Chattaway v Lloyd
[2023] SADC 72
•21 June 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHATTAWAY v LLOYD & ORS
[2023] SADC 72
Reasons for Ruling of her Honour Judge Schammer
21 June 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY
The applicant, Nicholas Chattaway, by his litigation guardian, claims damages for personal injuries allegedly sustained by him on 5 December 2010 arising from an alleged assault upon him by Mr Lloyd (the first respondent) and Mr Dunn-Lawless (the second respondent) at an 18th birthday party hosted by Ms Dansie and Mr Stankiewicz (the third and fourth respondents) at their property.
There is a significant dispute as to the circumstances of the alleged assault and what occurred at the birthday party, being matters relevant to the determination of liability.
There is also a significant dispute as to whether, as a result of the alleged assault, the applicant suffered injuries including post-traumatic stress disorder and schizophrenia (issues of causation).
The applicant is serving a ten-year limiting term imposed by the Supreme Court on 16 December 2016, after he was found to be mentally incompetent to commit the offences of attempted murder of his parents following an incident on 29 October 2016.
In April 2021, by FDN 91, the third and fourth respondents applied for an order that there be a separate trial on liability pursuant to UCR 151.1(2). The Court declined to make the order, but ordered a trial proceed on the issues of liability and causation, before any trial on the issue of quantum. One of the reasons for refusing to order a separate trial on liability was the potential overlap in the evidence to be given at trial on the issues of both liability and causation. That evidence includes medical evidence relevant to the Court’s determination as whether the applicant’s ability to give reliable and credible evidence is in anyway impacted by his mental illness and/or medication.
The trial on the issues of liability and causation was due to commence on 6 February 2023, with 20 days set aside. In September 2022, after that trial date was set, the applicant was transferred to the United Kingdom under the International Transfer of Prisoners Act 1997 (Cwth). The applicant applied for and was granted permission to give his evidence at trial via video link from the Farmfield Hospital, in the United Kingdom.
In January 2023, the applicant’s mental state deteriorated with increasing psychosis. As such, he was moved into seclusion and assessed for transfer to Broadmoor Hospital, a higher security facility.
The trial was adjourned several times in order for the applicant’s transfer to be facilitated and the applicant’s solicitors to confirm that the applicant would still be giving evidence.
The trial finally commenced on 14 March 2023, at which time it was only able to be listed for nine sitting days, meaning it was inevitable the trial would proceed part heard. Given the multiple delays in this matter, the Court determined to hear evidence only on matters relevant to liability, during those nine days, with the balance of the evidence to be heard when the part heard trial resumed at a later date. The trial remained a trial on the issues of both liability and causation.
The trial commenced. All relevant witnesses gave evidence on matters relevant to liability. The parties closed their cases on liability, subject to the applicant advising of a future intention to call a rebuttal witness on a discrete topic. The trial was then adjourned, part heard, to recommence on 20 November 2023, with a further 20 days set aside.
Both the applicant and his mother, Catherine Chattaway, gave evidence on matters relevant to liability. It is anticipated that they will both give evidence on matters pertaining to causation, when the trial resumes.
The third and fourth respondents have now applied for an order that the Court proceed to enter judgment on the issue of liability. By FDN 225, the third and fourth respondents seek such an order pursuant to UCR 12, s 8 of the District Court Act 1991 (DCA) and/or the inherent power of the Court. In the alternative, by FDN 201 filed on 27 January 2023, the third and fourth respondents seek an order that there be a separate trial on liability pursuant to UCR 151.1(2). For the purposes of this application, the third and fourth respondents have asked the court to assume that the applicant’s evidence as to the events at the party was not affected by his mental illness.
The application is opposed by the applicant.
Observations made as to the progress of this matter since determination of FDN 51, including; the non-compliance of the applicant with numerous court orders, the change in circumstances posed by the applicant’s transfer to the United Kingdom, the recent exacerbation of the applicant’s mental illness, the uncertainty as to the progress of that condition and the current status of the applicant’s mental health, the evidence heard thus far and the further cost and time that will be incurred to complete the trial on liability and causation.
Whether, balancing all relevant considerations, it is now in the overall interests of justice for the Court to give judgment on liability, prior to hearing the evidence on causation.
Orders
1. As to both FDN 201 and FDN 225, the Court declines to make the order(s) as sought.
2. The Court will hear the parties as to any further orders.
District Court Act 1991 (SA) s 8; Evidence Act 1929 (SA) ; International Transfer of Prisoners Act 1997 (Cth) , referred to.
Chattaway v Lloyd and Ors [2021] SADC 141; Chattaway v Lloyd and Ors [2022] SADC 152; Bass v Permanent Trustee Co Limited (1999) 198 CLR 334; Landsal P/L (In Liquidation) and Ors v REI Building Society [1993] FCA 121; Reading Australia P/L v AMP [1999] FCA 718, considered.
CHATTAWAY v LLOYD & ORS
[2023] SADC 72[Civil]
Introduction
The applicant, Nicholas Chattaway, by his litigation guardian, claims damages for personal injuries allegedly sustained by him on 5 December 2010 arising from an alleged assault upon him by Mr Lloyd (the first respondent) and Mr Dunn-Lawless (the second respondent) at an 18th birthday party hosted by Ms Dansie and Mr Stankiewicz (the third and fourth respondents) at their property.
On 9 June 2022, this action was listed for a separate trial on the issues of liability and causation, commencing on 6 February 2023, with 20 days set aside.[1] The trial on liability and causation did not, in fact, commence until 14 March 2023, at which time it was only able to be listed for nine sitting days, meaning it was inevitable the trial would proceed part heard.
[1] Chattaway v Lloyd and Ors [2021] SADC 141.
The circumstances of the alleged assault and precisely what occurred at the birthday party are major issues in dispute. As it was over 12 years since the party, the Court determined to hear evidence only on these and other ancillary factual issues, relevant to liability, during the nine days set aside, with the balance of the evidence to be heard at another date to be set.[2]
[2] The reasons for which I will elaborate upon hereunder.
The trial commenced, all relevant witnesses gave evidence on these specific issues and the parties closed their cases on liability.[3] The trial was then adjourned, part heard, to recommence on 20 November 2023, with 20 further days set aside.
[3] Noting that at the conclusion of hearing the evidence presented by the third and fourth respondents, counsel for the applicant raised with the Court the possibility of calling evidence to rebut that of Mr Owen Stankiewicz.
