Arnold, Darren James v Sciberras, Robert

[1998] TASSC 35

35/1998

PARTIES:  ARNOLD, Darren James
  v
  SCIBERRAS, Robert

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1991/1997
DELIVERED:  24 April 1998
HEARING DATE/S:  20 April 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Application that liability be tried separately from quantum - Matters affecting discretion - Relevance of medical evidence as to effect of failure to wear seat belt.

Rules of the Supreme Court, O39, r8.
Aust Dig Procedure [277].

REPRESENTATION:

Counsel:
           Plaintiff:  D J Gunson
           Defendant:  O M Garrott
Solicitors:
           Plaintiff:  Gunson Pickard & Hann
           Defendant:  Piggott Wood & Baker

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  35/1998
Number of pages:  2

Serial No 35/1998
File No 1991/1997

DARREN JAMES ARNOLD v ROBERT SCIBERRAS

REASONS FOR JUDGMENT  COX CJ

24 April 1998

This is an application under the Rules of the Supreme Court, O39, r8 that there be a separate trial of the issue of liability in this action.

The plaintiff alleges that on 22 April 1997, near Colebrook, he was injured in a one vehicle accident while he was a passenger in a car being driven negligently by the defendant.  He alleges serious injuries, including fractured neck, ruptured main artery to the neck, injuries to his right arm, shock, general bruising and lacerations and claims loss of income from the date of the accident at the rate of not less than $500 per week.

The defendant, by his defence, admits to having been the driver of the vehicle when it left the road, does not admit that the plaintiff has suffered any loss or damage and denies that he was negligent in any way.  Furthermore, he pleads a voluntary assumption of risk by the plaintiff in travelling in a vehicle driven by the defendant whose capacity for safe driving was, to the knowledge of the plaintiff, impaired by the consumption of alcohol.  Further or in the alternative, the defendant pleads contributory negligence on the part of the plaintiff by reason of his failure to wear a seat belt and of his election to travel as a passenger with the defendant when he knew the latter's capacity to drive was substantially impaired by the consumption of intoxicating liquor.

Notwithstanding the denial of negligence and the plea of volenti which, if successful, could result in the plaintiff wholly failing in the action, both counsel on the hearing of this application indicated that the only live issues in this case in respect of liability were those raised by the plea of contributory negligence.  Realistically that, no doubt, is so, whatever the state of the pleadings; but it seems, in any event, that there have been formal admissions to this effect.

It is submitted by the plaintiff that as the issue falls within such narrow parameters, it is eminently convenient for liability to be tried first and the degree of any contributory negligence established.  This will facilitate the resolution by agreement of the quantum of the plaintiff's damages.  I was told from the Bar table that the plaintiff is an underground bricklayer in his late 20's, that his future employment prospects in that trade are bleak and that he underwent a cervical spinal fusion at level C5-6 shortly after the accident and that it will be some time before the full extent of his residual physical disabilities can be established.

The defendant opposes the application.  The main factual matters in dispute are the wearing of the seat belt, the state of the defendant's insobriety and the plaintiff's knowledge of it.  Counsel for the defendant points out that this is not a case where witnesses' recollections of the minutiae of an accident are important and where delay in the trial of liability would impact upon the reliability of that kind of evidence.  She also contends that medical evidence will be relevant to the proper determination of the amount (if any) by which the plaintiff's damages should be reduced for contributory negligence because the causal relationship between that negligence (specifically the failure to wear a seat belt) and the plaintiff's injuries is relevant thereto.  I think this is clearly so.  In Woodward v Porteous [1971] Tas SR 386 (NC 25) Burbury CJ held that the question of contributory negligence did not arise until it was proved that wearing a seat belt would have prevented the injury complained of, in that case an eye (see also Perry v Bryan [1978] Tas SR 217 (NC 1), Rust v Needham (1974) 9 SASR 510 and Smedley v Smedley [1984] Tas R 49). It may not be possible on trial for the court to sort out the convulsion of forces and the effect the failure to wear a seat belt had on any particular injury. But in determining whether it is more probable than not that the wearing of a seat belt would have protected the plaintiff from injury and so diminished the total of the injuries which the plaintiff suffered, the defendant is entitled to probe the medical evidence as to the effect of the physical forces on the injuries sustained. Thus the question of liability in this case is not discrete from that of damages and there could be a considerable amount of duplication in the evidence if the two issues are tried separately.

It may be that at the end of the day there will be little purpose served by calling detailed medical evidence concerning the effect of failing to wear a seat belt and that the court of trial will have little difficulty in concluding that the plaintiff's injuries would probably have been considerably lessened by the precaution of putting on a seat belt.  But at this stage, in the absence of any evidence of the plaintiff's injuries or of any suggestion that the defendant has had comprehensive particulars and reports concerning them, it would be wrong to make an order for separate trials on the assumption that this is so remote an issue as not to be worthy of being taken into account.

There is a traditional reluctance to separate the issues of liability and damages in personal injury cases which Slicer J identified in Aitkenhead v Voss (1996) 6 Tas R 165 and, with respect, some modifications in that approach may well be due as the result of the rise of a new philosophy in case management; but convenience remains an important factor in the exercise of the discretion given by the rule.

In this case I am not persuaded that it would be more convenient to split the trial of the issues as sought.  The provisions of the Rules relating to payment into court and offers of compromise should prove sufficient to safeguard both parties in any attempt to achieve a settlement, without the necessity to resolve the issue of liability first.  The application is dismissed.