Shipton v Kone Elevators Pty Ltd

[2020] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Shipton v Kone Elevators Pty Ltd

Citation:

[2020] ACTSC 129

Hearing Date:

On the papers

DecisionDate:

28 May 2020

Before:

Burns J

Decision:

See [16]

Catchwords:

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Error in judgment – rr 1613 and 6906 of the Court Procedure Rules 2006 (ACT) – judgment entered for the plaintiff on 3 April 2020 – judgment neglected to address plaintiff’s claim for future out of pocket expenses – amending the judgment to rectify oversight – consideration of plaintiff’s claim for future out of pocket expenses

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 1613, 6906

Cases Cited:

D’Arcy v Caltex Australia Limited (No 2) [2018] ACTSC 306

Massouras v Kone Elevators Pty Ltd; Pattinson v Kone Elevators Pty Ltd; Shipton v Kone Elevators Pty Ltd; Soesman v Kone Elevators Pty Ltd [2020] ACTSC 66

Parties:

Alison Shipton (Plaintiff)

Kone Elevators Pty Ltd (1st Defendant)

The Trust Company Limited (2nd Defendant)

Cromwell Corporation Limited (3rd Defendant)

Cromwell BT Pty Ltd (4th Defendant)

Cromwell Property Securities Limited (5th Defendant)

Cromwell Property Services Pty Ltd (6th Defendant)

Cromwell Funds Management Limited (7th Defendant)

Cromwell Project & Technical Solutions Pty Ltd (8th Defendant)

Cromwell Property Group (9th Defendant)

Cromwell Property Fund (10th Defendant)

Cromwell Diversified Property Trust (11th Defendant)

Representation:

Counsel

A Bartley SC (Plaintiff)

B K Nolan (1st Defendant)

L Hawkes (2nd-11th Defendants)

Solicitors

Ken Cush and Associates (Plaintiff)

Moray & Agnew (1st Defendant)

McCabe Curwood (2nd-11th Defendants)

File Number:

SC 400 of 2016

BURNS J:

1. On 3 April 2020, I ordered that judgment be entered for Mrs Shipton against the first defendant (Kone): [2020] ACTSC 66. Mrs Shipton was awarded damages in the sum of $2,140,246.48. It was subsequently brought to my attention that I had neglected to address Mrs Shipton’s claim for future out of pocket expenses. This was clearly an oversight on my part, as I had found Kone to be liable for damages and had addressed each of the other heads of damage claimed by Mrs Shipton.

1. I am satisfied that I am able to rectify this oversight by amending the judgment in favour of Mrs Shipton. This may be done either by virtue of r 6906 of the Court Procedure Rules 2006 (ACT) (the Court Procedure Rules) (the slip rule) or r 1613 of the Court Procedure Rules: see D’Arcy v Caltex Australia Ltd (No 2) [2018] ACTSC 306.

1. The plaintiff claimed the following amounts by way of future out of pocket expenses:

(a)     review by a general practitioner four times a year at $108.00 per consultation, amounting to $9,603.69 ($8.31 x 1,156.0);

(b)     review by a neurosurgeon once a year, at $170.00 per consultation, amounting to $2,223.00 ($1.92 x 1,156.0);

(c)      review by a physiotherapist, 12 sessions a year at $135.00 per session, amounting to $15,000.00 ($31.15 x 1,156.0);

(d)     review by a psychologist, 12 sessions in the first year, and then 4 sessions in the second year, at $250.00 per session, amounting to $4,000.00;

(e)     a buffer for medication in the sum of $5,000.00;

(f)       a buffer for a pain management program of $5,000.00; and

(g)     a buffer for the chance of future surgery of $20,000.00.

1. In his report dated 24 February 2017, Dr Steven Buckley recommended that Mrs Shipton see her general practitioner four times a year for ongoing pain management. He also recommended that she see a neurosurgeon once a year, although he believed that further operative intervention was unlikely to assist her. Dr Buckley also stated that Mrs Shipton requires twelve physiotherapy appointments annually.

1. With regard to the claim for review by a psychologist, Professor Lorraine Dennerstein AO, in her report dated 13 March 2017, recommended that Mrs Shipton should attend a psychologist for pain management, Cognitive Behaviour Therapy and mindfulness techniques for 12 months, then being reduced to quarterly in the following year.

1. With regard to the claim for a buffer for future medications, I have no doubt that Mrs Shipton will need medication for pain relief and to treat depression for the foreseeable future. It is not possible to place an exact figure on the cost of that treatment.

1. Mrs Shipton relied upon the report of Associate Professor Richard Stark, dated 15 May 2017, as support for her claim for a buffer for a pain management program. Associate Prof Stark stated:

Future treatment is likely to be along the lines of a pain management program. I am not convinced that further surgery would be helpful. Usually a course of pain management is prescribed. I am not able to give an estimate of the likely costs.

1. Finally, regarding the request for a buffer for the chance of future surgery, Mrs Shipton relied on the report of Dr Peter Giblin, dated 16 November 2017, in which he said:

There is a prospect of deterioration in relation to accelerated degenerative changes at the degenerate disc of C5/6.

Further surgical considerations may arise and these will include, but not be limited to, a C5/6 disc excision and fusion with the all up hospital, medical and ancillary costs being somewhat similar to that expensed [sic] in February 2015.

1. In its written submissions dated 5 November 2019, Kone did not specifically address any of these claims, instead it maintained the position that Mrs Shipton had no ongoing disability attributable to the lift incident. It maintained that Mrs Shipton was not entitled to any damages for future out of pocket expenses.

1. In submissions dated 23 April 2020, Kone accepted that I have the power to amend my judgment of 3 April 2020 by considering Mrs Shipton’s claim for future out of pocket expenses. Kone also invited me to reconsider other aspects of my judgment and reasons. I decline that invitation. I intend only to address that matter which I overlooked in my initial judgment, being Mrs Shipton’s claim for future out of pocket expenses.

1. Kone accepted that a buffer of $6,000.00 is appropriate for a pain management program as recommended by Associate Prof Stark. This, in fact, is more than the amount claimed by Mrs Shipton, being $5,000.00. I will allow the sum of $5,000.00.

1. The claims made with respect to the reviews by a general practitioner, a neurosurgeon, a physiotherapist and a psychologist are modest and supported by the evidence. I will allow the amounts claimed.

1. While the cost of future medication cannot be exactly quantified, the amount sought by way of a buffer is modest. I will allow it.

1. The evidence of the prospect of future surgery is thin. I am not satisfied that there is any real prospect of further surgery and for that reason I decline to award a buffer.

1. The amounts I have allowed are:

(a)     review by a general practitioner   $   9,603.69

(b)     review by a neurosurgeon   $   2,223.00

(c)      review by a physiotherapist   $ 15,000.00

(d)     review by a psychologist   $    4,000.00

(e)     buffer for medication   $    5,000.00

(f)       buffer for pain management program                  $    5,000.00

Total:   $ 40,826.69

1. I therefore amend [171] and [227] of my judgment and reasons of 3 April 2020 by deleting the sum of “$2,140,246.48” and substituting this with “$2,181,073.17”.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: