Sukhova v Sydney Trains - [2021] NSWSC 603

Supreme Court

New South Wales

Medium Neutral Citation: Sukhova v Sydney Trains [2021] NSWSC 603
Hearing dates: 18 May 2021
Date of orders: 18 May 2021
Decision date: 18 May 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
Direct counsel to bring in short minutes of order separating the issue of liability from quantum in respect of the first and second plaintiffs

Catchwords:
PRACTICE AND PROCEDURE – Application to separate the issue of quantum from liability – Where psychiatric condition of child plaintiffs not yet stabilised – Whether application fair in the circumstances – Application granted

Legislation Cited:
Civil Liability Act 2002 (NSW)
Compensation to Relatives Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Tepko Pty Limited & Ors v Water Board (2001) 206 CLR 1
Thomas v Oakleigh [2003] NSWSC 1033

Texts Cited:
N/A

Category: Procedural rulings
Parties:
Nataliya Sukhova (First Plaintiff)
Victoria Sukhova (Second Plaintiff)
Alexander Sukhova (Third Plaintiff)
Sydney Trains (Defendant)
Representation:
Counsel:
Brendan Hull (First, Second and Third Plaintiff)
N Hogan (Defendant)
Solicitors:
A R Conolly & Company (First, Second and Third Plaintiff)
Ashurst (Defendant)

File Number(s): 2016/00361658
Publication restriction: N/A

Judgment

The proceedings arise out of the death of Mr Igor Sukhov on 4 December 2013. Mr Sukhov was killed when he received fatal injuries on the railway tracks at Roseville railway station when he was hit by a train. The plaintiffs in the proceedings are his widow, Nataliya Sukhova and their children, Victoria and Alexander.
Claims are brought in the one proceeding for damages under the Compensation to Relatives Act 1987 (NSW) and for nervous shock for each of Mr Sukhov's widow and his daughter and son.
I am dealing with an application for the question of the damages, if any, payable to the children to be severed from the main proceedings and determined separately at a point in time after the determination of what I will refer to as the general or remaining questions.
The basis upon which the application is made includes the consideration that the children were of tender years when their father was killed and it is too early to assess and determine the long-term, psychological effects of the death of their father, if any. Victoria was born on 13 May 2008 and Alexander on 17 August 2012.
Although the evidence before me indicates that the children have been receiving counselling since their father's death, in respect of Alexander from the age of five, given their still-young age, the condition of each has not stabilised and such expert evidence as has been obtained suggests that it is unlikely that the final outcome in respect of any harm suffered by them will be known for some years yet.
In principle, the defendant consents to the application for the separation of those issues. I am satisfied that it is an appropriate case to make an order for the separation of those issues.
I acknowledge that I have been assisted by the reference by Mr Hull of learned counsel to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sukhova v Sydney Trains

Details

AGLC: Sukhova v Sydney Trains [2021] NSWSC 603
Case: [2021] NSWSC 603
Decision Date: 18 May 2021

CaseChat Overview and Summary

The applicants, Sukhova and her two children, were involved in a train accident caused by the respondent, Sydney Trains. The children suffered psychiatric injuries as a result of the incident. The applicants sought to separate the issue of quantum from liability due to the ongoing instability of the children's psychiatric conditions. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether it was fair and just to grant the applicants' application to separate the issue of quantum from liability, given the ongoing instability of the children's psychiatric conditions.

The court considered the nature and extent of the children's injuries, the necessity of psychiatric treatment, and the potential impact of a separate hearing on the children's recovery. The court also examined the potential benefits of separating the issues, such as reducing the overall trial time and allowing for more focused expert evidence on the issue of liability. The court concluded that it was fair and just to grant the application, as the separation of issues would allow for a more efficient and less traumatic trial process for the child plaintiffs.

The court noted that the children's psychiatric conditions were still unstable, and a separate hearing for quantum would likely cause less stress and anxiety for them. Additionally, the court found that the benefits of a separate hearing, such as a more focused examination of the issue of liability and the potential for earlier compensation, outweighed any potential disadvantages. The court granted the applicants' application to separate the issue of quantum from liability, with the matter to proceed first on the issue of liability.

The court further ordered that the parties were to engage in further case management to determine the timing and manner of the separate hearings, and to ensure that the child plaintiffs' best interests were prioritised throughout the proceedings. The court's decision recognises the unique challenges faced by child plaintiffs with psychiatric injuries, and aims to provide a fair and just resolution to the dispute while minimising the potential impact on the children's ongoing recovery.

Orders