Both the applicant and his mother, Catherine Chattaway, have given evidence on matters relevant to liability. It is anticipated that they will both give evidence on matters pertaining to causation, when the trial resumes.
The applicant is subject to a supervision order imposed by the Supreme Court on 16 December 2016, after he was found mentally incompetent to commit the offences of attempted murder of his parents following an incident on 29 October 2014. The applicant gave his evidence via audio visual link from the Broadmoor Hospital in the United Kingdom (Broadmoor), where he is currently serving the balance of a ten-year limiting term.
Application
On 31 March 2023, the third and fourth respondents filed FDN 225, seeking an order pursuant to UCR 12, s 8 of the District Court Act 1991 (DCA) and /or the inherent power of the Court, that the Court proceed to enter judgment on the issue of liability. In the alternative, by FDN 201 filed on 27 January 2023, the third and fourth respondents seek an order that there be a separate trial on liability pursuant to UCR 151.1(2).[4]
[4] This application having been argued in part, but not formally determined, prior to the commencement of trial.
The second respondent adopts and supports the application(s). The applicant opposes the application(s).
The applications are supported by the fourteenth and fifteenth affidavits of David William Johns, sworn respectively on 27 January 2023 and 4 April 2023. The third and fourth respondents also filed a written Outline of Submissions dated 4 April 2023.
The applicant did not file any responding affidavits, nor any written outline. Having regard to the issues raised by the applications, the Court ordered the applicant file an affidavit addressing matters pertaining to the applicant’s ability to give evidence at the resumption of the part heard trial. The Court subsequently received the seventeenth affidavit of Anthony James Kerin sworn on 19 May 2023.
Issues in Dispute – Liability and Causation
As stated, there is a significant dispute as to what occurred at the birthday party and the circumstances of, and immediately prior to, the alleged assault.
In the years after the alleged assault, the applicant experienced mental health issues and has been diagnosed with schizophrenia. Whether there is a causal link between the alleged assault and the applicant’s mental health issues is also very much in dispute.
The applicant’s evidence is critical to the Court’s determination of both of these issues.
Background
The action was commenced on 31 January 2014, just prior to the applicant turning 21.[5]
[5] Noting the applicant’s date of birth is 1 February 1993.
Thereafter, there were numerous delays in the progression of the action, leading the third and fourth respondents to apply for the action to be dismissed for want of prosecution.[6] Those delays are outlined by Master Blumberg in his Reasons for Decision relating to that application, dated 7 September 2020.[7]
[6] FDN 65 dated 23 April 2020.
[7] Decision No. 8 of 2020 at [9]-[91].
Master Blumberg dismissed the application but ordered the action enter the Personal Injuries List pursuant to UCR 318.1(1).
Thereafter, by FDN 91, the third and fourth respondents, supported by the second respondent, sought an order pursuant to UCR 151.1(2) that there be a separate trial on liability. The application was the subject of four separate hearings conducted between June and November 2021.
During the course of those hearings, it became apparent to the Court that it was premature to determine the application in the absence of medical evidence addressing the applicant’s capacity to give evidence at trial and confirmation as to whether the applicant would, in fact, be called to give evidence at trial.[8] As to the latter, by email dated 7 December 2021, the applicant’s solicitors advised that the applicant had instructed he would be giving evidence at trial. As to the former, a report from Dr David Kutlaca, Psychiatrist, dated 16 November 2021 was filed by the applicant and relied upon as to the applicant’s capacity to give evidence.
[8] Noting that the applicant provided two statements to police shortly after the alleged assault which statements were potentially admissible at trial under the Evidence Act1929.
The Court delivered its reasons as to FDN 91 on 9 December 2021.[9] The application was refused but it was ordered that the trial proceed on the issues of liability and causation, before any trial on the issue of quantum.
[9] Chattaway v Lloyd and Ors [2021] SADC 141.
The primary basis for the application being refused was the potential overlap in the evidence to be given at trial relevant to the issues of liability and causation, and specifically that as to both of these issues, the Court would be required to make important findings as to the reliability and credibility of the applicant’s evidence.
In doing so, the Court will test the applicant’s evidence on a variety of issues by reference to other oral and documentary evidence. In addition, in assessing the reliability and credibility of the applicant’s evidence on liability, the Court will be informed by its observations as to the reliability and credibility of the applicant’s evidence on causation, such as the development of his symptoms over time, his recollection of important life events during the relevant period, and so on. Similarly, the Court’s assessment of the applicant’s evidence on matters relevant to causation will be informed as to its assessment of the reliability and credibility of the applicant’s evidence on liability.
In this case, this will include considering whether and to what extent, the applicant’s mental health illnesses and the treatment arising therefrom, impairs his ability to give reliable and/or credible evidence. This latter issue requires the court to consider expert medical evidence.[10]
[10] Ibid at [97]-[104].
In June 2022, the trial on liability and causation was listed to commence on 6 February 2023, with four weeks set aside. Between December 2021 and October 2022 (and thereafter), the applicant consistently failed to comply with procedural orders made to ensure the readiness of the parties to proceed to trial.[11] Indeed, as far as the Court is aware, the applicant is still yet to comply with an order made on 2 August 2022 that he serve any answering reports from Professor McFarlane and Dr Kutlaca within 28 days, noting Professor McFarlane is a critical witness for the applicant on causation.
[11] As set out in detail in the twelfth affidavit of David William Johns sworn on 24 October 2022 at [8]-[43].
In September 2022, that is, after the trial date was set, the applicant was transferred to the UK under the International Transfer of Prisoners Act 1997 (Cwth) and the Council of Europe Convention on the Transfer of Sentenced Persons (Convention).[12]. The practical effect of the transfer was that the applicant was unable to return to Australia to give evidence, in person, at trial.
[12] The circumstances by which this occurred are outlined in Chattaway v Lloyd and Ors [2022] SADC 152 at [9]-[15].
By FDN 182 dated 28 November 2022, the applicant applied for permission to give evidence from a place outside of the state via video link. The application was heard on 12 and 15 December 2022. At that time, the applicant was a resident at Farmfield Hospital (Farmfield) in the UK.
By email dated 23 November 2022, Dr Mark Harrison, Consultant Forensic Psychiatrist of the Farmfield Hospital and Sturt House, advised that the applicant was mentally well enough to participate in his court case and Farmfield had the necessary facilities to allow for a video call to the court. [13] In addition, Dr Harrison advised that it would be necessary for a Registered Mental Health Nurse to be in attendance when the applicant gave evidence. He recommended the Court sit for four half days starting at either 9:00am CDST (10:30pm in the UK) or 5:00pm CDST (2:30am UK time), preferably the former.
