Pirlo v King

[2016] NSWSC 1126

Supreme Court

New South Wales

Medium Neutral Citation:	Pirlo v King [2016] NSWSC 1126
Hearing dates:	15 August 2016
Date of orders:	16 August 2016
Decision date:	16 August 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Application dismissed.  (2) Costs to be costs in the proceedings.
Catchwords:	PRACTICE & PROCEDURE – application for expedition and change of venue – whether in the interests of justice – where plaintiff suffers from psychiatric condition allegedly related to the events giving rise to the proceedings – whether delay unusual – whether plaintiff at risk if earlier hearing not arranged – where necessary to balance the competing interests of the parties – application refused
Category:	Procedural and other rulings
Parties:	Anthony John Pirlo (Plaintiff) Trevor King (First Defendant)
Representation:	Counsel: E Romaniuk SC with E Grotte (Plaintiff) T A Berberian (First Defendant)   Solicitors: Somerville Laundry Lomax (Plaintiff) Wotton + Kearney (First Defendant)
File Number(s):	2013/109434
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By his notice of motion filed on 19 July 2016, Mr Pirlo seeks to have these proceedings expedited and heard in Lismore instead of Sydney. The matter is presently listed for hearing in Sydney with an estimate of 5 days commencing on 6 February 2017. The proceedings were originally commenced in the Lismore District Court but later removed to this Court. The evidence reveals that there are two available blocks of 5 days in either of which the matter could be accommodated in Lismore, respectively commencing 12 September or 12 December 2016. Listing the matter in either of those weeks would expedite the proceedings by default.

2. Mr Pirlo’s application is opposed.

Background

3. Mr Pirlo was seriously injured on 7 June 2011 during the course of his work as a cable installer when he was struck by the bucket of a mechanical excavator. He allegedly sustained a series of injuries that included a brain injury. He now suffers from headaches, poor memory, confusion and disorientation. He has been diagnosed with a major depressive disorder associated with constant shoulder and back pain and other disabilities including behavioural changes. Mr Pirlo’s claim is based upon the proposition that he has been rendered totally incapable of returning to his pre-injury employment or indeed any employment at all.

4. Mr Pirlo lives with his wife in Casino, which is about 33 kilometres from Lismore. Neither of them works. They are in financially straitened circumstances. They will suffer hardship if they are required to be away from Casino if the proceedings are heard in Sydney for a week, with associated attendances on legal representatives, and family support is more available close to where they reside.

5. A recent report from a psychiatrist, Dr Stephen Huntsman, dated 29 June 2016 outlined Mr Pirlo’s condition at the time. It is relevant to this application, as the following extracts reveal:

“Progress since 13/05/2015

Mr Pirlo stated that nothing had changed since my last assessment. He stated that he experienced constant pain in several parts of his body, which was exacerbated by activity. He stated that he experienced no joy or interest in any activity and simply tried to get through the day, filling in time by tinkering in his shed. He ate irregularly, tending to snack and typically stayed up watching television until 2.00am or 3.00am. He stated that he felt he had ‘lost (his) life’. He stated that he was unable to work, unable to run and unable to make things. He stated that he believed it would have been much better for him and his family if he had died as a result of the accident.

Mr Pirlo stated that he felt extremely guilty that his son had needed to support him financially and that he relied upon his wife for day-to-day care. He stated that he felt like something was ‘going to explode’ and had become intensely frustrated. He reported becoming irritable and verbally angry, which had never been his nature.

Mr Pirlo stated that his memory was now very poor. He had no involvement in day-to-day affairs, relying on his wife. He stated that he had few treatment options, due to his difficult financial circumstances.

Mr Pirlo stated that he was worn out, as a result of numerous trips to Sydney for medicolegal assessments. He stated that he had no interest in the outcome of his personal injury claim, as nothing would give him the five years he had lost since the accident, or the life he formerly led.

Mr Pirlo stated that he experienced suicidal ideation on a daily basis, although he was generally able to resist this because of the effect this would have upon his family. However, on one occasion he had left home, with the intention of never returning, only to subsequently reconsider and return.

Mr Pirlo’s wife stated that she was very distressed and concerned about her husband’s deteriorating course. She stated that she could see him declining physically. She stated that he had had a number of falls due to instability in his knee and stated that his memory was ‘dreadful’. She stated that Mr Pirlo had always shown an amazing aptitude for making things and repairing items, but now had lost all interest and ability in this regard. She stated that he disliked socialising, even with his sons when they visit and had stopped going out at all. She stated that he had acknowledged his need for psychiatric treatment, but felt that their financial circumstances meant that this was not an option.

Mr Pirlo was currently taking duloxetine 60mg daily, an antidepressant medication, as well as Lyrica 75mg daily, a treatment for neuropathic pain. He also took paracetamol for his pain, and infrequently supplements this with Panadeine Forte or tramadol, two opioid-based analgesics, although he preferred to avoid these because of adverse effects.

Both Mr and Mrs Pirlo stated that the recent delay in settlement of his claim had resulted in deterioration in his condition. Mr Pirlo could see no reason for the delay and was concerned this represented a deliberate attempt by his insurer to prolong proceedings. This had accentuated his feelings of frustration and powerlessness, which further aggravated his feelings of inadequacy.

