Supreme Court New South Wales Medium Neutral Citation: Wells v Council of the City of Orange [2016] NSWSC 589 Hearing dates: 10 May 2016 Date of orders: 12 May 2016 Decision date: 12 May 2016 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: (1) Pursuant to UCPR 28.2 order that the following questions be decided separately from and in advance of all other questions in the proceedings: (i) Is the defendant liable to the plaintiff for the accident suffered by the plaintiff at Jilba Street, Orange, on the evening of 16 November 2009? (ii) If so, was the plaintiff contributorily negligent? (iii) If so, to what extent was the plaintiff contributorily negligent? (2) The costs of the parties are to be costs in the cause. Catchwords: PRACTICE AND PROCEDURE – application by defendant for separate hearing of liability issues – application consented to by plaintiff – liability and quantum issues quite separate – likelihood of final resolution of matter if liability decided – considerable savings in time and money – application granted. Legislation Cited: Civil Liability Act 2002 (NSW) – ss 43A and 47 Cases Cited: Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [16] [2000] NSWSC 1250 Category: Procedural and other rulings Parties: Benjamin John Wells - Plaintiff/Respondent Council of the City of Orange – Defendant/Applicant Representation: Counsel: Mr A Johnson – Plaintiff/Respondent Mr H Chiu – Defendant/Applicant Solicitors: Toby Tancred Solicitor – Plaintiff/Respondent Mills Oakley Lawyers – Defendant/Applicant File Number(s): 2012/327686 Judgment 1. HIS HONOUR: Factual background The proceedings arise from a motor vehicle accident which occurred at 10.30pm on 16 November 2009 at the intersection of Jilba Street and Mirral Way in Orange. At the time, the defendant was carrying out road works on Jilba Street which included a new road bridge. Part of Jilba Street and part of Margaret Street were blocked with several sets of plastic water-filled barriers. 1. The plaintiff's case is that while riding a 250cc Suzuki motorcycle in a northerly direction he entered Jilba Street from a pedestrian bridge across the creek. Just before the intersection with Mirral Way, the motorcycle struck one of the barriers placed across Jilba Street. The plaintiff was thrown some distance and suffered very serious injuries. The plaintiff's medical condition has not stabilised and the treatment for those injuries is continuing. 2. The plaintiff alleges that the defendant was negligent in that it should have provided more illumination and more warnings to alert road users such as him of the presence of the barrier at the intersection. 3. The defendant denies liability and challenges the assertion that the illumination and warnings which were present were not adequate. The Council also relies upon ss 43A (Special Statutory Power) and 47 (Intoxication) of the Civil Liability Act 2002 (NSW) (CLA). 4. There appears to be no dispute that at the time of the accident: 1. The plaintiff's motorcycle was unregistered. 2. The motor cycle was travelling at between 48 and 59km/h (Mr Johnston, the plaintiff's expert) or between 52 and 69km/h (Mr McDonald, the defendant's expert) in a 50 km/h zone. 3. The motorcycle did not have a headlight. 4. The plaintiff had a small light mounted on a strap around his head. 5. The plaintiff suffered a head injury in the accident and has no recollection of the collision. 6. There were no eye witnesses to the collision. 7. The barrier was painted a red/orange colour and had no lights on it. 8. Reflective signs indicating "road closed" and "access to residents only" were shown on the northern side of the barrier (i.e. facing traffic travelling in the opposite direction to that of the plaintiff) but not on the southern side (which was the direction from which the plaintiff was coming). 1. The plaintiff was born in January 1977 and was aged 32 at the time of the accident. He suffered a number of injuries, but the most serious of those was a head injury. He has no recollection of what occurred for four hours before the accident and post-traumatic amnesia extending to 14 December 2009. His injuries include: 1. A fracture to the base of the skull. 2. Traumatic brain injury. 3. A fracture of the left sphenoid bone with bilateral fractures of the sphenoid sinuses. 4. A fractured left scapula. 5. Fractured metatarsals in both feet. 6. A comminuted depressed fracture of the right tibial plateau. 7. A comminuted fracture of the head of the right fibula. 8. Respiratory trauma with bilateral lower lobe contusions and a collapse of the right lobe of the lung. 1. On his admission to hospital, he underwent a right fronto-temporal craniotomy with the insertion of a plate in his skull. He was initially treated at the Nepean Hospital and then at the Orange Base Hospital. He was discharged from the Orange Base Hospital on 15 June 2010. He has been left with impairment of short term memory. There is disfigurement with obvious craniotomy defects and accompanying scars. His balance has been affected and he walks with a limp. He wears a splint at the knee which is painful. The knee swells with activity and prevents him from squatting. His left shoulder is stiff and sore. 2. In July 2014 he was diagnosed with an infected mesh cranioplasty which required the removal of the metal plate. He was due to undergo a repeat cranioplasty with replacement of the plate in March of this year but due to infection, that procedure could not be carried out. This means that at the present time his skull remains "open" until the repeat cranioplasty can be carried out. Self-evidently his condition is not stable and he requires further treatment. This application 1. The defendant by Motion filed 3 May 2016 seeks the following orders: 1. Pursuant to UCPR 28.2 an order that the following questions be decided separately from and in advance of all other questions in the proceedings. 