[13] Exhibit AJK4 to the Eleventh Kerin affidavit.
On 16 December 2022, the Court granted permission for the applicant to give evidence at trial by way of audio-visual link from the UK.[14]
[14] Chattaway v Lloyd and Ors [2022] SADC 152.
On or about 9 January 2023, the applicant’s mental state deteriorated with increased psychosis and increasingly threatening and violent behaviour. He was moved into seclusion and a referral was made for him to be transferred to Broadmoor, being a higher security facility. By emails dated 16 January 2023 and 20 January 2023, Dr Harrison confirmed that it was highly unlikely the applicant would be fit to attend the trial commencing on 6 February 2023.[15]
[15] Exhibits DWJ-35 to DWJ-41 to the fourteenth affidavit of David William Johns sworn on 27 January 2023.
Having regard to this, and other, developments, by FDN 201 dated 27 January 2023, the third and fourth respondents again applied for a separate trial on the issue of liability. The application was made having regard to various changes in circumstances since the order made on 9 December 2021 with respect to FDN 91, namely the uncertainty of whether (and if so when) the applicant would be able to give evidence, the applicant’s (largely unexplained) failure to comply with various orders relating to critical aspects of the trial relevant to causation and the prospect of the trial being further adjourned, with additional delay and impact on the recollections of relevant liability witnesses.
The application was opposed by the applicant. In his fourteenth affidavit, the applicant’s solicitor, Anthony James Kerin, deposed that while the applicant remained in seclusion at Farmfield, he was unable to give evidence. However, Mr Kerin further deposed that he had been informed by the applicant’s father that the applicant was to be assessed by Broadmoor on 30 January 2023 and that if the applicant was transferred to Broadmoor, he may be able to give evidence at the commencement of the trial on the date as listed.[16]
[16] Fourteenth Affidavit of Anthony James Kerin sworn on 30 January 2023 at [4], [5] and [16].
A Directions Hearing was heard on 31 January 2023.[17] Senior Counsel for the applicant informed the court that it had not been possible to make contact with the applicant since the episode on 9 January 2023 and it was therefore not known whether he would be available to give evidence, both from a health and practical perspective, and if so, when. It was submitted that on a ‘worse case’ scenario, the applicant would be unable to give evidence and his earlier out of court statements to police would be tendered at trial under the Evidence Act 1929. The ‘best’ case scenario was that he would be transferred to Broadmoor and fit to give evidence, either on 6 February 2023 or very shortly thereafter. An oral application was made to defer the commencement of trial for a fortnight to 20 February 2023.
[17] The transcript of that hearing outlines precisely what was said and by whom at that time.
At that Directions Hearing, the Court observed that the primary reason the respondents’ initial application for a separate trial on liability had been refused related to the fact that the Court would be required to assess the applicant’s reliability and credibility, being relevant to both the issues of liability and causation. It was observed that if the applicant did not give evidence at trial, that issue would fall away. The Court further observed that to determine FDN 201, it required more information as to whether and when the applicant would be able to give evidence, having regard to both his mental health and other practical issues.
In such circumstances, both the trial and the determination of FDN 201 was adjourned to 20 February 2023[18] to enable the applicant’s solicitors to obtain information as to the applicant’s present mental capacity to give evidence and to allow time for the applicant’s anticipated transfer to Broadmoor.
[18] Noting it was acknowledged that such trial could only proceed for two weeks, being the balance of the 20 days initially set aside for a trial starting on 6 February 2023.
By FDN 206 filed on 17 February 2023, the applicant sought an order varying the trial date. The application was supported by the fifteenth affidavit of Anthony James Kerin sworn on 17 February 2023. In that affidavit, Mr Kerin deposed, inter alia, that:
·on 30 January 2023, the applicant was assessed as to his eligibility to be transferred to Broadmoor and a formal assessment report was in the process of being prepared.
·on 8 February 2023, Dr Harrison was informed that Broadmoor had determined to accept the applicant for transfer and that until such transfer, the applicant remained in seclusion at Farmfield and therefore unable to access the relevant facilities to give evidence.
·a forensic social worker, Ms Townsend, was to be assigned to the applicant upon his transfer to Broadmoor. She had advised that such transfer was to take place ‘in the short term’ and that Broadmoor had the facilities and technology to enable the applicant to give evidence via audio visual link.
·senior and junior counsel had spoken to the applicant via video link from his cell at Farmfield, on 15 February 2023 and, based on his presentation, as detailed therein, both counsel were of the view that the applicant was able to give evidence at trial.
·the applicant would be called as the first witness at trial.
FDN 206 was heard on 20 February 2023.[19] Senior Counsel for the applicant submitted that the applicant’s transfer to Broadmoor was imminent and that subject to the applicant’s legal representatives being able to have further access to him, to prepare for trial, the trial was ready to proceed. He requested an adjournment of the trial to facilitate this.
[19] The transcript of that hearing outlines precisely what was said and by whom at that time.
The application was opposed by the respondents. It was submitted that there remained an absence of information from either Farmfield or Broadmoor as to the applicant’s mental health and his ability to give reliable evidence, even if practical arrangements could be made to facilitate him giving evidence. It was submitted that in any event, the prospect of the applicant giving evidence which was superior in terms of its reliability or credibility to the contents of his earlier police statements was slight. It was further submitted that there had been very little advancement in the applicant’s preparation of those aspects of the trial relating medical causation since the order made on 9 December 2021.
The respondents’ position was that in balancing all relevant factors, the trial should proceed, and separately on the issue of liability.
In determining FDN 206, the Court acknowledged the ongoing prejudice to the respondents insofar as any further delay would further impact on the recollections of witnesses. It acknowledged that the applicant’s inability to give evidence had arisen due to matters beyond his control. In the absence of there being any clear indication of when and if the applicant would, in fact, be able to give evidence, and in the overall interests of justice, the Court determined to vacate the trial date, and to relist the trial for two weeks commencing 14 March 2023.
This date was selected as it allowed for sufficient time for the applicant’s transfer to Broadmoor having regard to the contents of the fifteenth Kerin affidavit and it was convenient to the court and the parties. This date allowed for only nine sitting days, there being no longer period available, such that it was always understood the trial would need to proceed part heard if it remained a trial on both liability and causation.
