New South Wales Supreme Court CITATION : Hoban v New South Wales Land & Housing Corporation [2008] NSWSC 1121 HEARING DATE(S) : 24 October 2008 JUDGMENT DATE : 31 October 2008 JURISDICTION : Common Law JUDGMENT OF : McCallum J DECISION : (1) That liability and quantum be rejoined and that all issues in the proceedings be tried at the same time; (2) That the defendant pay the plaintiff's costs of the Notice of Motion. CATCHWORDS : Common law - order made previously by Judicial Registrar for separate determination of issues of liability and quantum of damages - application by plaintiff to rejoin liability and quantum - traumatic brain injury not stabilised - overriding purpose LEGISLATION CITED : Civil Procedure Act 2005 CATEGORY : Procedural and other rulings CASES CITED : Idoport Pty Ltd& Anor v National Australia Bank Ltd & 8 Ors; Idoport Pty Ltd & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Ltd "JMG" v National Australia Bank Ltd [15] [2000] NSWSC 1215 PARTIES : Anthony Hoban BHNF Cindy Rose Wozniak (Plaintiff) New South Wales Land & Housing Corporation (Defendant) FILE NUMBER(S) : SC 20266/06 COUNSEL : Mr D Davies SC / Mr R Weinstein (Plaintiff) Mr M Joseph SC (Defendant) SOLICITORS : Baker Ryrie Titmarsh (Plaintiff) McCabe Terrill Lawyers (Defendant) - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCALLUM J 31 OCTOBER 2008 20266/06 Anthony HOBAN BHNF Cindy Rose WOZNIAK v New South Wales Land & Housing Corporation JUDGMENT 1 HER HONOUR: Anthony Hoban fell out of the window of a third-story public housing apartment when he was 13 months old. He suffered severe traumatic brain injury. He has sued the New South Wales Land and Housing Corporation for negligence in respect of the design of the apartment and the Corporation's alleged failure to provide more appropriate accommodation for the family. 2 The proceedings were commenced in the District Court. On 7 April 2006 a Judicial Registrar of that Court ordered that the issues of liability and quantum of damages be determined separately. That order was made over the objection of the plaintiff. He is now 10 years old and requires ongoing treatment and rehabilitation. He has applied for an order that liability and quantum be rejoined and that all issues in the proceedings be tried at the same time. The application is opposed by the defendant. 3 Mr Joseph, who appeared for the defendant, submitted that the critical issue is to determine when the Court will be in the best position to do justice to the merits of the case. He said that liability is a discrete, short issue which is very controversial, while the damage suffered by the plaintiff has not yet stabilised and would best be assessed at a much later time. He referred to the expert medical opinion of Dr Adrienne Epps, who stated: "Anthony was only 13 months old at the time of the severe brain injury. An injury occurring at such a young age has a profound effect on skill acquisition, future development and learning. The effects of the injury will become more significant as Anthony grows and the full impact of the brain injury on Anthony's future functioning cannot be predicted for many years. As part of Anthony's follow up and treatment further clinical neuropsychology assessment will be required in order to plan for his educational support and educational intervention. This will assist with monitoring Anthony's learning and maturation of his frontal lobe systems and intellectual functioning. For the purposes of the court proceedings medicolegal neuropsychology assessment should be delayed until he is at least 16 years of age or older if there is clinical evidence of frontal systems impairment". 4 That opinion of Dr Epps appears to have been part of the material relied upon by the Judicial Registrar who made the order for separate hearings. Mr Joseph submitted that the decision of the Judicial Registrar should be regarded as the commencing point for the determination of the present application. He submitted that the evidence as it stood before me demonstrates no change from the position that the best time to assess the plaintiff's damage will be after adolescence, that is, at least six years hence. 5 The evidence relied on by the defendant in the application before me included the opinion of Dr Jayne Antony, Consultant Paediatric Neurologist. Dr Antony was asked whether, in her opinion, the plaintiff's condition has stabilised to a sufficient degree where it can be reasonably assessed by a Court. In her response dated 26 September 2008, Dr Antony said that the plaintiff has continued to have speech problems, behavioural difficulties, poor concentration and gross/fine motor clumsiness which, overall, she believes will remain all of his life. She stated that there may be some "quantitative improvements" as he grows older but that it is "extremely unlikely that any of them would normalise". Dr Antony continued: "Having said that, I do agree with Dr Epps that one cannot be absolutely certain about the end point with regard to vocational training, especially until he has gone through puberty and left the school situation. Therefore, even though one can predict that there will almost certainly be some problems, the details of those are not at all clear at this stage. I would, therefore, see some reason to believe that the final prognosis is not possible at the age of 10 years." 6 Mr Joseph's submission was also supported by the report of Dr Wayne Reid, Clinical Neuro-Psychologist, date 26 June 2008 in which he stated: "… it is felt that Anthony's condition despite the duration of time since his accident, has not stabilised as he has not reached full adult maturity. I am however of the opinion that considering the ongoing problems that he has with communication, frustration, academic skills and intellectual development, he will have ongoing severe problems affecting his personality development and capacity to form long-term close relationships and find open employment". 7 I accept that the medico-legal opinions of those experts support the proposition that the plaintiff's medical prognosis is not certain at this stage. In my view there is, however, a level of tension between the objectives of the medical profession and the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The ideal time to assess the plaintiff's damage and his prognosis from a medical perspective is plainly a compelling factor but it is not the only matter appropriately taken into account by the Court when exercising its powers to make orders for the conduct of the proceedings. 