1. Is the defendant liable to the plaintiff for the accident suffered by the plaintiff at Jilba Street, Orange, on the evening of 16 November 2009? 2. If so, was the plaintiff contributorily negligent? 3. If so, to what extent was the plaintiff contributorily negligent? 1. The application is consented to by the plaintiff. It has been agreed between the parties that the costs of the defendant's application will be costs in the cause. Accordingly, the only issue before the Court is whether despite the consent of the parties, is it appropriate for liability to be decided as a separate issue. Consideration 1. The relevant principles are not in doubt. The starting point for such a motion is that ordinarily all issues in proceedings should be disposed of at the same time. In claims involving tort, care needs to be taken in deciding whether or not to conduct a separate hearing as to liability because sometimes separate trials may be produce delay, extra expense, appeals and uncertainty of outcome. It is also undesirable to have separate trials unless the parties accept that compensable damage has been sustained by the plaintiff. There is, of course, no issue of that kind on the facts of this case. 2. The following principles set out by Einstein J in Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [16] [2000] NSWSC 1250 have been restated and approved in a number of appellate decisions: 1. It is for the party seeking the order to show the court that it is desirable for the determination of a separate question to occur. 2. The determination of a separate question may be appropriate where the resolution of the separate issue carries with it a strong prospect that the parties will be able to resolve their dispute themselves. 3. The determination of a separate question will be unlikely to be appropriate where there is a commonality of witnesses and issues of credit, as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more witnesses. 4. A determination of a separate question is unlikely to be appropriate unless it is possible to clearly see that the determination will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. 1. I have concluded that in this case all relevant indicia point towards the making of the order for a separate hearing of liability as sought by the defendant. 2. Over six years have now passed since the accident occurred. It is inevitable that with further delay, the recollections of witnesses will be further degraded. Such further delay would be inevitable if a single trial were heard given the unstable nature of the plaintiff's medical condition. Moreover, because the plaintiff has no recollection of the accident, there will be no overlap of evidence as to his credit when considering liability as distinct from damages. This is also the case with the lay witnesses whose evidence is almost all directed to liability. There is no overlap in the expert evidence between liability and quantum. 3. If the defence makes out its statutory defences, in particular s 43A CLA, this would bring the proceedings to an end. It would seem, at least on a prima facie basis, that s 43A CLA is in play in this matter. Even if the defendant did not succeed on liability, there is a high likelihood of a finding of contributory negligence against the plaintiff. If such a finding is made, there is also a high likelihood, given the relatively uncontroversial nature of the medical evidence, that a settlement between the parties could be achieved. This would considerably shorten the matter and save court time. 4. If the matter were to proceed as a trial of both liability and quantum, the preparation of the damages part of the case by the defendant would involve significant additional expense and significant additional delay. That, of course, assumes that some stability in the plaintiff's medical condition can be achieved. It would also involve additional expense on the part of the plaintiff. 5. As already indicated, the factual and legal questions relevant to liability are quite separate from those relating to damages. The liability issues will be restricted to questions of lighting and traffic engineering and would require no more than a 5 day hearing even if all of the lay persons who have provided statements are required to give evidence. The Court was told that subject to toxicology/pharmacology expert evidence being obtained, the parties are in a position to proceed with the hearing of the liability issues. The Court was advised that even on the most optimistic view, if a hearing were to take place of liability and damages, the matter would not be ready until mid to late 2017 and the amount of court time occupied would be at least doubled. 6. In conclusion, the issue of liability is the one which most divides the parties and prevents any useful discussion leading to a possible resolution of the proceedings. The evidence which goes to the issue of liability is of a relatively confined nature and it may well be that the issues will be further confined by the agreement of the parties. By having liability and contributory negligence determined separately, it is more likely that the whole of the proceedings will be capable of being finally disposed of. 7. For the above reasons, I make the following orders: 1. Pursuant to UCPR 28.2 I order that the following questions be decided separately from and in advance of all other questions in the proceedings: 1. Is the defendant liable to the plaintiff for the accident suffered by the plaintiff at Jilba Street, Orange, on the evening of 16 November 2009? 2. If so, was the plaintiff contributorily negligent? 3. If so, to what extent was the plaintiff contributorily negligent? 1. The costs of the parties are to be 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: 12 May 2016