Pursche v Boyle

[2016] NSWSC 468

Supreme Court

New South Wales

Medium Neutral Citation:

Pursche v Boyle [2016] NSWSC 468

Hearing dates:

5 April 2016

Date of orders:

05 April 2016

Decision date:

05 April 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. The proceedings between parties (2015/40372) in the District Court of NSW in Sydney be removed into this court pursuant to s 140 of the Civil Procedure Act 2005 (NSW)

 

2. Pleadings in the District Court will stand as pleadings for proceedings in this court

 

3. Proceedings removed by these orders are to have the same priority as if they were filed in the Supreme Court

 4. Costs be costs in the proceedings

Catchwords:

PROCEDURE – civil - transfer of proceedings from District Court to Supreme Court

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Cubrilo v Veljovic [2015] NSWSC 367

Category:

Procedural and other rulings

Parties:

Rebecca Pursche (Plaintiff)
Jarrod Boyle (First Defendant)
St. Lukes Scone Grammar School Council (Second Defendant)

Representation:

J Catsanos (Plaintiff)
P Riordan (Second Defendant)

File Number(s):

2016/88892

EX TEMPORE Judgment

1. By summons filed in the Registry of this Court on the 22nd of March 2016, the plaintiff, Rebecca Pursche, moves the Court for transfer of proceedings filed in the District Court, to be heard in the Supreme Court.

2. The orders sought are; firstly, that an order be made transferring the District Court proceedings filed in 2015 to this Court, pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (‘CPA’).

3. Secondly, an order that the pleadings in the District Court stand as pleadings in the proceedings in this Court.

4. Thirdly, an order that the proceedings have some priority in this Court, as if they had been filed originally in this Court, and finally, an order for costs to be costs in the proceedings.

5. In support of the application, the plaintiff tenders and relies upon an affidavit of Iain Miller of the 4th of April 2016. Mr Miller's affidavit attaches a number of documents relevant to the nature of the claim made by the plaintiff and the damage that is said to have been sustained by her as a result of the malfeasance of the defendants.

6. In brief, the claim is one against both an individual, Mr Boyle, and a school, St Luke's Grammar School at Scone. The claim relates to a sexual assault which, and it appears there is no dispute, occurred on or about the 12th of February 2012, and was perpetrated by the first defendant. At that stage, both the plaintiff and the first defendant were students at the school conducted by the second defendant.

7. The evidence is that the first defendant was criminally charged with an assault of a sexual nature and placed before what I assume would have been the Children's Court, since he must have been aged about 16 or 17 at the time. He was subsequently dealt with following a plea of guilty by way of a good behaviour bond. That result in itself is suggestive of the Children's Court jurisdiction.

8. That being the evidence, and as I have noted there does not appear to be any issue that the sexual assault of which the plaintiff complained in fact occurred, the real issue of dispute is between the plaintiff and the second defendant. In that regard, the plaintiff pleads that the second defendant, although aware of the sexual assault, and aware of the criminal investigation and subsequent prosecution of the first defendant, took no steps to safeguard the plaintiff from exposure to the first defendant, and to bullying and other harassing and demeaning conduct, in which it is said the first defendant engaged.

9. The second defendant did not expel the first defendant and it appears, on the evidence, that there is even a question as to whether the second defendant took any steps at all to protect the plaintiff from intimidation and harassment by the first defendant.

10. Those are live issues.

11. The defendant disputes liability and disputes the issue of quantum.

12. The defendant has read before the Court the affidavit of Patrick Riordan of the 4th of March 2016. Mr Riordan has attached a number of documents to his affidavit as annexures, including, of particular relevance here, evidence which the second defendant will seek to rely upon when the statement of claim is heard, particularly insofar as assessment of damages is concerned.

13. The plaintiff's application is made under s 140 of the CPA, specifically s 140(3)(b). That provision provides that:

“Section 140

[…]

(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:

[…]

(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 [..].”

14. At present, the jurisdictional limit of the District Court stands at $750,000.

15. In opposing the grant of the relief claimed by the plaintiff, the defendant, as I understand it, relies only upon the issue as to quantum of damages. It is the second defendant's contention that even, if successful, the plaintiff's claim is not worth the jurisdictional limit of the District Court and accordingly, there could not be said to be a real chance of an order for damages in excess of the sum of $750,000 to the plaintiff.

16. It is that issue which will determine the current application: whether there is in fact a real chance of the plaintiff receiving damages in an amount in excess of $750,000 as against the first and second defendant. Damages will fall to be assessed relevant to economic loss, non-economic loss and, as against the first defendant, aggravated damages.

17. In his affidavit Mr Miller has deposed to the nature of the claim against the first and second defendants that was filed in the District Court and the amended statement of claim of the 4th of September 2015 is before the Court as annexure A to Mr Miller's affidavit.

18. The amended statement of claim sets out the pleadings and particulars of the action, and notes the circumstances of the claim. In short, the second defendant provided educational services to the plaintiff, and owed the plaintiff a non-delegable duty to take reasonable care to protect her, and ensure her safety and well-being, in the context of the educational environment provided by the second defendant.

19. It is pleaded that, with knowledge of the allegation of sexual assault committed by the first defendant, and aware of the arrest of the first defendant and his subsequent plea of guilty to criminal charges connected with the sexual assault of the plaintiff, the second defendant took no relevant or appropriate steps to secure a safe environment for the plaintiff to attend school and further her education.

20. It is pleaded that the second defendant became aware of the allegation of sexual assault from at least the 9th of March 2012, that being about a month after the assault is said to have occurred.

21. There was subsequent conversation between the plaintiff, her family and the second defendant but, notwithstanding the acknowledged sexual assault that was perpetrated by the first defendant on the plaintiff, the plaintiff pleads that the second defendant continued to place her in classes with the first defendant where she was regularly exposed to conduct from him which was bullying, harassing and intimidating, and that the second defendant permitted this and took no steps to protect her.

22. Mr Miller annexes additionally to his affidavit some of the evidence which has been gathered already in support of the amended statement of claim currently before the District Court. In particular, there is a medical report from Dr Julian Parmegiani, which is annexure C to Mr Miller's affidavit. Dr Parmegiani has assessed the plaintiff for the purposes of preparing his report and his conclusion, stated in very broad terms, is that the plaintiff has chronic post-traumatic stress disorder, that her illness is both ongoing and pervasive, and that her level of impairment is both significant and continuing.

23. Dr Parmegiani has concluded that the injury occasioned to the plaintiff through both the sexual assault perpetrated by the first defendant, and then being placed in an ongoing environment of threat and intimidation by the second defendant, has caused such psychiatric consequences that her capacity to study has been and will be significantly affected, and her capacity ultimately to earn an income has been very greatly impaired.

24. There is other evidence before the Court provided as annexures to Mr Miller's affidavit, including some vocational capacity assessment evidence, and some further material relevant to the damage said to have been sustained by the plaintiff.

25. The defendant relies upon material gathered in support of its defence to the amended statement of claim which is annexed to Mr Riordan's affidavit. Principally, reliance is placed upon a report from Dr Doron Samuell. Dr Samuell has also assessed the plaintiff, although his prognosis and opinion is rather more optimistic than that of Dr Parmegiani. Dr Samuell whilst acknowledging that the plaintiff has been injured as a consequence of the sexual assault committed by the first defendant, regards the plaintiff as already significantly improved and well on her way to recovery. Dr Samuell does not accept Dr Parmegiani's opinion, which he referred to as pessimistic for the future.

26. There is a real contest between the parties as to whether the plaintiff suffers significant damage that will be ongoing in the future, and will have a substantial impact upon both her personal capacity and her capacity to earn an income, or whether see is someone who, whilst she has suffered some injury, is likely to at least substantially recover, if not completely recover, in the short to medium term.

27. The determination of that live issue is not something that this Court can undertake in any fully or deeply considered way. I have been referred to a decision of Campbell J of this Court, Cubrilo v Velojovic [2015] NSWSC 367, in which his Honour described the process of endeavouring to assess likely damages as “impressionistic” (at [3]). I would endorse his Honour's use of that adjective.

28. Whilst it is possible for me to read the evidence from the various experts who have considered the plaintiff's position, the injury to her, its depth, its consequences, and likely duration, in the absence of seeing those witnesses tested, it is impossible to ultimately resolve the very significant dispute between the parties.

29. However, resolution of that dispute is not necessary for determination of the application pursuant to the provision. What this Court has to consider is whether the plaintiff has established that there is a real chance that damages awarded to her, if she is successful in her claim, could exceed the jurisdictional limit of the District Court.

30. Conceding that my conclusion is necessarily impressionistic, I have concluded that there is a real chance that the plaintiff could recover damages in excess of the jurisdictional limit of the District Court.

31. The damages to be sought against the first defendant include both economic loss and non-economic loss, but also, significantly in my view, aggravated damages.

32. The details of the claim which is pleaded against the first defendant, if they are borne out at hearing, are such that it seems to me likely that there would be an order of aggravated damages, and it would be in a not insignificant sum.

33. The evidence as to the impact upon the plaintiff of the sexual assault, when she was at the significant and particularly vulnerable age of 16, is capable of establishing that the damage to this young woman has been profound.

34. Given that the consequences of the sexual assault were, on the pleadings, exacerbated by the second defendant's management of the issue at school, it is said that there has been significant impairment to the plaintiff's capacity to study. The damage occurred in an educational environment and participation in other educational environments, it is pleaded, has consequently placed this plaintiff in great difficulty because it leads to flashbacks and other intrusive thoughts which she is not able to manage or deal with.

35. That, it is said, in the evidence adduced by the plaintiff, has led to a fundamental impairment in her capacity to study. That in turn has impaired her capacity to undertake further studies which would ultimately have been able to provide this young woman with the sort of professional career that she, it appears upon reasonable grounds, had hoped to achieve prior to the damage inflicted upon her by the first defendant.

36. Whilst there is also an issue as to the reasonableness of the economic loss assessed for the purposes of this application by the plaintiff, it seems to me to be a reasonably modest assessment, importing a number of qualifications and limitations which diminish the estimate.

37. If the plaintiff makes out those matters of which she complains in the amended statement of claim, it seems to me that it must be reasonably possible that the Court which would ultimately hear and determine that claim would award a sum of damages to her relevant to economic loss, non-economic loss and, as against the first defendant, aggravated damages, which may not just exceed the District Court's jurisdictional limit but exceed it with some significant margin.

38. That being the case, it is appropriate to make the orders sought for removal of the proceedings into this Court and determination of the proceedings in this Court. The orders that the Court makes are these:

1. The proceedings between the parties in the District Court of New South Wales at Sydney (2015/40372), be moved into this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

2. The pleadings in the District Court will stand as pleadings in the proceedings in this Court.

3. The proceedings removed by these orders are to have the same priority as if they had been filed in the Supreme Court.

4. Costs be costs in the proceedings.

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Decision last updated: 19 April 2016