The Court observed that if the applicant gave evidence, the trial would proceed on both liability and causation, with the applicant to give evidence on both issues[20] and the respondents’ liability witnesses to be interposed, so that their evidence could be heard then, rather than further delayed, with the balance of the evidence heard at a later date.
[20] Subject to the provision of records and/or reports from Farmfield and/or Broadmoor, required by the respondents in order to properly cross examine the applicant.
The Court informed the parties that if the applicant was unable to give evidence at the trial commencing on 14 March 2023, it was likely to grant the order as sought by the respondents in FDN 201, that being an order for a separate trial on liability. As such, no formal order was made on FDN 201.
The action was adjourned to a Directions Hearing on 9 March 2023. At that hearing, Senior Counsel for the applicant advised that the applicant had not yet been transferred to Broadmoor but that was expected ‘any day’. He proposed the trial commence on the basis that the applicant first call his other witnesses on the issue of liability and that the applicant give evidence in the second week of trial.
Counsel for the third and fourth respondents observed that in such circumstances, if the applicant gave evidence on both liability and causation, there would be insufficient time to hear the respondents’ liability witnesses in the nine days allocated, before it being adjourned part heard. Another relevant consideration was the fact the applicant’s solicitors had not received (and therefore not produced) any medical records from either Farmfield or Broadmoor. These were documents required by the respondents for the purposes of cross-examination on issues relating to causation. Such documents are also relevant to the issue of whether the applicant’s illness and/or medication impacts on the reliability of any evidence given by him.
In such circumstances, the Court ordered that the trial remain listed to commence on 14 March 2023 on the issues of both liability and causation. However, to avoid any further delay in the ‘liability’ witnesses giving evidence, and any further impact by the passage of time on the accuracy of their recollections, the Court ordered, pursuant to UCR 172.1, that the evidence heard in the nine days set aside be confined to the issue of liability,[21] with the balance of the evidence to be heard on a date to be set. It was understood that the applicant would not give evidence until the second week of the trial, with other witnesses to be called before him.
[21] That is, evidence relating to the circumstances of and incidental to the alleged assault and the party.
The Trial – thus far
The trial commenced on Tuesday, 14 March 2023.
The applicant opened his case on liability, consistent with the orders made in terms of the evidence to be heard at that time. The applicant called the following witnesses:
·Professor David Pennington, who gave evidence as to the potential mechanism of the applicant’s physical injuries sustained in the alleged assault from his observations of various medical records, photographs and other documents.
·Catherine Chattaway, the applicant’s mother, who attended the party after the alleged assault, and accompanied the applicant to hospital.
·Nicholas Eckert and Declan Heames, friends of the applicant, who attended the party, but did not witness the alleged assault, or what occurred immediately prior to it.
On Thursday, 16 March 2023, Senior Counsel for the applicant informed the court that the applicant was to be transferred to Broadmoor ‘next week’ and requested the applicant give his evidence commencing on Wednesday, 22 March 2023.[22] He stated that he had spoken to Broadmoor and been advised that it could facilitate the applicant giving evidence via video link and ‘the fact that it may be at unusual hours causes them no concern’.[23] The respondents opposed this request, primarily due to concerns that this would not enable the respondents’ liability witnesses to be called within the allocated timeframe.
[22] T 114.6-9.
[23] T 114.32-33.
After hearing submissions, the Court determined to accede to the applicant’s request, noting that the parties and (most) counsel were available to sit into the start of the following week, if necessary, to ensure all liability witnesses could be heard prior to the trial being adjourned part heard.
The applicant was transferred to Broadmoor on Monday 20 March 2023. He gave evidence via video link on Wednesday 22 March 2023 and Thursday 23 March 2023.
Immediately prior to the applicant giving evidence, Senior Counsel for the applicant, for the first time, advised of his client’s opposition to the ‘bifurcation’ of the trial, that is, the court hearing evidence from all witnesses on liability, prior to the applicant presenting evidence on both the issues of liability and causation.[24] The court had not been informed of this opposition at any time prior. There was no formal application made then, or indeed at any time, by the applicant, opposing that course. Had this opposition been conveyed to the Court at an earlier time, this is likely to have affected the Court’s rulings made on 20 February, 9 March and/or 16 March 2023, that is, if the applicant was not prepared to proceed in this manner, the Court may have acceded to the respondents’ request as per FDN 201, and/or refused the applicant’s request to adjourn the trial and/or refused the application to defer hearing the applicant’s evidence until the second week of trial.
[24] Notwithstanding the language used by Senior Counsel, that is, ‘we do still formally oppose’, suggested, erroneously, this opposition had been made clear to the court at an earlier stage; T 212.9. It had not.
The applicant commenced giving evidence at 7:53am on 22 March 2023 via video link from Broadmoor. He was accompanied by a nurse. The court was requested to take a break every hour. There was a scheduled break at 8:47am for a duration of 21 minutes and a further unscheduled break at 9:20am for 10 minutes (to enable the applicant to retrieve materials from his room, that were meant to be with Broadmoor staff as per my orders of 16 December 2022). At 9:40am the applicant advised he was tired, and the Court adjourned.
Arrangements were made for the Court to start sitting at 7:00am on Thursday 23 March 2023, to enable the applicant’s evidence to be heard. Prior to the video link with the applicant being restored, Senior Counsel for the applicant advised as follows:[25]
MR OWER:Before we commence can I just inform your Honour of the position of Broadmoor. Received communication over night that while Mr Chattaway will be made available this morning for certain reasons which I'll go into another time, it's unlikely he will be available tomorrow, and indeed Broadmoor do not wish to provide him the facilities to be made available for cross-examination during their night time. If there are to be further sessions their preference would be that he be in cross-examination during the day.
This is a matter that can be debated at another time, perhaps later this morning after your Honour has the ceremonial sitting. I simply give my friends notice now that there is a possibility that this time we have now will be the only time Mr Chattaway will be made available.
HER HONOUR: At this sort of hour of the morning?
MR OWER:Fullstop. That is our one potential issue regarding Dr Nabi's email. As I say that's a matter that we can all debate at length. I'm sure my friends have certain things they want to say about it at a later time, but given that Mr Chattaway is available now and this may be the only time, I simply flag that for the notice of my friends and advise them to cut their cloth accordingly.
[25] T 252.1-25.
The applicant resumed his evidence-in-chief at 7:09am. Cross-examination commenced at 7:18am. At 7:57am, there was a scheduled break for a duration of 20 minutes. Cross-examination of the applicant concluded at 9:08am.
