from 30 October to 2 November 2023 be vacated.
2․The proceedings relate to a claim for damages arising out of a car accident (the subject accident) which occurred on 3 April 2019.
3․On 15 December 2022, the plaintiff was involved in a second car accident (the subsequent accident). The plaintiff sustained a traumatic brain injury in this car accident. She was unconscious for 23 days and suffered amnesia for 40 days.
4․The plaintiff seeks vacation of the hearing to enable her to proceed with her course of treatment, to allow her condition to stabilise, and to enable the parties to obtain expert evidence in relation to the damages arising from both the subject accident and the subsequent accident. In particular, the plaintiff contends that, at this time, it is difficult to disentangle the injuries, disabilities and restrictions arising from the subject accident with the injuries, disabilities and restrictions arising from the subsequent accident. The plaintiff submits that because the plaintiff’s condition is not stable, the Court cannot determine what loss will continue to flow in the future by reason of the subject accident as distinct from the subsequent accident.
5․The defendants oppose the vacation of the hearing date. The defendants note that the present proceedings were listed for hearing with the plaintiff’s consent in June 2023, which was more than six months after the second accident occurred. The defendants submit that the plaintiff’s legal representatives have not provided an adequate explanation for the plaintiff’s change in position. The defendants also submit that the plaintiff has not demonstrated that her condition is not sufficiently stable to justify vacation of the hearing date.
6․For the reasons outlined below, I have determined that it is in the interests of justice to vacate the hearing date.
Procedural history
7․The plaintiff commenced proceedings in respect of the subject accident by way of Statement of Claim filed on 29 November 2022.
8․In her Statement of Claim, the plaintiff particularised her injuries sustained in this accident as including injuries to her cervical spine; injuries to her ears and hearing issues; nausea, vomiting, constipation and reflux; pain, restriction of movement, numbness, tingling and tenderness in various parts of her body; reduction in sleep quality and quantity; muscle weakness; joint tightness and swelling; headaches and migraines; anxiety, nervousness, amaxophobia and difficulty concentrating; the need to cease IVF treatment and to take medication; side effects of analgesics; restricted capacity to undertake various activities, including recreation, household tasks and employment; and associated costs and requirements for treatment and assistance.
9․On 21 December 2022, the plaintiff’s solicitor advised the defendants’ solicitor that the plaintiff was in a coma in hospital after sustaining a traumatic brain injury in the subsequent motor vehicle accident. A hospital discharge summary indicates that the plaintiff suffered a traumatic brain injury, along with ocular trauma to both eyes, extensive facial trauma, and a closed fracture to the base of her skull. She also suffered from ventilator-associated pneumonia and drug-induced liver injury as a result of her hospitalisation. The hospital discharge summary records that the plaintiff underwent surgeries on 15 December, 21 December and 23 December 2022.
10․The plaintiff’s solicitor initially foreshadowed an intent to seek an adjournment to enable the plaintiff’s injuries from the subsequent accident to stabilise. However, on 15 February 2023, the plaintiff’s solicitor sent an email to the defendants’ solicitor advising that the plaintiff had instructed her legal representatives not to apply for a stay of proceedings. The proceedings therefore continued to progress.
11․The defendants filed a defence on 9 March 2023. In their defence, the defendants largely admit the particulars of negligence as pleaded against the first defendant but plead that the collision was caused equally by the negligence of the first defendant and of the plaintiff. The defendants deny that the plaintiff suffered, or will suffer, future economic loss as a result of the negligence of the first defendant. In the alternative, the defendants claim that any ongoing or future economic loss was caused by the subsequent accident, rather than the subject accident.
12․On 8 June 2023, the plaintiff filed a listing hearing questionnaire. In that questionnaire, the plaintiff confirmed that:
(i)All necessary medical examinations had taken place;
(ii)Other than refresher reports and/or reports in reply, no further medical examinations were required before the trial;
(iii)No further directions were necessary for the hearing; and
(iv)No further matters were considered relevant to the setting of the hearing date.
