Szczepek v Prasad and & 3 Ors

[2000] NSWSC 857

CITATION:

Szczepek v Prasad & & 3 Ors [2000] NSWSC 857

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 10826/2000

HEARING DATE(S):

25 August 2000

JUDGMENT DATE:

29 August 2000

PARTIES :

Sarah Belinda Szczepek (also known as Sarah Belinda Lewis)
(Plaintiff)

Don Keshwa Prasad
(First Defendant)

Margaret Olive Prasad
(Second Defendant)

David O'Brien
(Third Defendant)

Jason Green
(Cross Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :

Mr Colin Cook
(Plaintiff)

Mr Simon A Kerr
(First & Second Defendants)

SOLICITORS:

Lyons & Lyons,
Bondi Junction
(Plaintiff)

Colin Biggers & Paisley
(First & Second Defendants)

CATCHWORDS:

Transfer from District Court

LEGISLATION CITED:

District Court Act - s 145

CASES CITED:

Delponte v Thiess Bros Pty Limited (1965) NSWR 1468 at 1469

DECISION:

See para 19

4

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 29 AUGUST 2000

10826/2000 - SARAH BELINDA SZCZEPEK (also known as
SARAH BELINDA LEWIS) v
DON KESHWA PRASAD & 3 ORS

JUDGMENT (Transfer from District Court)

1   MASTER: By summons filed 6 April 2000 the plaintiff seeks firstly, that District Court proceedings numbered 6356 of 1998 between Sarah Belinda Szczepek (also known as Sarah Belinda Lewis) as plaintiff and Don Keshwa Prasad, first defendant, Margaret Olive Prasad, second defendant, David O’Brien, third defendant and Jason Green the cross defendant be transferred from the District Court to the Supreme Court; and secondly, that the proceedings retain their priority as allocated by the District Court. The plaintiff relied on the affidavit of James William Lyons sworn 4 April 2000. The first defendant and second defendant did not consent to unlimited jurisdiction in the District Court and did not rely upon any affidavit evidence.

2   The first defendant is the registered proprietor of the property. It is alleged that either the first or second defendant was the owner and occupier of the property. It is alleged that the third defendant was the lessee of a house on the property and the occupier of the property. The statement of claim alleges that at about 10 pm on 25 November 1995 the plaintiff attended a party at the property. During the course of the party the plaintiff was standing on the balcony situated at the side of a house on the property and leaned against the balcony railing, when it collapsed causing the plaintiff to fall approximately 12 feet and sustain bodily injury. At the time the plaintiff was a school student and had just completed Year 11 at Kirrawee High School.

3 Section 145 of the District Court Act provides as follows:

“Transfer of proceedings to Supreme Court
(1) Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit.
(2) An action for damages in respect of personal injury or death (other than a motor accident claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.
(3) A motor accident claim may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance.”

4   The principles to be applied in transferring the matter from the District Court to the Supreme Court were expressed by Asprey J in Delponte v Thiess Bros Pty Limited (1965) NSWR 1468 at 1469. His Honour said:

“I think that if a person has, as the plaintiff alleges he has, a cause of action based upon reasonable grounds which would entitle him to be compensated beyond the statutory figure permitted in the District Court, then he should be, in ordinary circumstances, permitted to have that cause of action adjudicated upon by the appropriate tribunal.”

5   As a result of the fall, it is alleged that the plaintiff suffered a severe head injury which has resulted in minor brain damage. She suffered a crush fracture to the L3 and L4. A report of an MRI scan (report of Dr. Shnier of 11 February 2000) says that there is an annular tear at L3/4 and C4/5 and a narrowing and desiccation of the T1/2 intervertebral disc and a small disc protrusion at L3/4. She suffers from low level back pain.

6   The plaintiff had intended to complete her Higher School Certificate, but after the accident she was unable to do so. While in Year 11 she was employed as a part time kitchen hand for an average of 15 hours per week, and earned $132.56 net per week, although at the time of the accident she had ceased this employment in order to concentrate on her Higher School Certificate studies.

7   An economic loss evaluation report for the plaintiff, prepared by Walter & Turnbull dated 28 January 2000, assessed the plaintiff’s future economic loss at $717,432 on the basis that the plaintiff would have followed a career as an architect or alternatively as a draftsperson. As an architect, it estimates that the plaintiff’s future economic loss is $1,774.347 and as a draftsperson her future economic loss is assessed at $974,637. The salary of an architect ranges from $25,166 to $30,594 in the first four years, and $50,000 to $60,000 after five years. The draftsperson earns after seven years about $34,887 per annum gross ($671 gross per week). The plaintiff may be found at trial to have been capable of earning more than the salary of a draftsman if she had not been involved in the accident. There is difficulty with those estimated figures because on the plaintiff’s medical evidence she has a residual earning capacity, yet no allowance is made for this.

8   The second difficulty with those figures is that there is contrary evidence in relation to the plaintiff pursuing either of these vocations. The report of Trevor Hawkins Consulting Pty Ltd, a vocational and rehabilitation psychological service, of 9 March 2000, records that the plaintiff undertook some work experience whilst in year 10 at high school in an architectural firm. At the time she was interested in a career in the area, however she was told by a trainee at the firm that jobs were hard to come by and hence she discarded the idea of drafting or architecture. Elsewhere it is stated that the plaintiff undertook business studies at school in order to work in the field of commerce or business. It is understandable that the plaintiff did not have a firm view of the career she wished to pursue upon leaving school, and that is taken into account.

