Arnott, Diana Margaret v O'Leary, Ronald Selwyn

[1998] TASSC 15

15/1998

PARTIES:  ARNOTT, Diana Margaret

v
O'LEARY, Ronald Selwyn

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  841/1993
DELIVERED:  19 February 1998
HEARING DATE/S:  5 February 1998
JUDGMENT OF:  Cox CJ

Edited edition of reasons for judgment given orally

CATCHWORDS:

REPRESENTATION:

Counsel:
           Defendant/Applicant:  M F Lillas
           Plaintiff/Respondent:  C J Bartlett
Solicitors:
           Defendant/Applicant:  Michael Lillas
           Plaintiff/Respondent:  Bartletts

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  15/1998
Number of pages:  2

Serial No 15/1998
File No 841/1993

DIANA MARGARET ARNOTT v RONALD SELWYN O'LEARY

REASONS FOR JUDGMENT  COX CJ

19 February 1998

The defendant seeks an order that the issue of liability in this matter be tried before that of quantum of damages.

The plaintiff is suing for damages for personal injuries sustained by her while a pillion passenger on her de facto husband's motor cycle on 3 January 1992 which was involved in a collision with a motor car driven by the defendant near Stanley.  The defendant is a resident of New South Wales, while the plaintiff is a resident, I understand, of Victoria.

It is apparent from the pleadings and admissions recorded in the certificate of readiness that the sole issue relating to liability is whether the defendant was negligent in causing his vehicle to cross on to the wrong side of the road and collide with the motor cycle driven by the plaintiff's de facto husband who was killed in the accident.  There is a specific admission that the deceased motor cyclist made every attempt to avoid the collision, was travelling at a reasonable speed and was not negligent.  I have been informed from the Bar table that neither plaintiff nor defendant has any memory of the accident.  The reason to be advanced for the defendant's failure to keep his vehicle on the correct side of the road is, I have been told, a heart condition which at the relevant time prevented him from doing so.  The plaintiff pleads that if such be the case, he was in any event negligent in driving when he knew or ought to have known that he was at risk of suffering from a heart attack which might disable him from having sufficient control over his vehicle.

The defendant clearly carries an evidentiary onus of advancing some innocent reason for his intrusion into the path of travel of the machine on which the plaintiff was a passenger.  Absent such an explanation, the plaintiff can clearly rely on the maxim res ipsa loquitur. 

The issue is a discrete one.  It is difficult to see how the plaintiff showing in respect of her evidence concerning her injuries could be of significance in respect of the issue of liability and vice versa.  This is more so, if as I have been told, she has no memory of the accident.  This is sometimes advanced as a reason for not splitting trials in this way; but it is clearly not the case here.

Were this an application by the plaintiff, I would have little hesitation in granting it.  There would be great advantage for her to have the issue of liability determined before incurring the heavy cost of calling a large number of expert witnesses as to her physical condition.  I understand there are six medical witnesses from Melbourne on that issue alone.  However, the plaintiff opposes the defendant's application and is accordingly prepared to take the risk that this expense would be unnecessarily incurred if she fails in respect of liability.  Her principal objection is that splitting the trial will result in unacceptable delay and she points out, through her counsel, that the accident occurred over six years ago, that pleadings closed in March 1994 and it was only in November 1997, a month or so after the certificate of readiness was signed, that this application was made.  The defendant is not under the same financial constraints as the plaintiff in view of the mandatory insurance requirements in this country.  There are, furthermore, means available to him and his insurers of resolving the issue of quantum conditionally upon the establishment of liability. 

I think the plaintiff is entitled to insist upon the trial of all unresolved issues as soon as Court time permits and should not be forced to engage in piecemeal litigation at this late stage in the pretrial process however advantaged that course might have been had such an application been made within a year or so of the accrual of the cause of action as it was in Aikenhead v Voss (1996) 6 Tas R 165 to which I was referred.

The application is refused.