13․On 29 June 2023, Senior Deputy Registrar Gatehouse made orders by consent directing the parties to participate in a private mediation on or before 8 September 2023 and listing the proceedings for hearing on 30 October 2023 with an estimate of four days.
14․The parties participated in a mediation session on 31 August 2023, however, the proceedings were not resolved.
15․On 3 October 2023, the plaintiff’s solicitor served an unsealed copy of the present application on the defendants’ solicitor. On the same day, the defendants’ solicitor advised the plaintiff’s solicitor that the application was opposed.
Consideration
16․Both parties drew my attention to the decision of Mossop J in Hinchcliffe v Carter's Transport Australia Pty Ltd [2017] ACTSC 223 at [14] – [15], in which his Honour held that:
Courts will generally be sympathetic to the realities of personal injury litigation. Often that will involve changes of position necessitated by new information or changing circumstances. Where a proper explanation is provided and the other parties will have a fair opportunity to respond to new evidence without the need to vacate a hearing date, it will often be appropriate to permit additional evidence to be served notwithstanding prior directions of the Court.
Where such an indulgence is sought it is essential that the Court is fully informed of the reasons for the change of position, even where that involves confession of inadequacies in the conduct of the case on the part of the lawyers for the party. The aim of the process is the achievement of a fair trial rather than punishment for mistakes that might have been made during the course of preparation.
17․The hearing date was set at a time well after the occurrence of the subsequent accident. The plaintiff’s solicitors, acting on instructions, determined not to seek a stay of the present proceedings, but rather, to proceed to obtain a hearing date. In the hearing questionnaire, the plaintiff’s solicitor advised the Court that there were no issues relevant to the listing of the matter for trial.
18․The plaintiff’s legal representatives first sought vacation of the hearing date only a month before the matter was listed for trial. In the proceedings before me, the plaintiff’s counsel initially referred to the emergence of further details regarding the plaintiff’s condition, including the acquisition of an updated opinion from a neurologist addressing issues of disentanglement, and new details regarding proposed surgeries and surgical consultations as an explanation for the late application to vacate the hearing. However, as the defendant contended, none of the substance of that information was unknown at the time that the plaintiff’s lawyers consented to the listing of the proceedings for hearing.
19․Ultimately, the only explanation given for the plaintiff’s change in position was there had been a “reflection on the state of the evidence at a later stage”. In other words, it is apparent that, in the course of preparing for mediation and otherwise preparing for hearing, the plaintiff’s legal representatives realised that the plaintiff’s case could not fairly proceed until her injuries stabilised.
20․This explanation is unsatisfactory. There is a duty on practitioners appearing in this Court to carefully consider whether a matter is ready for hearing and to inform the Court of any reason why a hearing may not be able to proceed. Even more importantly, where, as here, that duty has not been complied with, practitioners must, as Mossop J held in Hinchcliffe, fully inform the court of the reasons for the change in position and frankly confess the inadequacies in their preparation. That did not occur in the present case.
21․Vacation of the hearing date at this late stage will occasion prejudice to the defendant. Prejudice will also be occasioned to other litigants before this Court, whose cases are delayed by reason of the failure of the plaintiff’s legal representatives to properly turn their minds to the readiness of the matter for hearing. As Black J said in In the matter of Felan's Fisheries Pty Limited [2017] NSWSC 1502 at [20]:
... however busy a list may be, and however many parties are in fact waiting for hearing dates, few of them are able to be ready for hearing when told, shortly before, that a hearing date has just become available. That is, of course, why the Court’s usual practice is to allocate hearing dates in advance so that parties may arrange their affairs accordingly.
22․Nonetheless, as the plaintiff’s counsel submitted, the plaintiff should not be penalised for the failures of her legal advisers. Ultimately, it is necessary to consider whether a fair trial will be possible if the matter proceeds to hearing on 30 October 2023: s 5A(2)(a) of the Court Procedures Act 2004 (ACT); MM v Australian Capital Territory [2023] ACTSC 55 at [5].