8 Mr Davies, who appeared with Mr Weinstein for the plaintiff, identified three reasons for rejoining liability and quantum. First, he submitted that, although an order has already been made for separate hearings, there is further evidence now available and that I should determine the application by reference to the principles applicable to applications for separate determination, unconstrained by the decision of the Judicial Registrar. He relied on the decision of Einstein J in Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 Ors; Idoport Pty Ltd & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Ltd "JMG" v National Australia Bank Ltd [15] [2000] NSWSC 1215 where the relevant principles are conveniently summarised. In particular, he submitted that the Court should begin with the proposition that it is ordinarily appropriate to have all issues in a proceeding heard and determined at the one time. 9 Mr Davies noted the principle at [7] in Idoport that separate determination may be appropriate where the resolution of the separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation. He submitted that, conversely, in the present case the rejoinder of liability and quantum carried with it a better prospect that the parties would be able to resolve these proceedings by mediation. 10 Mr Davies also referred to some of the matters identified in Idoport as indications against an order for separate determination, including the risk that the determination of the separate question, rather than finally resolving the proceedings, will merely result in an appeal (at [7](5)(c)). He submitted that was a likely outcome of any separate hearing in this case. He also noted the reference in Idoport to the experience of Courts which suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings but has the reverse effect, adding delay and expense to the resolution of the litigation (at [7](6)). 11 In summary, he submitted that the principles that ordinarily apply to the question of severance point, in this case, in favour of rejoinder. Mr Joseph did not dispute the principles outlined by Mr Davies but submitted that there are two considerations that take this case out of the ordinary. First, there is the fact that the plaintiff has suffered frontal lobe damage, which makes his prognosis uncertain at this stage. Secondly, Mr Joseph submitted that the liability issue is "very small and very controversial", accepting, however, that it is an issue in respect of which an appeal is likely. 12 I accept that the liability issues in this case are discrete and that their separate determination in favour of the defendant could result in a quicker, cheaper hearing. As noted by Mr Davies, however, if that were the guiding principle, all cases would have liability and quantum separated. 13 The second reason identified by Mr Davies for rejoining the issues was the plaintiff's ongoing treatment needs, which require resolution as soon as possible. Mr Davies relied on the evidence of Dr Epps, which indicates a need for speech therapy and the evidence of Dr Balandin, who recommends a laptop computer for the plaintiff to promote literacy and language at home and support from a counsellor to manage the plaintiff's challenging behaviour. He also relied on the evidence of Dr Smith, who agreed with the assessment of Dr Balandin. 14 The defendant's own expert, Dr Antony, supported the proposition that there is a need for more intensive speech therapy and also expressed agreement with the proposition that physical recreation would be helpful and may improve the plaintiff's self-esteem. Dr Wayne Reid, also one of the defendant's experts, expressed the opinion that the plaintiff will require ongoing assessments during his childhood to monitor his progress and plan his remediation program (at para 12.6 of the report dated 12 June 2003) and recommended the plaintiff have ongoing intensive management by a clinical psychologist for his behavioural problems and further rehabilitation with an occupational therapist and a speech therapist and a one to one tutor at school (para 12.8 of the report dated 26 June 2003). 15 In the light of that evidence from its own experts, the defendant has very fairly offered to pay for speech therapy for the plaintiff on credit, pending the final resolution of the proceedings. That, however, is plainly not the only treatment need the plaintiff presently has. Further, the offer was conditional upon the plaintiff's withdrawing the present application, which he was not prepared to do. 16 I am satisfied that the plaintiff has a substantial need for a variety of forms of treatment and that it would be preferable for him to have access to such treatment as soon as possible. 17 The final matter relied on by Mr Davies was that, on the evidence that has been served to date, the plaintiff's damages are quantifiable now. He accepted that the burden of the medico-legal opinions was that the plaintiff's prognosis is not certain but submitted that the identification of certainty is not the Court's task. He accepted that the Court could ideally wait until the plaintiff is 18 or 20 but asked, rhetorically, what would be the cost to the plaintiff's health if he is deprived of treatment in the meantime. 18 I have come to the view that liability and quantum should be rejoined. I accept the medico-legal opinions establish that the plaintiff's prognosis is not certain at this stage but the uncertainty is not such as to prevent the Court from quantifying the plaintiff's damages. The overriding consideration in this case, in my view, is the plaintiff's immediate need for treatment. It is of particular importance to him to have a resolution of the proceedings that is quick. Mr Joseph did not go so far as to say that it would not be just to determine quantum now, but said that now is not the best time to make that assessment. In my view, there is a risk that it would be unjust to defer the assessment of damage (assuming the plaintiff can establish liability) until at least six years from now. Further, I am not persuaded that separate hearings will ultimately be cheaper. 19 As to costs, Mr Joseph submitted that, if the plaintiff was successful, the costs should nonetheless be costs in the cause. He submitted that it was reasonable for the defendant to oppose the order sought, particularly having regard to the fact that an order for separate hearing was made in the proceedings two years ago. I accept that it was not unreasonable for the defendant to oppose the order. In my view, however, costs should follow the event as submitted by Mr Davies. 20 The parties both supported the suggestion of mediation in the event that the issues were rejoined. I will hear the parties as to the orders I should make to give effect to that proposal. 21 The orders are: (1) That liability and quantum be rejoined and that all issues in the proceedings be tried at the same time; (2) That the defendant pay the plaintiff's costs of the Notice of Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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