9   Since the accident, in 1997 the plaintiff worked in a sandwich shop during the lunch hour for 3 hours, two to three days per week, and went okay. In 1998 she had a number of jobs, namely as a factory hand in a screen printing factory. She left this job because of back pain. She also was employed as a receptionist/sales assistant at a take-away dinner shop. She took orders for pre-packed dinners and then served customers when they came to collect their meals. She worked there for three nights a week but had to leave when she moved house as the distance was too far to travel and the boss (who was a friend) was unable to continue to pick her up as she lived out of the way. The business also went into liquidation soon after she left. The third job she undertook in 1998 was as a mail order clerk at a vitamin factory within walking distance of her current home. Again she ceased this work due to back pain.

10   It is Trevor Hawkins’ opinion that the plaintiff is motivated and confident of succeeding in vocational retraining over the next two years and of entering the labour market in a skilled capacity. He records that it has to be said that she is looking initially at part-time work as she is unsure if she will be able to physically cope with any more than this. Apparently the plaintiff is also contemplating opening up a stall at the local markets to sell her soaps and essential oils.

11   The plaintiff has undergone psychometric testing. In 1997 these tests showed that the plaintiff’s verbal short term and long term memory had been severely impaired. By 1998 the verbal short term memory had improved to borderline impairment, and verbal long term memory to average. However, as a result of the accident the plaintiff complains that her working capacity will be curtailed because she has reduced sitting tolerance of 2 hours maximum, reduced standing tolerance of 30 minutes maximum, reduced walking tolerance of 60 minutes maximum (problems with stairs, gradients, hills etc), reduced lifting tolerance to 4 kg, reduced range of movement in cervical, thoracic and lumbar function, headache almost on a daily basis, concentration and memory difficulties, chronic pain, depression associated with her altered circumstances, and mild tinnitus.

12   From the reports tendered, the most likely occupation that the plaintiff can undertake from a cognitive perspective, is formal retraining in graphic design (or some related field) at the technical college level, especially given that she is motivated to move into this area. She could advance to a University level by cognitive ability, but may be deferred on physical grounds, until preliminary training has occurred. However, on a physical basis, it has been pointed out that the critical physical demands involved in graphic design may place considerable strain on Ms Szczepek’s neck, in addition to which long periods of sitting are required. It is considered that maintenance of such static postures, based on recent medical findings, may be contraindicated. Therefore, and even with assistance and modification, she may be limited to part-time work only.
13   Doing the best I can and making an allowance for residual capacity of $250 gross per week, the plaintiff will lose $421 gross per week for 44 years. This equates to $350.00 nett per week by 3% multiplier 1284.5, which equates to $449,515 for future economic loss, which less 15% for vicissitudes leaves $382,138.

14   Additionally, the plaintiff claims damages under Griffiths v Kirkemeyer in the sum of $271,000 being 7 hours domestic assistance per week for 62 years. On 9 February 1999 Ms Halcrow reported that should the plaintiff choose to live alone, she would require assistance with 3 hours per week housework assistance for heavy duties, 1.5 hours per week assistance with shopping, 1 hour per week with laundry assistance, 1.5 hours estimated for lawn mowing, gardening maintenance etc., assistance with child care for first three years of child’s life, and 30 minutes meal preparation per day in line with degeneration.

15   In relation to Griffiths v Kirkemeyer, there is a further report by Lynne Hailey of Absolute Outcomes dated 5 April 2000 wherein she states that in her present arrangement, where the plaintiff is living with 2 friends, it was not considered that the plaintiff needs anything else other than transport. However, it must be realised that she will not always live with friends, or have the same level of understanding or support. Therefore recommendations made by Jean Halcrow should be given consideration with regard to the plaintiff eventually living alone, and the probability of ongoing degeneration having a corresponding effect on her functional capacity. For the purposes of the application I accept that the plaintiff may choose to reside by herself, and may require 7 hours domestic assistance as outlined above.

16   To this amount must be added general damages, past economic loss, a fairly modest amount for future equipment needs to allow the plaintiff to obtain her driver’s licence and to be able to drive, loss of superannuation benefits, interest and the like. Further, it should be taken into account that her physical condition is likely to worsen. Currently she is a young woman of only 21 years of age. Dr Weisz, an orthopaedic surgeon, in his report of 21 March 2000, stated that in his view her complaints are reasonable and her restrictions in physical activities are well substantiated by the following pathologies: (a) cervical disc disruption which will gradually degenerate prematurely as its natural history dictates (this pathology explains her persisting neck pain), (b) lumbar spine disc injuries which also are painful and expected to degenerate prematurely, and (c) compression fractures, with residual deformities and lack of muscular tonus, which most probably contributed to the increase in her scoliotic deformity.

17   After taking all these matters into account, I am satisfied that it is likely that if the plaintiff is successful her damages will be likely to exceed $750,000. Accordingly this matter should be transferred from the District Court to this court.

18   Costs are discretionary. Costs should follow the event; the first and second defendants should pay the plaintiff’s costs.

19   The orders that I make are:

1. That District Court proceedings numbered 6356/98 between the plaintiff and Don Keshwa Prasad, first defendant, Margaret Olive Prasad, second defendant, David O’Brien, third defendant, and Jason Green, the cross defendant, be transferred from the District Court to the Supreme Court.

2. The first and second defendants to pay the plaintiff’s costs of the motion.
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Last Modified: 09/27/2000