The respondents made no submission to the effect that the manner, and/or haste, in which they cross-examined the applicant caused them any prejudice. Notwithstanding this, the circumstances as presented meant there was considerable time pressure imposed on this process. Had the applicant been unable to complete his evidence, on the topic of liability, it was inevitable that the trial would have been adjourned at that time to facilitate the applicant’s return to complete that evidence, on a date that could not be determined with any certainty, thus causing further delay and potential prejudice to the respondents.
At the conclusion of the applicant’s evidence, the applicant closed his case on liability.
The second respondent gave evidence and called evidence from another guest at the party, Jordana McCallum, who witnessed the alleged assault. Ms McCallum was the only witness, other than the applicant and the second respondent, who gave evidence as to their observations of what occurred immediately prior to and during the alleged assault. Those other witnesses who attended the party, and gave evidence, were only made aware of the alleged assault, after it had occurred. Those other witnesses gave evidence to the effect that they did not see or hear any of the immediate circumstances surrounding the alleged assault.
The third and fourth respondents gave evidence. In addition, the third and fourth respondents called evidence from others who were at the party, namely their son, Owen Stankiewicz, their daughter, Eleanor Stankiewicz, and their friends, Tim and Keryn Allan. A statement of another party attendee, Marcel Blanch-de Wilt dated 30 March 2023, was tendered by consent.[26] Dr Jason White was also called to give evidence relating to the applicant’s alleged level of intoxication at or about the time of the alleged assault and the potential effects of the same.
[26] Exhibit R38.
The applicant has closed his case on liability, subject to potentially calling one rebuttal witness on a discrete issue. The second, third and fourth respondents have closed their cases on liability. As the trial remains a trial on the issues of both liability and causation, the Court is yet to hear any submissions on liability.
Order(s) sought and powers relied upon
Shortly prior to the third and fourth respondents closing their case on liability, counsel for the third and fourth respondents advised the Court that his clients intended to apply for judgment on the evidence heard to date. The Court requested the third and fourth respondents file an application, identifying the precise form of any orders sought and the rules relied upon.
By FDN 225, the third and fourth respondents seek that the Court proceed to judgment on the issue of liability, it having heard the evidence of all parties on liability and the respondents having closed their cases on liability.
Specifically, the third and fourth respondents seek an order in the following terms:
1.The Court finally determine the issue of liability:
1.1 As between the applicant and the second respondent, the liability issues are those pleaded in Statement of Claim Revision 1, paragraphs 1 to 7 and 10 and second respondent’s Defence Revision 1, paragraphs 1 to 6.
1.2 As between the applicant and the third and fourth respondents, the liability issues are those pleaded in Statement of Claim Revision 1, paragraphs 1 to 4 and 8 to 10 and the third and fourth respondents’ Defence Revision 1, paragraphs 1 and 2.
2.That the determination proceed on the basis of:
2.1 The evidence that has been called by each party on the issue of liability.
2.2 An assumption that the accuracy and the reliability of the applicant’s evidence as to the events at the party was not affected by his mental illness.
The respondents seek to invoke the power provided by UCR 12, s 8 of the DCA and/or the inherent jurisdiction of the Court.
UCR 12(1) states:
(1)The Court may on its own initiative, or on application by any person, make any order that it considers appropriate in the interests of justice.
As such, the rule effectively replicates a fundamental aspect of the Court’s inherent power, namely, to act in the interests of justice.
Section 8 of the DCA outlines the Court’s jurisdiction, which includes the same civil jurisdiction (both in law and equity) as the Supreme Court at first instance, save for some expressed qualifications.
Alternatively, the third and fourth respondents seek an order as per FDN 201, that the Court order a separate trial on liability pursuant to UCR 151.1(2). The legal principles applicable to such an application are as set forth in the Reasons for Decision on FDN 91.[27]
[27] Chattaway v Lloyd and Ors [2021] SADC 141 at [72]-[79]. I do not intend to repeat those principles but have applied those principles in my Ruling herein.
The application is not an application for summary judgment and the principles relating to such applications are inapplicable.
Third and Fourth Respondents’ Submissions on Application
The third and fourth respondents (hereinafter referred to as the respondents for ease) submitted that notwithstanding the trial had been listed on both the issues of liability and causation, what had in fact occurred was the hearing of a separate issue, namely liability, as per UCR 151.1(2).
It was acknowledged that the same principles considered relevant by the Court in its determination of FDN 91 remained relevant. However, it was submitted that since FDN 91 had been determined, circumstances had changed. There was now certainty with respect to many of the issues which were relevant to the balancing exercise required to be conducted by the Court, which matters had been uncertain at the time FDN 91 was determined. For example, save for one particular issue,[28] the Court had heard evidence on liability, and it is now known that evidence strictly relevant only to causation will not be heard any earlier than 20 November 2023.
[28] Being the evidence of a potential rebuttal witness, Officer Pipinias.
It was submitted that the Court was now in a much stronger position to assess what would be the most efficient course for the action, such that it was in a very different position to that which existed at the time it considered FDN 91.
The respondents acknowledged that a reason for the Court’s refusal to order a separate trial on liability related to the potential crossover of medical evidence being relevant both to liability and causation. Specifically, counsel for the respondents referred to what is set forth in paragraphs 101 and 102 of my Reasons for Decision dated 9 December 2021, namely that the Court would be required to hear medical evidence to determine whether the applicant’s ability to give reliable and credible evidence was compromised by his mental illness and/or the effects of medication.
To overcome this issue, the respondents asked the Court to assume that the accuracy and reliability of the applicant’s evidence as to the events at the party was not affected by his mental illness.
In other words, the respondents asked the Court to put to one side the potential impact on the reliability of the applicant’s evidence, presumably from either medication and/or the effect of his mental illness and assess the applicant’s evidence on liability at its highest.[29] The respondents asked the Court to assume that the applicant can separate fact from fiction in terms of his ability to recall the alleged assault.
[29] Although the ‘concession’ made by the third and fourth respondents did not refer to the potential impact of medication.
Importantly, the respondents confirmed that if the application was refused, and the trial remained a part heard trial on both liability and causation, they were not prepared to make a similar concession.
It was submitted that the approach agitated by the application(s) therefore favoured the applicant.
It was submitted that on a practical basis, the Court could now proceed to make findings of fact on the issue of liability in the usual way, that is by assessing the consistency of the accounts of the various witnesses, including the applicant, both internally and as between each other, by considering contemporary and objective materials, the overall logic of the case and matters such as courtroom demeanour.
