Wereta v The Nominal Defendant [2000] NSWSC 234

New South Wales Supreme Court

CITATION : Wereta v The Nominal Defendant [2000] NSWSC 234 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20922/97 HEARING DATE(S) : 23 March 2000 JUDGMENT DATE : 29 March 2000

Douglas Frederick Wereta by his tutor Joyce Wereta (Plaintiff) PARTIES : The Nominal Defendant (Defendant) JUDGMENT OF : Master Harrison

Mr J McIntyre SC with Mr F Tuscano COUNSEL : (Plaintiff)

Mr J D Hislop QC (Defendant) Stacks - The Law Firm with Goudkamp Mahony (Plaintiff) SOLICITORS : Ms J Snell Grahame Goldberg Partners (Defendant)

LEGISLATION CITED : Supreme Court Rules - Part 31 r 2 Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] 1 Ch 88; [1961] 1 Ch 375 CASES CITED : Yeoman Credit Ltd v Latter [1961] 1 WLR 828, 835 Everett v Ribband [1952] 1 KB 122 CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606 DECISION : See para 17

8

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 29 MARCH 2000

20922/97 - DOUGLAS FREDERICK WERETA by his tutor JOYCE WERETA v THE NOMINAL DEFENDANT

JUDGMENT (Separate trial on liability)

1 MASTER: By notice of motion filed 26 October 1999 the defendant seeks leave to file and serve this notice of motion after the compliance date and that the hearing of liability and quantum be severed and the issue of liability be listed for hearing in Sydney and placed in the holding list to await allocation of a hearing date. The defendant relied on two affidavits of Josephine Mary Snell sworn 26 October 1999 and 25 January 2000. The plaintiff relied on the affidavit of Ian Kenneth Chipchase sworn 28 October 1999 and 10 December 1999. 2 On 16 March 1980 the plaintiff alleges that he suffered injuries whilst travelling as a passenger in a motor vehicle which left the highway about 15 kilometres from Wilcannia New South Wales. It is alleged that the driver of the motor vehicle swerved to avoid a kangaroo. The plaintiff suffered serious injuries including significant brain injury. After the accident the plaintiff was initially taken to Wilcannia hospital where he was a patient for a short time until his transfer on the same day to Broken Hill hospital from where he was again transferred on the same day to Royal Adelaide hospital. The plaintiff remained in the Royal Adelaide hospital from between 16 March 1980 and 15 August 1980. He had subsequent admissions to hospital between 20 November 1980 and 12 May 1981. 3 The plaintiff was born on 3 February 1946 and is now 54 years of age. He resides in Napier, New Zealand and has lived in that area for the whole of his life apart from the periods, including the time of the accident, when he resided in Australia for the purpose of carrying out his occupation as a shearer. In late 1981 the plaintiff returned to New Zealand. He had been cared for in Adelaide apart from his time in hospital by his de facto partner Kerry Humphreys, but this relationship broke down and the plaintiff return to New Zealand to reside with his aunt in Napier. This arrangement continued until 1995 when the plaintiff's aunt died. The plaintiff continued to live in his aunt's house and was cared for by his cousin Tracey. He then spent a few months with his brother Jeffray and finally moved in with his mother Joyce Wereta in 1996. Since 1996 the plaintiff has been cared for by his mother and brother and his wife Janet. 4 The plaintiff's tutor says that the plaintiff would have great difficulty travelling to Australia. He would need to travel with at least one attendant and would quite likely become confused and disorientated. The plaintiff has not travelled other than short distances within New Zealand since returning home in 1981. The plaintiff's counsel submitted that the plaintiff's evidence would be extremely difficult to present and although he is able to give some meaningful evidence for a short period of time he then requires a rest, and realistically it would probably take 3 to 4 hours to present his evidence. The plaintiff's counsel submitted that an approximate total of 47 hours of evidence would be needed for the plaintiff's witnesses to give evidence. Enquiries have been made of Integrated Vision Pty Limited, a major supplier of video links, as to the possibility of taking some or all of the evidence located in New Zealand by video link. A direct video link to Napier is not possible and the link would have to be made to Gisborne or Rotorua. Rotorua is about 3 hours from Napier and Gisborne is further away again. 5 Since the plaintiff's return to New Zealand, he had been treated at Napier hospital, Wellington hospital, Hastings hospital and Palmerston North hospital. The plaintiff has had treatment from a number of specialists for a wide range of medical complications and specific injuries. 6 The defendant seeks that the issue of liability be determined separately. Part 31 r 2(a) of the Supreme Court Rules (SCR) provides: "2. The Court may make orders for - (a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 7 In Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93, Lord Denning (with whom Diplock and Sachs LJJ agreed at p 98) overruled the decisions in Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] 1 Ch 88; [1961] 1 Ch 375, 396); and Yeoman Credit Ltd v Latter [1961] 1 WLR 828, 835 they adopted the rule stated by Romer LJ in Everett v Ribbands [1952] 1 KB 112. This rule is: 'Where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings, or very shortly after the close of pleadings.' 8 Lord Denning also stated that in many cases the facts and law are so mixed up that it is very undesirable to have a preliminary issue and that he always liked to know the facts before deciding the law.