Mental State Examination

He presented as a dishevelled and unkempt man who appeared unhappy and frustrated, but was cooperative with the interview. He appeared to have gained weight since my previous contact with him. Speech was limited in amount, but normal in rate and volume. There was no thought disorder. There were no delusions and there was no evidence of hallucinations. His mood was depressed and angry, his affect reactive.

Diagnosis (as defined in DSM – IV)

Major depressive disorder, single episode, chronic

I remain of the opinion that the accident of 7th June 2011 is the main contributing factor to the onset of his condition.

Impact of Litigation

It is well recognised in medicine that litigation delays recovery. The reasons are multifactorial and complex. At the same time, it is important for patients that due process is followed, which inevitably takes time.

In Mr Pirlo’s case, I have observed a relentless and progressive deterioration in his condition since my initial contact with him in 2012 and have also observed the impact this has had upon his wife.

Mr Pirlo has not received sufficient or appropriate treatment for his depression and it appears his financial circumstances are a major contributing factor to this. The outcome for him is virtually certain to be worsened as a result. As well as the losses he has suffered as a result of the accident of 7th June 2011, Mr Pirlo now carries the additional emotional consequences of his perception of not being supported or treated fairly by his insurer.

In my opinion, Mr Pirlo has reached the point where there is a risk of serious harm if litigation is prolonged. He no longer has an interest in the outcome of litigation and has repeatedly experienced suicidal ideation. In my opinion, there is a very strong case for the trial in Mr Pirlo’s matter to be expedited.”

6. It does not appear to be in issue that a change of venue from Sydney to Lismore on either of the proposed dates would not operate to displace some other case or cases in this Court that are scheduled to commence there at either of those times. It is also not in issue that it would suit Mr Pirlo and his wife to have the matter transferred to Lismore. He concedes, however, that there are no significant issues of delay or hardship that are not specifically related to him and his wife. For example, there are no difficulties associated with a hearing in Sydney such as the convenience of lay witnesses or experts retained by Mr Pirlo.

7. The opposition to the application proceeds upon the following bases. First, the first defendant has retained eight expert medical witnesses. All of them are based in Sydney. With two exceptions, being Dr Huntsman who is based in Bangalow and Dr Jacqueline Boon, a neuropsychologist, who is based in Brisbane, all of Mr Pirlo’s medical experts are based in Sydney.

8. Secondly, conclaves of experts in related medical specialties are yet to take place. None of the conclaves is scheduled to occur before 12 September 2016 although all are due to be completed well before 12 December 2016. Directions that have been made by the Court include directions that the medical and quantum conclaves take place by 23 September 2016 and that reports from the conclaves setting out matters of agreement and disagreement be provided by 31 October 2016.

9. Thirdly, the first defendant is presently unable to ascertain the availability of his witnesses for a hearing commencing on 12 September 2016. I am unaware of their availabilities in December.

10. Fourthly, a mediation in the matter is likely to occur on either 19 or 26 September 2016 in Lismore. It would be premature to schedule a hearing before the mediation had taken place.

11. Fifthly, Ms Berberian of counsel, retained by the first defendant, is unavailable in either September or December. Ms Berberian has only been briefed to appear on behalf of the first defendant for approximately one week.

12. Sixthly, the parties are not due to file a joint memorandum of agreed facts and issues in dispute until 9 December 2016. Certificates of readiness are not due to be filed until 23 December 2016.

13. Finally, having regard to the latest report from Dr Huntsman, the first defendant has foreshadowed the need to have Mr Pirlo reassessed by Dr Revai, whose first available appointment is 29 September 2016.

Consideration

14. The present application would appear to have been generated by the circumstances in which a settlement conference scheduled for 9 June 2016 came to be cancelled. There are, however, competing versions of what occurred. Mr Pirlo’s solicitor made his position clear in a letter he wrote to his opponent on 6 June 2016 in these terms:

“We refer to your late cancellation of the settlement conference scheduled for Thursday 9 June 2016. As we have indicated to you our client, his wife and our firm have now incurred significant cost in booking airfares.

We find your client’s behaviour completely unacceptable and our client is extremely disappointed by your client’s cavalier attitude to this case. Further, your client is no doubt well aware that our client suffered a significant psychiatric injury as a result of the industrial accident which is the subject of this claim. He has been rendered severely depressed and there is little doubt that this late cancellation will exacerbate his symptoms.

Our client has now completely lost faith in any meaningful settlement discussions taking place and accordingly, this matter will now approach the court [sic] for a revised timetable.”

15. Part of the evidence relied upon by the first defendant included an earlier report from Dr Huntsman dated 19 March 2015. That was the report that preceded his latest report, upon which Mr Pirlo specifically relied on this application. It is instructive to record some of what that report contains:

“Progress since 4th June 2013

Mr Pirlo stated that there had been no real change in his condition over the previous two years, with continued pain from his injuries and chronically depressed mood.