As all of the evidence was before the Court on liability, it was submitted the Court could assess the reliability and credibility of the evidence of each witness on that topic and safely make appropriate factual findings.
As to that submission, the Court reminded Senior Counsel of what was set forth in paragraphs 102 and 103 of the Reasons for Decision dated 9 December 2021, namely:
In addition, to properly assess the applicant’s reliability and credibility on the issue of liability, the Court will need to test that evidence on a variety of critical issues by reference to other oral and documentary evidence. In doing so, the Court will be informed by hearing the applicant’s evidence on issues going beyond that of the incident itself and addressing other issues, such as the development of his symptoms over time and in particular the evidence he gives as to the symptoms he suffered in the period up to and including October 2012.
The Court’s findings as to the applicant’s reliability and credibility may be informed by other evidence, including oral evidence from doctors who have examined the applicant since the incident and any contemporaneous records made of the applicant’s alleged symptoms, complaints and treatment.
The Court noted that in the ordinary course, findings that it made as to a witness’ reliability and credibility are informed by a consideration of all of the witness’ evidence, over a cross-section of topics, having regard to all of the evidence. It was observed that this could work two ways, having heard other evidence, the Court may be of the view that this demonstrates deficiencies in the reliability of a witness’ evidence but alternatively, it may demonstrate the opposite.
Senior Counsel for the respondents submitted that he could not conceive of a way in which the applicant may be prejudiced if the Court did not go on to hear his medical causation testimony before deciding his liability testimony.[30] Further, it was submitted that in any event, the Court should weigh the chance of that occurring (that is, the Court assessing the applicant’s evidence in a more favourable light, having heard his evidence on medical causation) against the prospect of the matter proceeding to a 20 day hearing on causation in the absence of any determination on liability.
[30] T 16.10-13, 18 April 2023.
It was submitted that the trial had reached the stage where all of the facts, relevant to the determination of the issue of liability, were ascertainable. In accordance with the reasoning in Bass v Permanent Trustee Co Limited, [31] as the precursors for the determination of facts had been completed, if it was otherwise appropriate to determine matters which may result in an early and more efficient decision, then it was appropriate for the Court to proceed to do so. It was submitted that in this case, that position had been reached.
[31] (1999) 198 CLR 334 at [53] and [56].
It was acknowledged that the Rules did not specifically provide for a decision or judgment to be made in respect of any particular aspect of a case, other than where a separate trial had been ordered pursuant to UCR 151. However, it was submitted the Court had an inherent jurisdiction to try and determine any separate issue or question before other questions were determined. Counsel referred to what was said by the Full Court of the Federal Court in Landsal P/L (In Liquidation) and Ors v REI Building Society, albeit in respect of that Court’s rules, namely:[32]
There is nothing in O.29 that indicates that that Order is the sole source of power in the Court to determine an action in parts. The Order is really not concerned with that concept at all. Rather is it concerned to ensure that the Court has power to determine a particular question or issue otherwise than in a judgment that disposes of the entire proceeding. The Order does not limit the implied power of the Court to conduct the trial of an entire action by a procedure that will best conduce to the efficient disposition of the whole litigation.
[32] [1993] FCA 121 at [27].
It should be noted that in Landsal’s case, O’Loughlin J heard evidence and then published preliminary “findings of fact and law” rather than pronouncing any order or entering any formal judgment. Landsal sought to appeal those findings. The appeal was dismissed as being incompetent as the Judge had not pronounced any judgment or order, nor could he be seen to have intended to do so.
The Full Federal Court noted that the process adopted by O’Loughlin J was permissible, both under the rules of the Federal Court and in accordance with its implied jurisdiction.
It was submitted that the process undertaken by O’Loughlin J was “exactly what has happened in this case”.[33] However, there is a significant distinction, namely that in this action, the trial was expressly ordered to proceed as a determination of both the issues of liability and causation. The process adopted by O’Loughlin J in Landsal’s case was entirely different.
[33] Outline of Submissions at [21].
The respondents submitted the Court would not be contravening any rule or statute in making the order as sought and that on balance, having regard to all relevant considerations, it was appropriate to now proceed to determine liability.
The following factors were submitted to be in favour of the discretion to determine liability now being exercised, namely:[34]
1.That the decision involved a conclusive or final decision, based on concrete and established facts which would quell a controversy between the parties;
2.The issue was ripe for determination;
3.The decision would contribute to the saving of time and cost by substantially narrowing the issues or even lead to the disposal of the action; and
4.The decision may contribute to the settlement of the litigation.
[34] Outline of Submissions at [22], adopting the reasoning in Reading Australia P/L v AMP [1999] FCA 718 at [8].
Counsel for the respondents submitted that there was now no evidence which would overlap any trial on the issue of liability and causation, having regard to the assumption that the Court was asked to make at paragraph 2.2 of the proposed order sought.
As such, it was submitted that there was no longer a question as to whether there should be a division in the hearing of the two issues, only whether the determination of the issue of liability should await the outcome of a much later decision on the question of causation.
It was submitted that there was no guarantee that the applicant would, in fact, give evidence at ‘the causation trial’ having regard to the significant difficulties occasioned in the giving of his evidence to date. However, even if he did, that was irrelevant to the Court’s determination of the application(s), having regard to the respondents’ concession as outlined at paragraphs 72 and 73 herein. The applicant’s medical condition was therefore no longer a matter to be taken into account when assessing his liability evidence and was no longer a factor to balance in the exercise of the Court’s discretion.
It was submitted there was now no advantage to the applicant in deferring further consideration of the question of liability and there was an advantage to all parties and to the administration of justice in expediting the decision on that aspect.
In this respect, the respondents referred to the overall objects of the Rules and in particular, UCR 12.2 which gives the Court a discretion to make orders having regard to the Object of the Rules, that is, to facilitate the just, efficient, timely, cost effective and proportionate resolution or determination of the issues in proceedings as governed by the Rules.
It was submitted that there would be considerable benefit to the parties to determine the issue of liability now. If the applicant was successful that would relieve a great burden from him, similarly, if the second respondent was successful, a great burden would be removed from him. In that respect, it was submitted that if the second respondent knew he had failed on liability, then he may now be able to make better decisions as to how he proceeded to defend the case with respect to medical causation and quantum.
It was submitted that in this case, the question of liability was straight forward and could be dealt with in a relatively short fashion. This would save considerable time and cost and achieve the potential or desired result of the early resolution of the dispute and be a more efficient way to conduct the business of the Court. Even if there was an appeal, this would be of little impact, given the action will not be ready to proceed to trial on the issue of quantum for several years.
