Supreme Court New South Wales Medium Neutral Citation: Coulthurst v Miles [2020] NSWSC 1497 Hearing dates: 21 October 2020 Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) The hearing fixed to commence on 25 November 2020 is vacated. (2) Fix the matter for hearing with an estimate of five days commencing on 8 March 2021. (3) List for directions on 3 December 2020 to check readiness to proceed and fix a timetable for the further exchange of evidence. (4) The parties have liberty to restore on short notice given to my associate and to each other. (5) Costs of the motion to vacate and any costs thrown away by reason of the vacation of the hearing dates are the parties' costs in the cause. Catchwords: CIVIL PROCEDURE – hearings – adjournment – relevant factors – where questions relating to damages may not be resolved by the time for trial – where hearing vacated. Cases Cited: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Category: Procedural and other rulings Parties: Roger Coulthurst (Plaintiff) Neville Miles (Defendant) Representation: Counsel: M. Hammond (Plaintiff) J. Lee (Defendant) Solicitors: Bourke Love Lawyers (Plaintiff) McCabe Curwood (Defendants) File Number(s): 2017/383010 Judgment 1. In this matter, I am considering the defendant's application to vacate the three days set aside, commencing on 23 November 2020, for the assessment of damages. I do not propose to descend into the background of the case for the purpose of this decision. It suffices to say that the hearing of this matter, which is a claim for personal injuries, was expedited in August 2019 because of a deterioration in the plaintiff's medical condition. That deterioration was renal failure, said to be related to the consequences of a massive infection he suffered following surgery to repair significant fractures of his leg and knee, received when he fell from a ladder in the incident which gives rise to his cause of action. The specific reason for expedition, which order was made by my colleague, Fagan J, was that the evidence demonstrated that there is a significant risk of morbidity in cases of renal failure during the initial three month period of dialysis treatment. To put it in simple terms, this is because of the relative difficulty of stabilising a patient on a dialysis regime suitable for him or her. 2. For reasons which have been set out in previous judgments of mine, notwithstanding expedition, and notwithstanding the best efforts of the Court and the parties, the hearing became truncated, and due to a subsequent medical development, it became necessary to sever the issue of liability from the issue of damages in order to progress the matter in a meaningful way. Following a further hearing, consisting of addresses, in March, I gave judgment on liability on 2 June 2020 in favour of the plaintiff against the first defendant on the question of liability, with damages to be assessed without reduction for contributory negligence. The defendant has sought leave to appeal from that interim decision, and the Court of Appeal has fixed a concurrent hearing of the leave application and appeal for Friday 23 October 2020. Before the appeal was lodged, I had, in consultation with the parties, fixed the quantum hearing for 25 November 2020. 3. I should interpolate that the reason for severing the liability question from the trial was that while undergoing surgery to insert a prosthetic aortic valve in January, Mr Coulthurst suffered from what is a known complication of that type of surgery, or of surgery generally, a stroke. As I understand it, there will be no issue that the surgery or the stroke were consequences of any negligence on the part of the defendant, and it appears that the plaintiff's rehabilitation from the stroke has been very good. Although he has suffered great misfortune since his fall in 2016, he is an apparently resilient individual. 4. I have already indicated when this motion of adjournment was before me on 8 October, that I would not adjourn the matter because of the appeal. I was presumptuous enough to observe that the Court of Appeal, and indeed the President of the Court of Appeal, would regard it as undesirable that I should do so. That is not to say that their Honour's decision would necessarily be handed down by the time the hearing commences before me. Mr Lee of counsel, who appears for the defendant, properly raised the question of the potential for wasted costs. It would seem to me that were the damages hearing to proceed while the Court of Appeal was taking time for consideration, those costs would be the parties' costs in the cause in any event. If the appeal was entirely successful, and the judgment in favour of the plaintiff was vacated, and the Court of Appeal instead ordered judgment in favour of the defendant, the defendant would be entitled to recover his costs of the quantum hearing as part of the costs of the proceedings generally. 5. The issue that caused me to adjourn the hearing of the motion until today was the question of whether the matter was in fact ready to proceed. I must say that the solicitors for the parties, and counsel as well, have done a commendable job in attempting to bring the matter on for hearing in a satisfactory way. In particular I commend, if I may say so, Mr Brendan Bourke, the solicitor for the plaintiff, in the way he has diligently and energetically gone about seeking to make concessions, and obtain concessions, so that the true issues can be identified and the matter can proceed to finality, in so far as the parties are concerned, in the time set aside. He has also prepared a very useful, if I may say so, schedule of remaining issues, which seems to accord with the views of not only the plaintiff, but also of the defendant, in relation to the matters to be determined. 6. The question which yet hangs over whether the proceedings are in fact ready relates to the plaintiff's suitability for a renal transplant. The evidence before me gathered by the parties indicates that there are two proposals. The first proposal is that if assessed as suitable, a question to which I will return, the plaintiff will in the usual way go on the active list for receipt of a donor kidney from a recently deceased person. The evidence indicates that the waiting list is long, and although this is an issue which I cannot resolve today, the defendant's evidence is that if the plaintiff is assessed as suitable to go on the list, for reasons fully set out in the report of Associate Professor Wilson of 28 September 2020, he is unlikely to remain suitable, and it is unlikely that he will receive a donor kidney by that means. Associate Professor Wilson's opinion has to be given some weight in my present deliberations. 