Pickering v Killians Walk Owners Corporation No 12870 (Ruling)
[2013] VCC 1206
•13 September 2013
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
damages and compensation list
general division
Case No. CI-12-04297
| SUSAN MAISEY PICKERING | Plaintiff |
| v | |
| KILLIANS WALK OWNERS CORPORATION No 12870 (ABN 59 075 089 061) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2013 | |
DATE OF RULING: | 13 September 2013 | |
CASE MAY BE CITED AS: | Pickering v Killians Walk Owners Corporation No 12870 (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1206 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Occupiers’ liability – claim for damages – claim for non-economic and economic loss – requirement for the plaintiff to meet a threshold level to recover damages for non-economic loss – plaintiff seeking an order for trial and interlocutory orders – objection by the defendant that no order should be made in the absence of the plaintiff meeting the threshold level to recover damages for economic loss
Legislation Cited: Wrongs Act 1958, s28LE, Transport Accident Act 1986; Accident Compensation Act 1985
Ruling: Order for trial and compliance with interlocutory steps.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McGregor | Arnold Dallas McPherson |
| For the Defendant | Ms N Zur (solicitor) | Wotton Kearney |
HIS HONOUR:
Introduction
1 The plaintiff commenced a proceeding by Writ filed 6 September 2012 alleging that on 24 December 2011, she slipped and fell in an arcade owned by the defendant, and further alleged that the slip and fall occurred as a result of the negligence of the defendant.
2 Mr S McGregor of Counsel appeared for the plaintiff, and Ms N Zur, solicitor, appeared for the defendant.
3 The Statement of Claim endorsed on the Writ claims damages for non-economic loss and economic loss.
4 Section 28LE of the Wrongs Act 1958 (“the Act”) provides that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
5 The legislative scheme provided for under PART VBA of the Act requires the plaintiff to have a determination made that she has suffered a significant injury. In short, that is done by the plaintiff obtaining an impairment assessment which is used to assess whether the plaintiff has met the threshold level. If the relevant threshold level is satisfied, then the plaintiff can recover damages for non-economic loss. It is unnecessary for me to set out much more than the foregoing.
6 Mr MacGregor submitted that I should fix a trial date and make the usual interlocutory orders. Ms Zur submitted that I should not fix a trial date until the plaintiff declares whether she intends to claim both non-economic loss and economic loss.
7 Ms Zur submitted that without the declaration, the defendant will be required to prepare its defence of the plaintiff’s case assuming that the plaintiff intends to recover damages for non-economic loss. She submitted that it will put the defendant to the unnecessary cost and expense, and therefore, a trial date should not be fixed, and no order should be made until the plaintiff satisfies the relevant provisions under PART VBA of the Act.
8 Mr MacGregor responded by submitting that the manner in which the plaintiff is prosecuting her proceeding is permissible. The plaintiff can adduce evidence at the trial relevant to non-economic loss, but in the absence of meeting the threshold, she cannot recover any damages by dint of s28LE. Mr MacGregor hinted that at present, the plaintiff may not be able to satisfy the threshold, and that it is intended that the plaintiff will hold her position and not make the decision whether to abandon a claim for non-economic loss until a time when the date for trial is impending.
9 Mr MacGregor submitted that the defendant should proceed as if the plaintiff is only claiming damages for economic loss, until such time as that changes.
Disposition
10 The legislature has created an unusual position inconsistent with the provisions of the Transport Accident Act 1986 and the Accident Compensation Act 1985, which provide that no claim for damages can be made in the absence of the common law gateway being opened.
11 The effect of that is that a plaintiff can claim non-economic loss without having satisfied the threshold and potentially put the defendant to unnecessary cost and expense if it becomes clear that the threshold cannot be satisfied by the plaintiff.
12 I am sympathetic to the position outlined by Ms Zur. I think it is highly desirable that a defendant is placed in a position where the defendant can understand the case which the defendant must meet. Here, if the defendant were to prepare its defence to the plaintiff’s case based upon the Statement of Claim, then it will inevitably need to undertake preparation which may be wasted if the plaintiff cannot satisfy the threshold.