Further, it was submitted that the Court could have regard to other matters, such as the prejudice that had been caused to the respondents thus far, given how the action had been conducted by the applicant, that is, with very little adherence to procedural orders made to date and continued non-compliance with both the Rules and Court orders.
It was submitted that in all of the circumstances it was appropriate for the application to be granted and that there was no proper basis to further delay resolution of the issue of liability.
Applicant’s Submissions on Application
In opposing the application, Senior Counsel for the applicant reminded the Court that it had already considered and determined an application for a separate trial on liability and had refused that application.
The trial had commenced on both the issues of liability and causation.
While it was conceded that the Court had an implied power to regulate its own procedures in the administration of justice and thus had the power to make the order as sought, it was submitted that the particular circumstances of this case were such that it was not appropriate to proceed to do so.
As to what had changed since the Reasons delivered on 9 December 2021, the applicant submitted that the only change in circumstance was the respondents’ concession not to challenge the reliability and credibility of the applicant’s evidence on a medical basis.
It was noted that there was an unspoken assumption in the application that if a judgment was entered now on liability, it would be in favour of the respondents. It was submitted that should that not occur, the decision would constitute one of findings only, and, having regard to the reasoning of the Court in Landsal, the matter would need to proceed to final determination on the balance of the issues in question. As such, there would be no benefit to any party by way of a separate determination on the issue of liability in such circumstances.[35]
[35] Noting that the respondents considered that the Court would be entitled to assume that there had been some “loss” sustained by the applicant, such that a judgment could be entered which was capable of appeal, on the separate issue of liability.
Consideration
I am satisfied that the Court has the power to make the order as sought by the respondents. That power derives either from UCR 12 and the implied power the Court has to regulate its own procedures in the administration of justice and/or pursuant to UCR 151.1.
I disagree with the submissions made by Senior Counsel for the applicant as to the effect of Landsal’s case. I acknowledge that in their current form, the defences of the second, third and fourth respondents deny the applicant has suffered any loss or damage. However, if the Court makes the order as sought, and then determines liability in favour of the applicant, the Court could safely find some damage had been caused to the applicant, having regard to the evidence already before the Court.
In such circumstances, the order made would be in terms of ‘Judgment for the applicant as against [X Party/Parties] for [Y%] of his damages to be assessed’, being a final order or judgment. If the Court found that the applicant had failed to establish liability as against any of the second, third or fourth respondents, the action against those respondents would simply be dismissed. Again, this order would have effect as a final order or judgment.
The issue is whether, in all of the circumstances, the Court should exercise its power and grant the orders as sought by the respondents.
In considering this issue, I am satisfied that the Court should have regard to the same factors it is required to consider in determining an application for separate trials, as outlined in my Reasons for Decision dated 9 December 2021. In addition, the Court should have regard to all relevant matters, including those specifically listed in UCR 12.2, and the Objects of the Rules, in determining whether it is ultimately in the interests of justice, for the order to be made.
In determining FDN 91, the Court undertook the necessary balancing exercise to determine whether it was, ultimately, in the interests of justice for the trial on liability to proceed separate to any trial on causation (and quantum). It determined, at that time, that it was not. The Court is being asked to reconsider that position, having regard to the various changes in circumstances which have occurred since the Reasons for Decision were delivered on 9 December 2021.
Notwithstanding the submissions of the applicant to the contrary, the Court is satisfied that there have been many changes in circumstances since FDN 91 was determined. At that time, it was estimated a trial on liability would take approximately 10 days[36] and a maximum of 10 further days would be required if the trial proceeded on both liability and causation. At that time, the Court was able to accommodate a 20-day trial as early as May 2022.
[36] Noting this estimate assumed that medical evidence addressing any impact on the applicant’s ability to give reliable and credible evidence from either his illness and/or medication was relevant to the determination of liability as a separate issue.
In fact, the trial was not listed to proceed until 6 February 2023, and then ultimately proceeded part heard, commencing on 14 March 2023. The Court has now heard all evidence relating to the circumstances of the party and the alleged assault, save for brief potential rebuttal evidence from one witness. That evidence was heard over 10 separate days, some of which were half days (or shorter). It is now estimated that a further 20 days will be required to hear evidence relevant to causation, with that hearing to commence no earlier than 20 November 2023.
Although the trial did not commence on 6 February 2023 due to the state of the applicant’s mental health and his seclusion at Farmfield at that time, the fact remains that the applicant was, and remains, in default of numerous court orders relating to the issue of causation.
Despite submissions to the contrary, the Court is not satisfied the applicant was ready to present his envisaged case on causation during the 20-day period set aside for the trial, had it commenced either on 6 February or 14 March 2023. More than a year has passed since FDN 91 was determined and more than 18 months since that application was first argued. There has been plenty of time for the applicant to prepare for the trial on both issues, but very little progress made at all in preparation of the case for trial on causation.
There remains genuine uncertainty and concern as to whether the applicant will cure these procedural deficiencies at any time soon. If he does not do so, this has a ‘knock on effect’, as steps taken by the applicant on this issue will necessarily dictate if any further steps are taken by the respondents (ie obtaining answering expert reports), thus jeopardising the resumption of the trial in November.
When FDN 91 was argued and determined, the applicant lived in Adelaide. When FDN 182 was argued and determined, the applicant was a resident at Farmfield and the Court had the benefit of material from Dr Harrison confirming how and when the taking of evidence by video link would work in practice and confirmation from Dr Harrison that the applicant was mentally well enough to participate in his court case.
The current state of the applicant’s mental health remains unknown to the Court. The applicant has not presented any updated medical evidence to the Court from either Farmfield or Broadmoor addressing this critical issue, notwithstanding it was submitted that this material would be provided upon the applicant signing authorities for its release.[37]
[37] Noting the Court is uncertain whether any such material has been disclosed to the respondents. This had not occurred as at 18 April 2023.
During the trial thus far, there were significant issues encountered during the hearing of the applicant’s evidence. By way of explanation, the only evidence before the Court is that contained in exhibit ‘AJK 29’ to the seventeenth Kerin affidavit, being a short letter from Dr Nabi, Consultant Forensic Psychiatrist dated 15 May 2023.
In that letter, Dr Nabi confirmed these issues related to the applicant’s mental state and whether he was ‘well enough to be taken out of the seclusion room and into a meeting room to attend the video link, and the risk he may pose to the staff who are accompanying him’. The language used gives the Court some cause for concern as to the true state of the applicant’s mental health during his evidence thus far.
