Burns v Tahi

[1990] TASSC 127

Serial No B50/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Burns v Tahi [1990] TASSC 127; B50/1990

PARTIES:  BURNS
  v
  TAHI

FILE NO/S:  737/1990
DELIVERED ON:  24 August 1990
JUDGMENT OF:  Master Southee

Judgment Number:  B50/1990
Number of paragraphs:  17

Serial No B50/1990
List "B"
File No 737/1990

BURNS v TAHI

REASONS FOR JUDGMENT  MASTER SOUTEE

24 August 1990

1. The plaintiff has filed an interlocutory application seeking an order that the question of liability in this action be determined separately from the question of quantum of damages. The application is made pursuant to O39 r8 of the Rules of the Supreme Court 1965 which is as follows:

"Subject to the provisions of the preceding rules of this Order, the Court or a judge may, in any cause or matter, at any time, order that different questions (whether of fact or law) be tried at different places or by different modes of trial and, having regard to the advantage of hearing evidence without undue delay, the costs which may be incurred and any other matter, that a question or questions be tried before any other or others."

1. The plaintiff's claim is for damages for personal injuries arising out of a motor vehicle accident on 30 July 1989. The plaintiff alleges that he was struck by a motor vehicle driven by the defendant when he was walking at night beside Main Road near Huonville. The defendant denies the material allegations contained in the statement of claim and pleads contributory negligence by the plaintiff.

1. The plaintiff suffered severe head injuries as a result of the accident.

1. Two affidavits were tendered by Mr Wood, the solicitor for the plaintiff, and one by Mr Docking, the solicitor for the defendant, upon this application.

1. In relation to the question of liability there are annexed to Mr Wood's affidavit, sworn 7 August 1990, police statements of three persons who had been with the plaintiff shortly prior to the time when the accident occurred. Only one of those persons, Wayne Thomas Fox, aged 30 years, was with the plaintiff at the time when the plaintiff was struck by a passing vehicle. Mr Fox was also struck on the hip by the same vehicle. He said that he and the plaintiff were walking on the gravel section adjacent to the highway towards a car in which their friends were waiting for them when the accident occurred. He is the only material eye–witness in support of the plaintiff's case. The present medical evidence indicates that because of the brain damage suffered by the plaintiff, his power of communication is very limited. Annexed to Mr Wood's first affidavit is a medical report from Dr Mackay–Smith, a medical officer at St John's Park, where the plaintiff is presently institutionalised. He reports that some artificial method of communication with the plaintiff may be achieved in the future, but that his general condition is unlikely to improve. Mr Liddell, a neurosurgeon, in a report which is annexed to Mr Wood's second affidavit sworn 20 August 1990 is of the opinion that the plaintiff's condition has the potential to improve over the next few years, but that it will be a considerable period before his injuries have stabilised.

1. Mr Docking in his affidavit deposes to the prejudice which the defendant is likely to suffer if there is a split trial.

1. Mr Wood tendered the following written submissions in support of the application:

"1In exercising the discretion pursuant to Order 39 Rule 8 the Court should balance the competing factors and decide on balance what justice requires.

2There is an obvious advantage in this case to hear evidence on the issue of liability without undue delay. The reasons for this are:–

(a)The circumstances indicate that the issue may turn on the evidence of one particular civilian witness;

(b)The Plaintiff cannot communicate;

(c)It is presently unknown whether some artificial method of communication may be established in the future;

(d)The Plaintiff's injuries are very significant;

(e)The Plaintiff's condition has the potential to improve over the next few years.

3The resolution of the issue of liability will assist the Defendant's advisers in formulating an appropriate payment into court/settlement offer.

4On the pleadings there is a clear line of demarcation between issues bearing on liability and issues bearing on quantum of damages.

5A split trial would not result in an increase in costs."

