Hume v Patterson [2011] NSWSC 439

Supreme Court New South Wales

Medium Neutral Citation: Hume v Patterson [2011] NSWSC 439 Hearing dates: 6 May 2011 Decision date: 06 May 2011 Jurisdiction: Common Law Before: Johnson J Decision: Order made for separate determination of question of liability Catchwords: PRACTICE AND PROCEDURE - claim for damages for personal injury - Plaintiff rendered quadriplegic as a result of wake-skating accident - Defendant was driver of boat towing Plaintiff at time of accident - application by Plaintiff, supported by Defendant, for separate determination of question of liability - order made for separate determination of liability Legislation Cited: Civil Procedure Act 2005 Cases Cited: Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1 Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 Texts Cited: Category: Interlocutory applications Parties: Martin Hume (Plaintiff) Timothy John Patterson (Defendant) Representation: Ms J Gumbert (Solicitor for Plaintiff) Ms R Deane (Solicitor for Defendant) Stacks/Goudkamp (Plaintiff) HWL Ebsworth Lawyers File Number(s): 2010/379172

Judgment 1JOHNSON J : The Plaintiff, Martin Hume, by Notice of Motion filed 7 April 2011 seeks separate determination of the question of liability pursuant to Rule 28.2 Uniform Civil Procedure Rules 2005 (("UCPR") in proceedings for damages which are on foot against the Defendant, Timothy John Patterson. 2The evidence before the Court indicates that the Plaintiff was injured and sustained catastrophic spinal injuries as a result of a wake-skating accident on the Tweed River on 18 November 2007, when he was 18 years old. The accident occurred when the Plaintiff was being towed by a boat being driven by the Defendant. The Plaintiff came off his wake-skate and fell into the water. He is now a quadriplegic. 3Both parties to the litigation agree that separate determination of the question of liability is an appropriate course in this case. There are a number of reasons for this, including the substantial case that will be required to determine the question of liability and the prospect of a country sitting. Further, the question of damages will be complex and involve a significant number of experts. It is apparent that if liability is established, a substantial award of damages would result. 4Rule 28.2 UCPR permits the Court to order separate determination of issues in proceedings. The Court has a discretion which is to be exercised judicially. In exercising the power under the UCPR, the Court should give effect to the overriding purpose under s 56 Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 5The Court begins with the proposition that it is ordinarily appropriate that all issues in proceedings should be disposed of at the one time, and that it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. It is necessary for the Court to bear in mind the disadvantages which may flow from fragmentation of civil litigation, including unexpected complications: Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1 at 55. 6It has also been observed, however, that since the Civil Procedure Act 2005 , the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of litigation expeditiously: Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 at [6]. 7Although trial courts will probably be more disposed nowadays to order separate questions than they might have been in the past, it remains the case that separate determination is an exceptional course to be contrasted with the ordinary course of deciding a case in its totality: Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 at [5]. 8I approach the application with these principles in mind. 9This is a case where it is desirable to proceed by way of separate determination of the question of liability. The parties agree that that is the best way forward. There are significant advantages in the parties focusing their minds on the liability issue for hearing, with the question of damages to be considered at a separate and later hearing, if liability is established. 10I do not see that there is any real risk of unexpected complications in taking this approach in this case. 11The parties are agreed as to further orders that should be made to progress the litigation. 12I am satisfied that an order should be made in accordance with par 1 of the Plaintiff's Notice of Motion filed 7 April 2011. 13Having expressed that conclusion, I now proceed to make orders 1, 2, 3, 4 and 5 in accordance with the Short Minutes of Order signed by the legal representatives for the parties, which I have signed and dated today.