Mr Pirlo said he had been unable to continue travelling to Coffs Harbour to attend for massage therapy, which he had felt relieved his pain, because of financial difficulties. Since my last contact with him, Mr Pirlo had been prescribed antidepressant medication by his General Practitioner. Although he was unable to recall the name of the medication, which his wife administered to him, I was able to ascertain from his wife that this was Duloxetine, (Cymbalta) 60mg daily. Mr Pirlo was also prescribed Norspan 5mg patches for management of his chronic pain. He supplemented this with Paracetamol and occasionally Panadeine Forte.

Mr Pirlo said he had tried cannabis oil for pain, on the recommendation of a friend. He had found this ineffective and had not continued with this.

Mr Pirlo reported that he did very little, apart from watch TV and have hot showers to relieve his pain, at least twice a day. He struggled to sleep at night and would stay up, often until 5am, watching TV.

Mr Pirlo described the recurrent feelings of anxiety ‘like falling off a cliff’. Mr Pirlo stated that his wife and two sons were struggling to cope with his condition. He stated that he felt he was a burden. He stated that his son had needed counselling as a result of the accident, as he had thought that Mr Pirlo had been killed.

Mrs Pirlo reported that she had observed her husband to have deteriorated markedly over the previous three to four months. She stated that he was nervous in the car and resisted leaving the home. She stated that he had not wished to attend his son’s wedding and left the wedding reception at the start of proceedings. She stated that he was withdrawn, would not talk and no longer tinkered in his shed. She stated that his memory was extremely poor and that he would lose his train of thought in conversation. She reported that he had lost interest in everything, including his son’s Speedway driving and had expressed suicidal ideation.

Mental State Examination

Mr Pirlo presented as markedly worse then (sic) my previous contact with him. He was dishevelled and clearly reluctant to be interviewed, although he remained cooperative. There was paucity of speech and evidence of psychomotor retardation. There was no thought disorder. There were no delusions and he did not experience hallucinations. His mood was profoundly depressed and his affect flat.

Diagnosis as defined in DSM-IV

1. Major depressive disorder, single episode, chronic.

As requested, I have read the report of Matthew Underwood, Occupational Therapist. I note the breakdown of tasks that Mr Underwood has identified as being tasks Mr Pirlo is no longer able to perform.

Mr Underwood’s assessment is consistent with my observation of Mr Pirlo’s condition and in my opinion his assessment of Mr Pirlo’s needs is reasonable.

I would also comment that given the serious deterioration in Mr Pirlo’s condition, he requires referral to a Consultant Psychiatrist on an urgent basis, with comprehensive treatment of his condition, probably including inpatient treatment.”

16. It is clear that, for whatever reason, Mr Pirlo suffers from a serious psychiatric condition. As the evidence makes clear, this has existed for some time and appears to be getting worse. I do not fully understand Dr Huntsman’s opinion in his latest report that Mr Pirlo “no longer has an interest in the outcome of litigation and has repeatedly experienced suicidal ideation”, as the delays in finalisation of the proceedings are otherwise promoted as at least one cause of such thoughts and the significant reason why further delay should be avoided if at all possible. Dr Huntsman also emphasises the relationship between the emergence or deterioration of psychiatric complaints and the efficient disposition of litigation such as the present.

17. Mr Pirlo’s case would appear thus far to have been handled efficiently. It came to this Court from the District Court as recently as 12 August 2015. The allocation of a hearing date for a matter of its type within 18 months is well within a range that is reasonable in all of the circumstances. Mr Pirlo’s only significant complaint is that the delay between now and February 2017 is unacceptable having regard to his parlous medical condition.

18. The interests of justice require a consideration of more than simply the interests of Mr Pirlo. The directions made by the Court so far in anticipation of a February 2017 hearing anticipate significant steps being taken towards the ultimate resolution of the proceedings. These include the organisation and implementation of the various expert conclaves, as well as the anterior work in preparation for them. The upcoming mediation falls into the same category. That mediation will occur in Lismore to suit Mr Pirlo’s convenience and in my experience will operate as a significant step in ameliorating the commonly seen anxieties about litigation of the type identified by Dr Huntsman. I endorse Dr Huntsman’s recognition of the importance of the litigious process as in effect having cathartic benefits. That is particularly so in this case having regard to the fact that the matter has proceeded so far without unsatisfactory or otherwise avoidable delays. Mr Pirlo’s psychiatric condition is not one of recent development and I do not get the impression that the period between now and 6 February 2017 is likely to make his condition worse, particularly having regard to the fact that so much needs to be done by the parties in that time. In short, the matter is progressing at a satisfactory pace and Mr Pirlo will no doubt appreciate that fact with some careful advice from his solicitor.

19. Furthermore, the medical experts and most other witnesses are generally located in or near Sydney. The organisation of concurrent evidence in a series of sessions in Lismore appears to me to wholly disproportionate to the level of concerns expressed by Mr Pirlo. The relocation of the whole of the proceedings would in my view create unnecessary expense and occasion undue inconvenience.

20. On balance it seems to me that the interests of justice favour the retention of the current hearing and the implementation of the remaining directions that are in place. The application was not hopeless or entirely without merit, so that the costs of the application should be the costs in the proceedings.

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Decision last updated: 16 August 2016