23․The determination of this question requires some consideration of how this Court will be required to approach the assessment of damages in circumstances where the subject accident may have been overtaken, to a degree, by the subsequent accident. In this respect, counsel for the defendants drew the Court’s attention to the discussion of this issue in Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (2021, LexisNexis, 5th ed) at [2.2.18] and [2.9.4] – [2.9.8]. The defendants’ counsel submitted that there are two possible approaches to the assessment of damages where a subsequent incident affects injuries sustained in an earlier incident:
(i)The second incident is disregarded, so that damages are assessed on the basis of the plaintiff’s projected condition as at the day immediately before the second incident; or
(ii)Damages are assessed taking into account the plaintiff’s actual position after the second incident.
24․An example of the first approach is that taken in Baker v Willoughby [1969] UKHL 8; [1970] AC 467 (cited in Luntz and Harder at 318 – 319 [2.2.18] and 412 [2.9.4]), where a plaintiff sustained an injury to his leg as a result of being negligently struck by a car. Shortly before the hearing, the plaintiff was shot in the leg during an armed robbery, requiring his injured leg to be immediately amputated. The House of Lords held that the motorist was liable for the loss suffered by the plaintiff as a result of (hypothetically) having a stiff leg, even after the shooting. That is, damages were assessed on the basis of a hypothetical world in which the second incident was disregarded.
25․An example of the second approach is the decision in Leschke v Jeffs [1955] QWN 67 (cited in Luntz and Harder at 410 [2.9.4]) where, subsequent to an accident for which the defendant was liable, the plaintiff committed an offence and was sentenced to 10 years’ imprisonment. The Court held that it was the plaintiff’s imprisonment, rather than his injuries due to the accident, that caused his lack of earnings during that period: Leschke at [3]. See also Faulkner v Keffalinos (1971) 45 ALJR 80 at 85, per Windeyer J (“I appreciate that at first sight it sems unjust that a man who has the misfortune of being hurt in a second accident should not recover all the damages that he might otherwise have recovered. But this seeming injustice stems it seems to me from a misunderstanding of the nature of damages for diminished earning capacity.”)
26․If the approach set out in (i) above is adopted, there could be no reason to vacate the present hearing. An adjournment of the proceedings will not shed any further light on the plaintiff’s position as at the day immediately before the subsequent accident. There are expert reports available which clearly set out the plaintiff’s position at the time immediately prior to the second accident, and the plaintiff’s damages may be assessed on the basis of those reports. The hypothetical assessment referred to at [24] above would be best performed by reference to those reports.
27․However, if the approach set out in (ii) above is followed, then there is merit in the proposition that the hearing should not proceed until there is some clarity regarding precisely what injuries and disabilities the plaintiff has sustained due to the second accident. This would allow a more accurate assessment to be made of the ongoing harm suffered by the plaintiff that can be attributed to the subject accident.
28․I have not had the benefit of full argument on the question of which approach to the assessment of damages should be adopted. I note that the observations of Windeyer J in Faulkner were queried by Kerr CJ and Jacobs JA in Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 at 191. Their Honours concluded that the result in Faulkner was inconsistent with the application of Windeyer J’s observations. I also note that the appropriate approach to be adopted may differ between different types of claims (for example, damages for personal injury as opposed to claims of loss of earnings) and may depend on whether the subsequent accident is characterised as wrongful or non-wrongful (an issue upon which there is presently no evidence before the Court, other than a notation in a hospital file that the second accident involved a single motor vehicle): see Luntz and Harder at [2.2.17], [2.9.4] and [2.9.8] and Sharn Hobill, “(4) Causation and Proof in Negligence” in Halsbury's Laws of Australia (LexisNexis, last updated 2 September 2022) at [300-95]. Consideration will also need to be given to whether any provisions of the Civil Law (Wrongs) Act 2002 (ACT) impact upon the resolution of these issues.
