Supreme Court New South Wales Medium Neutral Citation: Harris v Bunker Freight Lines Operations Pty Ltd [2014] NSWSC 1193 Hearing dates: 27/08/2014 Decision date: 27 August 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The order made on 24 April 2013 for a separate determination of the issue of liability is revoked. (2)Fix the matter for directions before the common law case management Registrar on Monday 1 September 2014 at 9am for consideration of the question of whether these proceedings should be referred to a Judge of this division for judicial case management. (3)The costs of the motion are costs in the cause Catchwords: PROCEDURE - civil - interlocutory issues - application to revoke order for hearing of separate questions Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 56 Motor Accidents Compensation Act 1988 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 28 Cases Cited: Nominal Defendant v Manning (2000) 50 NSWLR 139; Southwell v Bennett [2010] NSWSC 1372 Category: Interlocutory applications Parties: Richard Harris by his tutor Jillian Davey (Plaintiff) Bunker Frieght Lines Operations Pty Ltd (First Defendant) TNT Australia Pty Ltd (Second Defendant) Villacare Pty Ltd (Cross Defendant) Representation: Counsel: J De Greenlaw (Plaintiff) J Turnbull (First Defendant) D Perla (Second Defendant) TJ Willis (Cross Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Carroll & O'Dea (First Defendant) Moray & Agnew (Second Defendant) Sparke Helmore (Cross Defendant) File Number(s): 2012/51415 EX TEMPORE Judgment 1Mr Harris claims personal injuries for an acquired brain injury suffered in a single motor vehicle collision which occurring on 4 September 2006 when the semi-trailer he was driving rolled over on the Great Western Highway near Hartley. 2He was in the course of his employment with the cross-defendant and has been in receipt of workers compensation since then. These proceedings claiming common law damages were not commenced until 2012 and it is apparent that, in addition to issues strictly going to liability and quantum, there will be a question of whether the claim is statute-barred, on the one hand, and whether the Court has power to, and should, extend time, on the other hand, if the applicable limitation provision is such as allow a flexible extension. In this case, that would only be applicable if the accident was a motor accident, a matter disputed by the first defendant, the owner of the truck he was driving. 3On 23 April 2013 Schmidt J ordered, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that issues of liability be heard separately from, and in advance, of issues of quantum. No such separate hearing has yet occurred and part of the reason for that, as contemplated by her Honour when she made the orders, is that other parties have been joined. In particular, the second defendant, who it is said was responsible for the loading of the trailer, has been joined, as has Mr Harris' direct employer as cross-defendant. 4The parties are in contest about the cause of the accident. On the plaintiff's case, as I am informed by Mr de Greenlaw of counsel who appears for him today, the load shifted, causing the truck to roll over. On the first defendant's case, as I am informed by Mr Turnbull of counsel, and probably on the second defendant's case, as I think Mr Perla acquiesced in this statement, the question is whether Mr Harris was driving his vehicle down a winding, steep descent known as Riverlet Hill at an excessive speed. 5The liability issues in the case are, I think, various. They include the following: what was the cause of the accident; was either defendant legally responsible for the accident; is the accident a motor accident covered by the Motor Accidents Compensation Act 1988 (NSW); was the plaintiff guilty of contributory negligence either by driving at an excessive speed or by failing to wear a seatbelt; is the claim statute-barred and, if so, can time be extended. They are not simple issues and the resolution will be informed, no doubt, by lay evidence and expert opinion. I accept, as Mr de Greenlaw argued, some medical evidence will be relevant to the question of contributory negligence if it is found that Mr Harris was not wearing a seatbelt. Although, as Mr Turnbull argued, perhaps the degree of contributory negligence could be treated as a quantum issue reducing the damages. 6Moreover, the damages issues themselves are likely to be, if not complicated, at least intricate, because of the allegation of a traumatic brain injury, which always gives rise to questions of the relevant need for care, and how it should be assessed, as well as questions of fund management. It seems from what counsel have said that the damages issues are not fully prepared for trial and that is partly explained, I think, by the fact that Schmidt J ordered a separate determination of the liability question. 7The second defendant, who was not a party at the time her Honour made the order, moves for the order to be vacated or revoked and for the case to be conventionally heard as a final hearing on all issues. 8Mr Perla of counsel refers me to the principles summarised by Hallen AsJ, as his Honour then was, in Southwell v Bennett [2010] NSWSC 1372 at [15]. In particular, Mr Perla relies on point (j), made by his Honour, that: Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings (citations omitted) 9I think Mr Perla accepted that this question, however, cannot now be approached as though the slate was clean. After argument, a Judge of this Court has made a decision that the interests of justice, by reference to the overriding principle expressed in s 56 of the Civil Procedure Act 2005 (NSW), require a separate determination of the liability question. 10It may not be strictly necessary for Mr Perla to demonstrate a material change of circumstances to enable me to revisit that question: See Nominal Defendant v Manning (2000) 50 NSWLR 139; but it would certainly be relevant if he could. I should say that Mr Perla's position is supported, not only by Mr de Greenlaw for the plaintiff but by Mr Willis of counsel who appears for the cross-defendant. 