13 I cannot order that the plaintiff take the steps set out in PART VBA, because there is no power under the Act for me to make such an order. If I had the power I would not hesitate to make that order.
14 What I propose to do is to make orders in terms of the consent orders that were submitted to me.
15 If the defendant prepares its case to meet a possible/probable claim for non-economic loss, and that claim does not eventuate, then I will entertain an application made by the defendant for costs thrown away.
16 If the defendant prepares its case to meet only that claim for economic loss, and needs to change its position should the plaintiff satisfy the threshold level, I will also entertain an application to reconsider whether the plaintiff should hold the trial date, and whether other interlocutory orders need to be made, including an application by the defendant for costs thrown away.
17 I think that both parties must create certainty so that the real issues to be tried come to the surface as soon as that is practicable. I think it is incumbent, therefore, on the plaintiff to take the necessary steps to determine whether she could satisfy the threshold level, otherwise the orders that are made will be provisional, and subject to revision should the nature of the plaintiff’s claim change materially. I think that is a very unsatisfactory position which I think was an unintended consequence of PART VBA.
Orders
18 The orders are attached to this short ruling.
| COUNTY COURT OF VICTORIA |
CIVIL JURISDICTION RESULT SHEET
Damages and Compensation List – General Division
Case ID : CI-12-04297 Case Description : Pickering v Killians Walk Owners Corporation Event Type : Directions Hearing Judge : His Honour Judge Misso Date Of Order : 13 September 2013 Appearances Plaintiff: Mr S McGregor Defendant: Ms N Zur (solicitor)
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ORDERS THAT:
- The proceeding is set down for trial on 24 September 2014 as a Jury (estimate 5-7 days).
- The trial fee has been paid in this proceeding.
- Any application to vacate the trial date is to be made at least 28 days prior to the trial date to the Judge in Charge of the Damages and Compensation List General Division.
- By 4:00 pm on 7 February 2014 the defendant is to pay the jury fee. In default, any other party may pay the fee within a further 14 days. If the fee is not paid, the trial will proceed as a Cause.
- The parties are to cooperate in completing the interlocutory processes in accordance with the Rules of Court so that the action is brought to trial as quickly as is reasonably practicable.
- By 29 September 2013 the parties have leave to serve any Notice for Discovery on each other.
- By 29 November 2013 the party served with a Notice for Discovery must make discovery (including full inspection) of the following documents:
- each document referred to in the party’s pleadings or the particulars of the pleadings;
- any document which may be produced by the party during evidence at the trial;
- any document which may harm the party’s case;
- any document or class of documents which any other party reasonably requests the party to discover.
- The parties have leave to serve Interrogatories for the examination of each other by 14 February 2014.
- By 4:00 pm on 14 March 2014:
- the parties are to exchange any medical and/or expert reports concerning damages and liability;
- the plaintiff is to serve particulars of special damage, loss of earnings and loss of earning capacity.
- By 16 May 2014, the parties are to mediate the dispute.
- The plaintiff is to notify the Court in writing if the proceeding settles at or after mediation, such notification to occur as soon as possible after settlement.
- Any subpoena under Order 42A is to be issued by 27 June 2014.
- No later than 28 days before the trial date:
- the parties are to exchange any further medical and/or expert reports concerning damages and liability, along with supporting documentation;
- the plaintiff is to serve any final particulars of special damages, loss of earnings and loss of earning capacity.
- Court Books must be prepared by the parties (either jointly or separately), served 7 days prior to trial, and filed at the commencement of the trial with the Judge’s Associate.
- Liberty to apply to the Judge in Charge of the Damages and Compensation List General Division for further directions upon reasonable notice to all other parties.
- Costs reserved.
Order made: 13 September 2013
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His Honour Judge Misso
County Court of Victoria
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