LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 411

New South Wales Supreme Court

CITATION : LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 411 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC No. 11135 of 1990 HEARING DATE(S) : 20.7.1999 JUDGMENT DATE : 19 May 2000

PARTIES : KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Greg James J at 1

COUNSEL : Plaintiff: J. Coombs, QC./W. Washington/P.J. Doherty Defendant: D. Nock, SC./S. Torrington SOLICITORS : Plaintiff: Bond & Bond Defendant: Hunt & Hunt CATCHWORDS : Common law action for damages - application for trial of all issues without a jury - causation and estoppel questions - complex medical issues and prospect of complex legal questions - criteria for decision under s.89(1) of the Supreme Court Act. LEGISLATION CITED : Workers' Compensation Act 1926 Workers' Compensation Act 1987 Patten v. Buchanan Borehole Collieries Pty. Limited (1993) 178 CLR 14 CASES CITED : Pambula District Hospital v. Herriman (1988) 14 NSWLR 387 Mayne Nickless Limited t/as IPEC Transport Group v. Dwight (Court of Appeal, unreported 23 October 1997) DECISION : All issues in action to be tried without jury.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. 11135 of 1990

GREG JAMES, J.

FRIDAY 19 MAY 2000

KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT (On application to dispense with a jury)

1 HIS HONOUR: In these proceedings, the plaintiff seeks damages for injuries asserted to have been incurred on 18 September 1986 in the course of his employment with the defendant which are alleged to have been occasioned by negligent breach by the defendant of its duty as an employer, in particular, in respect of the provision of a safe system of work for connecting trailers to trucks. Liability is denied. 2 Although the proceedings were for trial with a jury, the plaintiff now applies that the jury be dispensed with. To consider that application, it is necessary I have regard to the matters expected to be raised at trial. 3 The defence throws in issue all matters except the employment by the defendant of the plaintiff as a labourer and asserts in addition payments under the Workers' Compensation Acts for which the defendant claims the statutory defences provided under s.63(5) of the Workers' Compensation Act 1926 and pursuant to Schedule 6, Part 14, cl.1(2) of the Workers' Compensation Act 1987. 4 The injuries particularised are a lumbar spinal injury with disc disruption at the L4/L5 level and involving internal disc disruption impinging on the left L5 nerve root. These injuries, it is alleged, produced disabilities so that the plaintiff is unable to work as a labourer and unable to work at all in any occupation for which he was suitably qualified or experienced. Other disabilities severely affecting the plaintiff's physical ability to live a normal life are also alleged. 5 Substantial out of pocket expenses are asserted to have been incurred and the claim involves a loss of earnings after the accident and a total loss of earning capacity from the 2 December 1994 to date and continuing until 26 November 2015 when the plaintiff will attain the age of 65 years, he having been born on 26 November 1950. 6 The plaintiff also claims for other matters including interest, loss of superannuation benefits, reimbursement for services provided by members of the family and friends, domestic assistance for the future and an inability to meet the interest component of existing loans. The sum claimed overall is a very large one. 7 Although the issues of fact as to the occurrence of the accident, of which I was informed at the outset of the matter were within a narrow compass, it became apparent when a chronology, Exhibit E, was provided to me that some considerable factual complexity was involved on the issue of causation, in particular because of what occurred in a workers compensation claim by the plaintiff to which I will later refer and because of the accounts given of the accident and symptoms on the occasion of attendances of the plaintiff on various doctors. The opinions of those doctors and the opinions of various other doctors given in relation to those opinions, differed and did so in a way which might, to some extent, be explicable on the basis of those differing accounts and partly by differing views held by differing schools of experts on the aetiology of back conditions generally 8 It became apparent that the medical evidence on the issue at the trial would represent two quite opposed views both as to the individual case and as to the causation of back conditions similar to that asserted to have been caused here. The expert witnesses appear to come from two schools each of diametrically opposed views on aetiology. 9 On one view, the plaintiff's disabilities were most substantial and are continuing. On the other, they were, at most, of limited duration and, at most, of merely historical effect by the time of the plaintiff suffering shoulder injuries in a traffic accident on 22 September 1989. 10 Further, I was informed there had been a determination by her Honour Judge Quirk in the Compensation Court on 9 November 1998 in respect of a claim for compensation under s.66 of the Workers' Compensation Act 1987 in respect of that accident since it occurred to the plaintiff during a journey to work in which the vehicle upon which he was riding collided with a bus causing damage to the right side of his body, broken ribs and continuing disability to his right arm. Her Honour made orders under ss.66 and 67 for payments of lump sum compensation and orders for interest, costs and s.60 expenses. The award and the reasons for judgment were before me on the application and were respectively, Exhibits 2 and 3. 11 I was informed that an issue which would arise in the present proceedings was the effect of that accident and of her Honour's decision as raising an estoppel, upon the claim made in the present proceedings. It will be contended that the effects of this accident caused or substantially caused the bulk of the loss claimed by the plaintiff or that the decision binds the plaintiff so that it is not open to him to contend otherwise.