29․It is not necessary, or appropriate for me, on this interlocutory application, to determine the legal principles that should be applied to the assessment of damages in this difficult case. For present purposes, it is sufficient to note that both the plaintiff and the defendants appeared to foreshadow an intention to contend that the second approach to the assessment of damages should be applied.
30․Specifically, the plaintiff has foreshadowed that she intends to claim damages from the defendants for any exacerbation of her injuries from the subject accident which was occasioned by the second accident: see State Government Insurance Commission v Oakley (1990) 10 MVR 570 at 573. The plaintiff’s counsel acknowledged that this claim is not clearly articulated in the current statement of particulars, and indicated that the plaintiff would be seeking leave to make this aspect of her claim clear. The defendants’ primary position is that any injuries sustained in the subject accident had completely resolved by the second accident. The defendants’ alternative position, as pleaded in its defence, is that the injuries which the plaintiff sustained in the second accident have entirely overwhelmed any injuries that remained immediately prior to the occurrence of the second accident. In other words, both the plaintiff and the defendants will submit that the Court should consider the plaintiff’s current condition when assessing any damages to be awarded.
31․As both parties rely on the injuries sustained by the plaintiff in the second accident in support of their respective cases, I consider that there is merit in the plaintiff’s contention that the hearing should not proceed until there has been sufficient stabilisation of her condition to enable an assessment to be made of the extent of the injuries sustained in that accident.
32․The defendants’ counsel submitted that the plaintiff had not tendered sufficient evidence on this application to demonstrate that her condition has not stabilised since the second accident. In this respect, the defendants’ counsel noted that the proposed future surgery relates to injuries that are unrelated to the subject accident. The defendants’ counsel also queried the relevance of a neuropsychological report (which has not yet been received) to the claim for injuries arising from the subject accident.
33․On the present application, I was provided with some, but not all, of the medical evidence which the parties propose to adduce in the hearing. The majority of that evidence predates the second accident. The medical evidence which postdates the second accident is limited to the following:
(a)A discharge summary from Canberra Hospital dated 27 January 2023, which outlined the plaintiff’s injuries and treatment undertaken immediately following the second accident.
(b)A neuropsychology assessment by Canberra Hospital dated 27 January 2023, which indicated the plaintiff had relatively mild speed and attention impairments. She was assessing as showing good early cognitive recovery from a severe traumatic brain injury.
(c)A medico-legal report of Dr Farhan Shahzad, consultant occupational physician, dated 14 March 2023. This report concluded that the plaintiff had ongoing injury and disability resulting from the subject accident, for which her prognosis was poor (even prior to the second accident). This would continue to affect her working capacity for the foreseeable future.
(d)A medico-legal report of Dr Mark Ridhalgh, orthopaedic surgeon, dated 3 April 2023. This report concluded that the plaintiff’s condition had stabilised prior to the second accident, and that Dr Ridhalgh did not expect to see further improvement in her injuries resulting from the subject accident. The report indicates that the plaintiff’s prognosis is poor.
(e)A Domestic Needs Assessment report dated 19 April 2023 by Katrina Prior, Occupational Therapist. This report concluded that the plaintiff’s current domestic care needs likely relate to the second accident, and, consistent with Ms Prior’s earlier assessment in 2021, recommended care only for the first 12 weeks following the subject accident.
(f)Consultation notes from Kambah Medical Centre regarding a consultation on 19 April 2023, in relation to vision impairment, jaw issues, back pain, neck pain and stiffness, facial numbness, lack of smell, and nighttime coughing.
(g)The plaintiff’s answers to a request for further and better particulars dated 16 May 2023 relating to the subject accident, including details of treatment in relation to the second accident and details of her family circumstances and duties.
(h)A referral from Kambah Medical Centre to Sutton & Williams Psychology Services dated 1 June 2023 for a neuropsychology assessment.
