El Chami v Golden Miles Developments Pty Limited [2017] NSWSC 1285

Supreme Court New South Wales

Medium Neutral Citation: El Chami v Golden Miles Developments Pty Limited [2017] NSWSC 1285 Hearing dates: 4 May 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Common Law Before: Rothman J Decision: 1. The motion is dismissed. 2. Hearing listed to commence on 29 May 2017 vacated. 3. Proceedings listed before the Registrar, in the Registrar's list on Monday, 8 May 2017. 4. The costs of the motion be the defendants' costs in the cause Catchwords: PRACTICE & PROCEDURE – damages not ready to be heard – application to separate damages and liability – application for separation refused – application for vacation of trial dates granted. Legislation Cited: Civil Procedure Act 2005, s 56 Category: Procedural and other rulings Parties: Nizar El Chami (Plaintiff)

Golden Miles Developments Pty Ltd (ABN 64079272334) (First Defendant)

Ayman Decorative Painting Pty Ltd (Second Defendant) Representation: Counsel: Mr B Dooley SC with Mr G Hickey (Plaintiff) Mr G Tzortzatos (First Defendant) Mr R Perla (Second Defendant)

Solicitors: Slater & Gordon Lawyers (Plaintiff) Curwood Lawyers (First Defendant) Moray & Agnew (Second Defendant) File Number(s): 2015/227127

