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. 12 I was informed that the effect of her Honour's decision would bear heavily on whatever findings might be made as to the extent and cause of the plaintiff's disabilities after his shoulder accident and that the determination of the extent and cause of those disabilities would involve complex questions of law. Further, that this issue would involve, to some extent, attempting to predict or have regard to what possible determinations a court would have made had certain applications been brought in the Compensation Court in respect of the injuries. In addition or alternatively, it was asserted that the plaintiff's evidence on the application would affect both his general credit and in particular the attribution of his disabilities to the incident, the subject of these proceedings, rather than that which gave rise to the proceedings before Judge Quirk. The transcript of those proceedings was referred to and it was common ground it might go into evidence at the trial. 13 By consent, in addition to the other evidence, I was referred to material by counsel from the bar table and a legal opinion, marked Exhibit 1, was received in evidence. The precise nature of the issues raised is not made clear by that opinion but it seems that questions of fact and law will be raised as to what are both the legal and factual consequences of her Honour's decision for the plaintiff's employability, a matter to be determined in the light of the conflicting medical evidence. 14 It was put to me that it would be necessary to investigate with the medical practitioners the relative importance of the differing disabilities in the light of the findings of the Compensation Court as might impinge upon the present proceedings. 15 Interestingly, the matter was originally put to me as though there would not be any question of estoppel. It became apparent, however, that there would be, that the nature and extent of the estoppel would be in question and that it might be necessary to instruct the jury in matters of some considerable sophistication and complexity concerning how they should reason in the light of what appeared to be likely to be established as an estoppel. In considering the medical evidence, it was submitted that there was a high risk of confusion on the most important question of causation and that the analysis and questions involved were peculiarly ill adapted to determination by a jury. 16 My attention was drawn to ss.86 and 89 of the Supreme Court Act and in particular to Patten v. Buchanan Borehole Collieries Pty. Limited (1993) 178 CLR 14 at 28; and Pambula District Hospital v. Herriman (1988) 14 NSWLR 387 concerning the discretion conferred on me by s.89(1) of that Act to dispense with the jury and myself to try any or all issues of fact. The application raises questions which do not appear to be finally or satisfactorily resolved by the Court of Appeal in Mayne Nickless Limited (t/as) IPEC Transport Group v. Dwight (unreported 23 October 1997). 17 The argument put on behalf of the defendant in support of the submission that the jury should be retained relied almost entirely upon the general proposition that the defendant was entitled to its general common law right to have the issues of fact determined by the jury without any suggestion particular to this case that any issue was particularly or peculiarly appropriate for a jury. It was not suggested that any complication to the defendant's position would arise in the event that the matter were not determined by a jury and it was conceded that the estoppel or estoppels that might arise and the effect of the determination of the Compensation Court, which the defendant was raising, involved matters of considerable complexity which might result in the necessity to embark on some quite sophisticated reasoning and discussion including extended argument in the absence of the jury. 18 I noted particularly that it was the defendant who was responsible for the late raising of these matters, which although not originally (or indeed ever) pleaded, were notified to the plaintiff's legal representatives in sufficient time for the plaintiff to meet them without needing to vacate the hearing, even though from time to time an adjournment might be needed. However, by reason particularly of these matters, it was no longer possible to give a clear estimate of the duration of the case and thus the time for which the jurors might have to hold themselves available. Much of the proceedings, particularly in determining the questions of law, would also have to be conducted in the absence of the jury so that the trial would be considerably disrupted and their appreciation of the evidence unavoidably and incurably affected. 19 In the light of the complexity of the matters that it was proposed would be raised and since to a considerable extent still the issues were not clearly defined and appeared likely to require considerable further refinement in argument, I concluded there was also a real risk of having to discharge a jury and recommence, with attendant delays. Further, that a continuation before a judge alone as occurred in Patten (supra) or the course taken by Studdert, J. in Mayne Nickless (supra) appeared most unsatisfactory. 20 Both parties submitted that the matters raised would permeate the whole conduct of the proceedings and affect almost all the issues of fact in the trial. 21 I therefore considered that for those reasons I should order that all of the issues of fact be tried without a jury and so ordered, reserving these, my reasons, which I now publish. Last Modified: 09/25/2000 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.