(i)Referral from Dr Parth Shah, Ophthalmologist, to Dr Anthony Maloof regarding orbital asymmetry and right epiphora dated 10 August 2021.
(j)A medico-legal report of Dr Ron Brooder dated 22 August 2023. This report provides a clinical assessment, diagnosis and prognosis of the Plaintiff’s injuries resulting from the subject accident, concluding that her prognosis has become more guarded in light of her limited improvement and further aggravation due to the second accident.
(k)Surgical quote from Dr Anthony Maloof dated 26 September 2023.
34․An affidavit from the plaintiff’s solicitor states that the plaintiff is likely to undergo further surgery in the near future. In particular, it is probable that the plaintiff will be fitted with a brace by her treating orthodontist to address ongoing dental injuries due to the second accident. The plaintiff is also scheduled to have a consultation with three specialists on 3 November 2023, to ascertain a further treatment plan for the injuries to her nose and right eye sustained in the second accident. This may include further surgery. The plaintiff has also been provided with a quote for further facial surgery (as noted at [33(k)] above).
35․In addition, the plaintiff was referred to Mr Tom Sutton for a neuropsychological assessment on 1 June 2023. The assessment was conducted on 25 September 2023, however, the neuropsychological report has not yet been received.
36․The plaintiff’s evidence in support of the application for vacation of the hearing date suffers from some inadequacies. As the defendants’ counsel submitted, there is no evidence before the Court which clearly states that the injuries resulting from the second accident have not stabilised. The surgery which is proposed – to the plaintiff’s sinuses and teeth, and potential facial surgery – does not concern injuries which were sustained in the subject accident or which are alleged to have been exacerbated in the second accident.
37․The plaintiff’s counsel submitted that “the fact that surgery is proposed and scheduled is itself the best evidence that the effects of the 2022 injury still linger”. Counsel also referred to evidence that the plaintiff has been assessed by Mr Sutton (a neuropsychologist), and that the results of that assessment are as yet unknown. Counsel submitted that this assessment is relevant to evaluating the plaintiff’s prospects of recovery from the second accident, which will affect the determination of the future loss that will continue to flow separately from the subject accident.
38․I agree that the evidence before the Court in support of the plaintiff’s application is deficient. Ideally, the Court would have been assisted by evidence which described the plaintiff’s current position, and indicated with precision what further investigations, assessments and surgeries are proposed, and how it is considered that the results of those investigations, assessments and surgeries will stabilise the plaintiff’s condition and/or better inform the Court as to the nature and cause of the plaintiff’s ongoing injuries, disabilities and restrictions.
39․However, despite these deficiencies, I am satisfied that the plaintiff has demonstrated that it would be unfair for the hearing to proceed on 30 October 2023. As outlined above, it appears that both the plaintiff and the defendants propose to rely on the injuries which the plaintiff sustained in the subsequent accident in support of their respective cases. A year has not yet elapsed since the plaintiff was involved in that accident, the effects of which were severe, at least in the immediate aftermath. The plaintiff has surgery planned, and has obtained a neuropsychological report which is yet to be produced.
40․These surgeries and the neuropsychological assessment relate to injuries which are unrelated to the injuries that the plaintiff allegedly sustained in the subject accident. However, in circumstances where the defendants contend that the injuries sustained by the plaintiff in the subsequent accident have overwhelmed those sustained in the subject accident, I consider it to be critical that an opportunity be given for those injuries to stabilise and for the Court to be properly appraised of the plaintiff’s overall prognosis before any assessment of causation and damages can be undertaken. Accordingly, I am satisfied that the present hearing should be vacated.
Orders
41․For those reasons the following orders are made:
(1)The hearing listed on 30 October 2023 (with an estimate of four days) be vacated.
(2)The matter is listed in the Registrar’s List at 10:15am on 17 October 2023.
42․I will hear the parties on the costs of this application and any application for the costs occasioned by the vacation of the hearing date.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McCook Date: 11 October 2023 |
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