1. It is apparent on the material before me that the issues, both as to liability and quantum of damages, are likely to involve considerable hearing time and that the question of the plaintiff's claim, if he succeeds on the issue of liability, is likely to be a large award. I also consider that it is unlikely, in view of the medical evidence, that the plaintiff's injuries will stabilise and enable the quantum of his claim to be determined before 1993. In the interim period, if liability is not determined prior to the issue of quantum, the plaintiff is under the risk of substantial prejudice should for any reason the material witness become unavailable. In such a situation the plaintiff may well fail to prove his cause of action in negligence against the defendant.

1. Against these factors there must be weighed the prejudice which the defendant will suffer if a split trial is ordered. There will, of necessity, be some increase in the costs of a divided hearing, but this is not likely to result from a duplication of the same witnesses giving repetitious evidence. Counsel for the plaintiff indicated that it is not proposed to call the plaintiff on the issue of liability as he is unable to communicate any facts relating to that issue. It is not a case where his credit could be tested only on one issue and which might affect the finding when he is called to give evidence in relation to the quantum of his damages. Neither does this appear to be a case where there is a blurring of the demarcation between the issues of liability and quantum of damages. Counsel for the defendant also submits that the defendant will be prejudiced by the inability to make a payment into court if the issues are split, whereas Counsel for the plaintiff said that it is still available to the defendant to make an open offer on the question of liability and, if the defendant is successful, the plaintiff would find it difficult to resist an application by the defendant for the costs of that issue. The disadvantage suffered by the defendant is a factor which must be taken into account in weighing the merits of this application.

1. Whether or not to invoke the provisions of O39 r8 and order a split trial involves the exercise of a judicial discretion. Whilst r8 does not in its specific terms require any special circumstances to be shown before a split trial will be ordered, the normal procedure should still be that issues of liability and damages should be tried together, unless there are factors present which make it just to order otherwise. Lord Justice Denning's view of the rules in Coenan v Payne & Anor [1974] 2 All ER 1109 appears to take too literal an interpretation.

1. Counsel for the parties cited a number of authorities in support of their submissions. Mr Wood referred to Jordan & Rosa v Robinson, an unreported and oral judgment in this Court of Nettlefold J given on 17 February 1986. In that case his Honour was dealing with a personal injuries claim where the evidence as to liability may have depended on the observations of one particular witness. After considering all the facts before him his Honour said:–

"... but in the end, as will all these exercises of discretion, it is a matter of balancing the competing factors and saying on balance what justice requires."

1. Mr Wood stated that his Honour's decision was appealed, but that the appeal was dismissed by the Full Court.

1. Mr Docking referred to Evans Deakin Industries Ltd. v The Commonwealth of Australia [1983] Qd R 40 and Electrona Carbide Industries Pty Ltd and Attorney–General for the State of Tasmania v Baillieu Bowring (Tas) Pty Ltd Tas unreported Serial No 57/1985 in support of his submissions. However, they were cases where a clear demarcation of the issues had not been established and should be distinguished from the present circumstances.

1. In considering these cases I have kept in mind the timely warning of Windeyer J in Hall v The Nominal Defendant (1966) 117 CLR 423 at p 445 where his Honour said:

"this case has, I think, shewn how much trouble can arise from an attempt to translate particular reasons given for the exercise of a discretion in one set of facts as a test of the validity of the exercise of a similar discretion in a different set of facts."

1. Mr Wood said that in the present action there are no outstanding pre–trial steps such as discovery or interrogatories which would delay the holding of a pre–trial conference and the listing of the issue of liability for trial if such an order is made. Mr Docking stated that the defendant is still carrying out enquiries as to the issue of liability.

1. After considering all the materials before me and the submissions made upon this application, I am of the view that, on balance, it is just that I should exercise my discretion to order that the question of liability be tried separately from the question of the quantum of damages. On the present facts I am satisfied that the potential prejudice which the plaintiff suffers far outweighs any increase in costs or other prejudice which the defendant may suffer by such an order.

1. I make an order in the terms of paragraph 1 of the application and shall hear Counsel as to costs.