7. The second method of obtaining a donor kidney is if a suitable live match is identified. I interpolate, Professor Wilson has reservations about that matter as well, but as I understand his opinion, his reservations about that are less because, if donor and done are a suitable match, the transplant could take place sooner rather than later. A live potential donor has been identified in the form of the plaintiff's brother, Mr Bob Coulthurst. It is not known whether they are a match; and they need to be a perfect match. That matter is not known because the process of assessing Mr Bob Coulthurst is still ongoing, and on the evidence put before me today from Associate Professor Gracie, the plaintiff's qualified expert, and now his treating specialist, that process is unlikely to be complete for a month or so. That consideration makes it unlikely that by the time the matter comes on for hearing before me, the outcome of Mr Bob Coulthurst's assessment will be known, although I have no doubt that Mr Bourke, so far as it is open to him, will do what he can to expedite that matter. 8. The other outstanding matter of significance is that the process of assessing the suitability of the plaintiff is not yet complete either. Professor Gracie has assessed the plaintiff, albeit in the current climate, over the telephone from the point of view of a nephrologist, and has assessed him as suitable. However, Professor Gracie points out that he needs to be assessed by the surgical team, and the two surgeons involved have required further testing, specifically relating to the adequacy of the arterial and venous supply in the plaintiff's legs. Professor Gracie is confident, but acknowledges that the outcome will not be known for a few weeks. I infer this because he says that the plaintiff will be in all likelihood placed upon the active dead donor list in a few weeks, and the only outstanding matter is the surgical appraisal. That also leaves the question open as to whether that information will be known by the time the hearing before me concludes in November. 9. Both counsel, Mr Hammond and Mr Lee, accept that obviously, if there is a likelihood that Mr Coulthurst will receive a successful kidney transplant, that matter is highly relevant to the assessment of damages, both as to damages for non-economic loss and for future treatment and care. The law in this area often proceeds in circumstances of uncertainty, and the Court does its best to assess future probabilities, having regard to the principles discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. However, it is of concern to me that certainty is not far off, and that it seems likely that by the end of this year we will know for sure whether the plaintiff and Mr Bob Coulthurst are a suitable match. I am concerned that if I conduct a hearing in November and, given the complexity of the damages assessment in the case, no decision is made by me by the end of term, it will be necessary to re-open the hearing to receive evidence about the suitability of the brothers as a donee and donor respectively, and the effect that that matter will have upon the damages that will have already been fully addressed by the parties at the hearing. 10. Given the truncated history of this matter, I am a bit pessimistic about the hearing in November going off without a hitch. I am very conscious of the order for expedition. However, other events have overtaken it. I am also conscious of the consideration that the specific need for expedition, being the risk of morbidity associated with the initial phase of renal failure, appears to have passed, although the plaintiff's health is not good and he must remain at some risk, given the renal failure and other significant medical conditions. 11. I also take into account that he is anxious about the outcome of the case; and that is natural. It is well established that in making case management decisions, courts have to look beyond matters of hard practicality into the psychological stress that parties to litigation suffer during its currency and those psychological pressures are likely to be increased by any perceived delay or adjournment and I give full weight to the plaintiff's situation. 12. I also give weight to Mr Miles's situation. It is not appropriate for me to know whether or not he is insured, but even assuming that he is, he is involved in these proceedings too and doubtless, he is anxious about the outcome and is anxious that the lawyers acting for him be given a proper opportunity to put his side of the story as to damages properly. 13. Although I am keen for the matter to proceed, as I have expressed on previous occasions, I am of the view that it is not ready to proceed to a final hearing as to damages because of those critical outstanding questions about the suitability of each of the Coulthurst brothers as recipient and donor respectively and that that matter is a critical matter in relation to the proper assessment of quantum. 14. Not without great misgivings, I am of the view that the interests of justice as between both parties to the proceedings and the proper use of public resources, especially having regard to the consideration that the hearing in November might miscarry if these outstanding matters crystallise in the meantime, require me to exercise my discretion to adjourn the matter as requested by the defendant. 15. Accordingly, my orders are: 1. The hearing fixed to commence on 25 November 2020 is vacated. 2. Fix the matter for hearing with an estimate of five days commencing on 8 March 2021. 3. List for directions on 3 December 2020 to check readiness to proceed and fix a timetable for the further exchange of evidence. 4. The parties have liberty to restore on short notice given to my associate and to each other. 5. Costs of the motion to vacate and any costs thrown away by reason of the vacation of the hearing dates are the parties' costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2020