11Naturally, it would be inappropriate for me to approach the question without the benefit of Schmidt J's decision. It would be inimical to the efficiency proceedings of the Civil Liability Act 2005 (2005), and to the interests of the administration of justice, if a multiplicity of case management applications were made to different Judges in the hope of obtaining a different result. And it is relevant for me to guard against the possibility that a contrary decision might encourage forum shopping on these matters. 12It seems to me that circumstances have changed. That does not mean that a different decision is called for, but it is relevant for me to set out what they are. First, although it was in contemplation that other parties might be joined, that has now occurred and the other parties have a different view of things and their view is entitled to be taken into account, although it cannot be determinative. Moreover I think it implicit in her decision that Schmidt J contemplated that the liability issue might have dealt with by now. 13From what I have been told by counsel today, estimates of the necessary hearing time vary. There seems to be general agreement that liability can be heard, if not decided, within about three days, especially given that the experts will probably give their evidence concurrently. With great respect, I am not sure I agree with counsel's estimate, having regard to the various issues that I have identified as being relevant to the question of liability. It seems to me that the liability hearing, in those circumstances, is likely to occupy at least a week - by that I mean five days - and I emphasise, "at least". 14I accept the full force of Mr Turnbull's submissions that the damages or quantum issues will be intricate and, accepting that quantum experts will also give their evidence concurrently, one might contemplate another week for the hearing of those issues and legal argument. 15A complication is the question about whether this is a motor accident and, as Mr Turnbull made clear, he appears for the first defendant on the instructions of the motor accident insurer only. In those circumstances, one can contemplate the situation where the first defendant might be legally liable, but the motor accidents insurer will not be liable to indemnify it. And no doubt that particular issue would be best resolved in the context of a separate hearing and I take that into account. 16I think the finding of material change in circumstances permits me to consider the question afresh and I propose to do so. Savings in court time are possibly available for some of the parties if liability is determined separately. Obviously any party absolved from liability need not incur further expense in participating in the damages hearing and, in that regard, on the assessment I have made, it will save half of its expected legal costs of the hearing. If the plaintiff is found solely responsible for the accident, then all defendants will save significantly on legal costs. Having said that, it should not be expected that parties would be purely reactive and not prepare their case on quantum pending the resolution of liability issues if the order stands. That too would be inimical to the overriding purpose. 17Because there is brain injury, there are difficulties with, as Mr Turnbull points out, with the defendants having neuropsychological tests given the so-called "practice effect" making it desirable that such repeat-testing be separated by perhaps as much as twelve months. 18On the other hand, the general rule, of course, is that, in the interests of finality, there should be a single hearing. It seems to me that that is a significant consideration in this case, given the delay - I do not mean that pejoratively - since 2006, and also given the complexity of the potential issues that might be identified as liability issues and the overlap between some of them and issues which go to damages. Moreover, because of the joinder of parties and the continuing preparation by new parties, it has not been possible to fix this matter for the hearing of the separate question so far. This circumstance has defeated a measure which might have substantially furthered the overriding purpose in this case, had a hearing been held by now. 19I also take into account that three of the parties would rather have a single hearing. Matters like this cannot be resolved by merely counting heads, but as I have said, the views of the parties are not irrelevant. 20Given the age of the case and the interests of justice in bringing this litigation to finality sooner rather than later, having regard to what I have said about the overlap of factual issues from liability to damages, I am persuaded, giving full weight to the views of Schmidt J expressed in April last year, that the order for a separate determination should be revoked. 21However, it seems to me that there is a need in this case for active judicial case management to bring the whole matter on for hearing sooner rather than later. I appreciate that given the pressure of work in the Common Law Division that this is unlikely to be until 2015. Given that a five-day trial on liability has not been fixed, it seems to me equally likely that a separate determination could not take place until then. It may be that efficiencies in time management may be achieved as well by revoking the order of Schmidt J. 22In the circumstances, I make the following orders: (1)The order made on 24 April 2013 for a separate determination of the issue of liability is revoked. (2)Fix the matter for directions before the common law case management Registrar on Monday 1 September 2014 at 9am for consideration of the question of whether these proceedings should be referred to a Judge of this division for judicial case management. (3)The costs of the motion are costs in the cause. ********** 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. Decision last updated: 28 August 2014