Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623

New South Wales Supreme Court

CITATION : Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623 HEARING DATE(S) : 04/07/03 JUDGMENT DATE : 11 July 2003

JUDGMENT OF : Shaw J DECISION : (1) Order separation of issues of liability and quantification of damages; (2) Costs to be costs in the cause.

CATCHWORDS : Practice and procedure - whether separation of issues of liability and quantification of damages should be ordered - relevant principles Coenen v Payne [1974] 2 All ER 1109; Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215; CASES CITED : Murphy v Chow [2003] NSWSC 303; Perre v Arpand Pty Ltd (1999) 198 CLR 180; Richard v Rahilly [2002] NSWSC 943; Tepko Pty Ltd v The Waterboard (2001) 206 CLR 1 PARTIES : Anabella Arguis - Plaintiff Southern Sydney Area Health Service - Defendant FILE NUMBER(S) : SC 20386/02 COUNSEL : P See - Plaintiff J Sandford - Defendant SOLICITORS : Teakle Ormsby Conn Lawyers - Plaintiff Frances Allpress Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Shaw J

11 July 2003

20386 of 2002 Anabella Aguis by her tutor Gail Margaret Chalmers (Plaintiff)

v

Southern Sydney Area Health Service (Defendant)

JUDGMENT 1 Shaw J: This is a notice of motion filed by the plaintiff seeking an order that the issues of liability and quantum in this matter be heard separately. 2 The amended statement of claim filed by the plaintiff on 15 November 2002 alleges that the defendant had the care, control and management of St George Hospital at Kogarah and that the plaintiff's mother attended the anti-natal clinic at that hospital during her pregnancy in 2000-2001 and that there was a contract between the defendant, the plaintiff and the plaintiff's mother that the defendant would provide treatment to the plaintiff and the plaintiff's mother regarding her birth. 3 It is further said that it was an implied term of that contract that the defendant would use all necessary care to the plaintiff and the plaintiff's mother. 4 It is alleged that on 19 April 2001 the plaintiff was born but at that birth suffered injuries including right shoulder dystocia – Erb's palsy. It is said that this injury was caused by the defendant's negligence and that negligence was a breach of contract on the part of the defendant. 5 The plaintiff is presently about two and a half years old. Counsel for the plaintiff asserts that it is difficult at this time to determine with precision the extent of her injuries, assuming negligence or contractual breach can be proved against the defendant. 6 The evidence before the Court tendered on the notice of motion indicates that, at birth, on 19 April 2001, the plaintiff suffered an injury to her right arm. There was an operation performed in October 2001 to remove tendons to the plaintiff's legs and graft them into her right arm to improve function. The uncontested evidence is that the plaintiff has undergone extensive therapy at Westmead Hospital and performs exercise with her mother. Evidence has been admitted, as would otherwise be axiomatic, that the plaintiff is unable to express her feelings with respect to the problems she faces in relation to her right arm. 7 It is in these circumstances that the Court must decide whether the questions of liability against the defendant, and consequently quantum of damage, should be bifurcated. 8 The prima facie position is that in an action brought in this Court, all issues should be resolved at the one time with a view to giving effect to the spirit and intention of the Supreme Court Rules to facilitate an expeditious resolution of the proceeding. 9 Notwithstanding the ordinary principle, it is the case that it is not infrequent in cases involving personal injury or professional negligence for the determination of liability to be adjudicated prior to a subsequent proceedings, in the absence of resolution between the parties to determine a quantum of damages. 10 This is often a convenient course, because if there is no liability then the defendant is saved the cost and expense of dealing with evidence of and submissions on the level of damage. On the other hand, a finding of liability in favour of the plaintiff may encourage productive settlement discussions or some form of alternative dispute resolution. 11 What principles should the Court apply in exercising a discretion as to whether the issues of liability and damage should be separated? 12 One interesting judgment is that of the English Court of Appeal in Coenen v Payne [1974] 2 All ER 1109. That was a case in which a veterinary surgeon was injured in a motor vehicle collision. It was an action for damages in negligence in which the plaintiff alleged loss of earning both for a specified period of three months and in the future. The primary judge refused an application to deal separately with the question of liability and damage. However, the Court of Appeal overturned the trial judge's decision and determined that, having regard to the time and expense involved in trying the issue of damages, the case was a proper one for separate trials. Lord Denning, MR, acknowledged that the normal method was to try both issues at the same time (at 1011-1012). However, the Master of the Rolls said (at 1112): In future the courts should be more ready to grant separate trials than they used to do. The normal practice should still be that liability and damages should be heard together but the courts should be ready to order separate trials wherever it is just and convenient to do so. 13 Stamp LJ distinguished earlier cases which applied the procedural power of severance only in exceptional cases (see, for example, Jessel MR in Piercey v Young (1880) 15 Ch D 475 at 480 and Emma Silver Mining Co v Grant (1879) 11 Ch D 918 at 927) saying that (at 1113): …I cannot accept that the remarks of Jessel MR were directed in the least degree to cases where what was sought to be dealt with as two separate issues were liability and the ascertainment of quantum of damages. What he was speaking of, I think, was a process by which one issue of facts is to be tried in advance of another issue of fact both of which have to be determined in favour of the plaintiff before he can get judgment for damages at all. 14 Stevenson LJ said (at 1114): If the court thinks it just and convenient to order separate trials for separate issues or to give judgment for damages to be assessed by another court the court should do so without treating ancient decisions as limiting its powers. In a personal injuries case the courts will not depart from the normal practice except for good reason… 15 In Idoport Pty Ltd v National Australia Bank Ltd and Ors [2000] NSWSC 1215, Einstein J helpfully crystallised the relevant principles in these terms at [7]: Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, I proceed on the basis of the following principles: