Sukhova v Sydney Trains [2021] NSWSC 603

Sukhova v Sydney Trains [2021] NSWSC 603

Given the evidence that the child plaintiffs' psychological conditions had not stabilised and that the final outcome of any harm would not be known for some years, and because there was no real prospect that severing their nervous-shock damages issues would complicate or unjustly prolong the proceedings, it was appropriate to separate those issues provided the order made clear what was and was not included in the separated damages question.

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Common Law Damages Proceeding Under the Compensation to Relatives Act 1987 (nsw) and for Nervous Shock / Procedural Application to Separate the Issue of Damages Payable to the Children From the Main Proceedings
Outcome
Application granted in principle; counsel directed to bring in short minutes of order separating liability from quantum in respect of the first and second plaintiffs.
Legal Topics
['separate Determination of Issues' 'separation of Liability and Quantum' 'nervous Shock' 'pure Mental Harm' 'recognised Psychiatric Illness' 'contributory Negligence']
['practice and Procedure' 'torts' 'civil Liability'] ['separate Determination of Issues' 'separation of Liability and Quantum' 'nervous Shock' 'pure Mental Harm' 'recognised Psychiatric Illness' 'contributory Negligence']

Case Brief

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Procedural Posture

Common Law Damages Proceeding Under the Compensation to Relatives Act 1987 (nsw) and for Nervous Shock / Procedural Application to Separate the Issue of Damages Payable to the Children From the Main Proceedings

Legal Issues

  1. 1 ['Whether the question of damages, if any, payable to the child plaintiffs should be severed from the main proceedings and determined separately after the general or remaining questions.' "Whether separation was appropriate where the child plaintiffs' psychological conditions had not stabilised and the long-term effects of their father's death could not yet be assessed." 'How to frame the separate issue so that the damages question includes whether each child suffered a recognised psychiatric illness but excludes the foreseeability question under s 32 of the Civil Liability Act 2002 (NSW).']

Ratio Decidendi

Given the evidence that the child plaintiffs' psychological conditions had not stabilised and that the final outcome of any harm would not be known for some years, and because there was no real prospect that severing their nervous-shock damages issues would complicate or unjustly prolong the proceedings, it was appropriate to separate those issues provided the order made clear what was and was not included in the separated damages question.

Court Disposition

Application granted in principle; counsel directed to bring in short minutes of order separating liability from quantum in respect of the first and second plaintiffs.

Orders

  • ['Counsel are to bring in short minutes of order giving effect to the decision.' 'The short minutes of order may be forwarded to the Associate by e-mail without the need for any further attendance by counsel.']