EX TEMPORE Judgment 1. The Court has before it a motion on notice, the effect of which is to vacate the hearing on damages that has otherwise been set down as part of the whole trial to commence hearing on 29 May 2017. The matter is listed potentially for seven days, or thereabouts, commencing on the date just mentioned. 2. The plaintiff's application is that the hearing time currently fixed, commencing 29 May 2017, which, on the material before the Court, would seem to be about two to three days, be confined to the determination on issues of liability. 3. The accident itself is relatively uncomplicated. The plaintiff was acting as a painter. He was employed or engaged, which may be an issue at trial, by the painting contractor, being the second defendant in the proceedings, engaged at a site for which, for want of a better term, the first defendant in the proceedings is the principal building contractor. 4. The issues of liability essentially deal with, as one would expect, the apportionment of liability, if any, between the first and second defendants, on the one hand, and the degree of contributory negligence, on the other hand. 5. The accident occurred in circumstances which are relatively uncontroversial. The plaintiff and the director of the second defendant, the painting contractor, attended at the construction site, which is a site for the construction of a house in Lidcombe. While a conversation occurred between persons representing the first defendant and persons representing the second defendant, the plaintiff was directed or asked to commence with the work that was planned. 6. The plaintiff went to a position in the building and fell into a void between the first and second floor of the house in question. This accident occurred on 15 February 2016. 7. The injuries to the plaintiff thus far included, and were particularised in the Statement of Particulars filed in August 2015; a fracture of the left heel, right ankle and joint injury, lower back disc protrusion and psychiatric injuries. 8. By Affidavit filed with the motion, the solicitor for the plaintiff attests to the fact of continuing acute neck and back symptoms and attendance on a specialist, for which an appointment is made for 9 May 2017, which is next week, and for which there is to be discussion whether further surgery is required or appropriate. 9. Thus, the plaintiff says that his injuries are no longer stable. He is undergoing active therapeutic treatment and may need further spinal surgery and is certainly intending to undergo further neurological review. The plaintiff's solicitor is instructed to amend the Statement of Particulars to include further injuries and disabilities. 10. The attitude of the defendants at this stage is that there is opposition to the amendment, or probably more accurately stated, it will be seriously challenged whether the accident in question was causative of the injuries claimed. 11. The orders that are sought are orders that this Court has often said should not be granted lightly. There is often an overlap between those issues which affect liability and those which affect damages. 12. The plaintiff says that the factual contest in relation to liability is short. It is certainly short, if all that liability concerned was the manner in which the accident occurred. It will not necessarily be short if there will be a contest between the two defendants and the plaintiff, which I hasten to add I would expect and have been told there is, as to the relative apportionment of liability, if any, for the injuries that have occurred. 13. This is not a case in which there will be rationally argued that no injury occurred as a result of the accident. As a consequence it is not a case where liability would depend upon whether damage can be shown. 14. It is, however, a case in which the damage is significant. It may well be, as the plaintiff has put, that resolving the relative liability of the parties, being the plaintiff on the one hand and each of the defendants on the other would go a long way to resolving the whole of the matter. This may be either by way of facilitating settlement, which I hasten to add was not part of the submission of the plaintiff, or by way of narrowing issues that may be contested in a damages hearing. 15. There are a number of difficulties it seems to me, in splitting the case. Apart from the general difficulty with splitting liability and damages and dealing separately with each of the issues, the difficulty is that a significant part of the proceedings will deal with the relationship between the plaintiff and his role within the painting contractor and the painting contractor's relationship with the principal builder. And that in turn will depend upon certain issues of credit as between the plaintiff, his brother, who is the director of the painting contractor and representatives of the builder. 16. The relationship between the director of the painting contractor and the plaintiff is not to be ignored in dealing with the totality of the issues and the manner in which a Court would be required to deal with it. One of the issues that the Court faces is that it is not clear at this stage whether surgery will be performed. 17. It is also not clear, or even less clear, as to when the injuries that are said to arise from the accident will be stabilised and could be determined. 18. The plaintiff submits that the proceedings could be heard on damages some three months after it is currently listed. Accepting that, without deciding it, one is then faced with the alternative of hearing the whole of the proceedings three months later or hearing liability commencing on 29 May 2017 and damages some time after that, but, presumably, at or about three months after that. 19. The parties are agreed, given the allegations as to instability and pain, that the matter cannot proceed on damages on 29 May. The Court would be acting perversely, if it were to force the parties in that circumstance to proceed on 29 May, regardless of the consensus of the parties. The parties are represented by experienced legal representatives. 20. The issue ultimately comes down to the exercise of discretion as to how best to facilitate the just, quick and cheap resolution of the real issues between the parties. That injunction of course comes from the terms of s 56 of the Civil Procedure Act 2005 ("the Act") and is detailed in the sections or provisions following s 56 of the Act. Fundamentally, it is to facilitate that purpose which the Court must consider and which, in this case, is determinative in deciding whether to adjourn. 21. I make it clear that the foregoing comment as to the Court not contemplating forcing the parties on, on 29 May, on both issues, is not intended to be a criticism of the parties or indeed a criticism of the Court. My remark is aimed only at the fact that the experienced legal representatives that are before the Court have considered the matter and consented to the situation. The Court frankly agrees with their assessment. 22. In circumstances where the damages have not yet stabilised and should be stabilised within a short time, it is appropriate that we wait for the time for the injuries to be stabilised. 23. The difficulty, however, is that, at least on one view, the injuries may not stabilise in a short time. And that is something we will not know until after 9 May and possibly after any surgery that may occur thereafter. 24. In all of the circumstances, it seems to me that the general attitude to the splitting of liability and damages ultimately is that which satisfies me that I should not split these matters. That attitude may change, if the injuries about which the plaintiff has provided evidence do not stabilise and the matters need to be delayed further than is currently the situation. 25. It seems to me that in a seven day trial, if three of the days are to be utilised to deal with liability and there will be an overlap of evidence, we would be wasting everybody's time and effort by splitting the case into liability on the one hand and damages on the other. And in those circumstances, the motion is dismissed. 26. Insofar as it seeks to have the Court deal separately with the question of liability in the proceedings, the Court makes the order that the hearing currently listed for 29 May 2017 and the days following be vacated. The matter should be put before the Registrar as soon as possible to ensure that all of the evidentiary statements will have been filed in a timely manner and in order to ensure that the matter proceeds to hearing as expeditiously as is possible given the medical condition of the plaintiff. 27. I make the following orders: 1. The motion is dismissed. 2. Hearing listed to commence on 29 May 2017 vacated. 3. Proceedings listed before the Registrar, in the Registrar's list on Monday, 8 May 2017. 1. I have heard the parties on the question of costs. The Court has a wide discretion as to costs but that discretion must be exercised judicially. In the ordinary course costs follow the event. It is said that the motion has been dismissed and that, as a matter of formality, is true. The difficulty with that submission is that the motion and the parties, to be congratulatory of them, recognise that something had to be done to vacate at least the part of the hearing on 29 May that dealt with damages. In all of the circumstances, the Court will not order costs thrown away be awarded. 2. In the second aspect, in terms of the costs of the motion, the Court will order that the costs of the hearing today be the defendants' costs in the cause.