Dr Nabi stated that it was hoped that with new treatment, those same issues would not arise when the trial resumed in November, albeit the applicant’s response to such treatment was ‘difficult to predict’.
Dr Nabi confirmed that Broadmoor can facilitate a video link for the applicant to give evidence, with a preference, but not a requirement, for that to occur between 09:00 – 17:00 hours GMT. No information has been received to confirm how long the applicant would be able to give evidence in any session, over how many consecutive days and/or the frequency with which breaks may be required.
Having regard to Dr Nabi’s letter and what is otherwise known as to the chronic nature of the applicant’s condition, and his demonstrated susceptibility to relapse, there remains real doubt as to whether the applicant will be well enough to give evidence at the part heard trial in November, whether he will remain well enough to do so throughout the duration of that part heard trial and/or whether it may ultimately be necessary for the trial to be further adjourned for this reason.
The Court is satisfied that these matters, considered in isolation, favour the making of the order as sought.
However, as previously stated, the primary reason the Court determined it was not in the interests of justice to grant the order sought for a separate trial on liability in FDN 91, was the overlap in the evidence to be heard at the trials on liability and causation.
One such category of overlapping evidence was medical evidence. The Court considered that in order to make critical findings of fact relevant to the issue of liability, it needed to hear medical evidence as to whether the applicant’s ability to give both reliable and credible evidence on these matters was in any way compromised, either because of the effects of medication and/or his mental illness.
The respondents have sought to address this by asking the Court to assume, for the purposes of the application, that the applicant’s evidence is not affected by his mental illness. This is an assumption the Court is being asked to make only if the Court determines liability separately from the other issues in dispute.
In making this ‘concession’, the respondents argue that the applicant’s evidence on liability therefore cannot be ‘bolstered’ by his evidence on causation and that as such the applicant cannot be prejudiced if the Court first determines liability. That is, if the Court, acting on that assumption, rejects the applicant’s evidence on the factual issues regarding the alleged assault and the party, the applicant cannot be in any better position if that evidence is assessed by the Court after it hears his evidence on causation, absent that assumption.
How and why the alleged assault occurred is in dispute. By way of very general summary only,[38] the applicant contends that he was assaulted by the first and second respondents in an unprovoked attack during the party and that bottles were used as weapons in the assault. Further, the applicant contends that the first and second respondents were gate crashers, who were allowed to stay at the party by Owen Stankiewicz, after consultation with his mother, the third respondent, in circumstances where the first and second respondents had offered to fight him and another partygoer.
[38] Noting this is by no means meant to be a thorough and/or detailed discussion or analysis of the evidence, and the court is yet to hear any submissions with respect to the evidence.
The applicant’s evidence was that the party was largely unsupervised, alcohol was supplied by the hosts to attendees including those who were underage and that many partygoers were vomiting due to their alcohol intake.
Each of these aspects of the applicant’s evidence was in dispute and evidence was called to challenge this evidence.
The second respondent gave evidence disputing the applicant’s version of the alleged assault, both insofar as it was said to be unprovoked and as to the use of bottles. However, the second respondent, like the applicant, has a significant interest in the outcome of the matter. The only ‘independent’ witness who saw the alleged assault, Ms McCallum, gave evidence that the applicant struck the first respondent before being hit by both the first and second respondents, and denied the use of bottles. However, she did not see the applicant strike the second respondent prior to him striking the applicant (as claimed by the second respondent). Further, her recollection as to certain aspects of the party was inconsistent with that of the second respondent.
While there was no evidence to support the applicant’s claim that numerous partygoers were drunk to the point they were throwing up, the applicant’s blood alcohol reading was estimated by Prof White as being between 0.140% and 0.151% at the time of the alleged assault,[39] which confirms that at least one underage partygoer was intoxicated, and to a significant extent, during the party.
[39] Exhibit R35 at p 2.
Professor Pennington has given evidence, based on his analysis of various documents, that the physical injuries sustained by the applicant in the alleged assault are unlikely, on balance, to have been caused by a punch or punches and more likely to be consistent with the applicant being struck in the nose by an object such as a heavy bottle, being consistent with the applicant’s evidence. There are reports and a statement in evidence,[40] from the treating surgeon, Professor David David, expressing a somewhat different opinion, but Professor David was not called to give oral evidence.
[40] Exhibits R20, R21 and R22, with the weight to be attributed to the information contained therein to be the subject of submissions and determination by me.
Whether the third respondent was involved in any decision to allow the first and second respondents to stay at the party and the circumstances surrounding this, was the subject of evidence from both Owen Stankiewicz and the third respondent, who denied this.
However, as to his evidence generally, Owen Stankiewicz acknowledged that what he told police in a statement made on 11 January 2011 was different in certain aspects to his evidence, with the statement being considerably more favourable to the applicant.
The third respondent’s evidence differed from the evidence of Catherine Chattaway (Mrs Chattaway) as to the circumstances in which an ambulance was called. While this is not a critical finding, the fact is, these witnesses gave conflicting evidence on this topic. The Court will be asked to make findings as to the reliability and credibility of the evidence given by both the third respondent and Mrs Chattaway on other more relevant and critical matters. Mrs Chattaway will give further evidence on matters relating to causation. The Court’s findings as to her reliability and credibility will be informed by the Court assessing the whole of the evidence given by Mrs Chattaway, in the ordinary course.
The Court’s findings as to the reliability and credibility of the applicant’s evidence are critical to the applicant’s case on liability as against the second, third and fourth respondents.
The Court considers it artificial to approach this task in a manner consistent with the assumption as set forth in paragraph 2.2 of the Draft Orders sought. While it could be said that to do so only favours the applicant, if the Court accepts the applicant’s evidence on some or all of these contested facts on liability, how then does it deal with assessing the reliability and credibility of the applicant’s evidence when it hears the evidence at trial on causation? What if medical evidence presented then is such that it would have impacted, adversely, on the Court’s earlier assessment of the applicant’s evidence on liability? How can that be fair to the respondents? The Court would be put in an invidious situation.
I agree with the submission that the application is based on an assumption that if the Court proceeds now to determine liability, the applicant’s evidence will be rejected.
In the absence of there being clear and undisputed objective evidence to refute the applicant’s version, the Court’s assessment of the applicant’s evidence will be critical in its determination of the issues in dispute. The Court considers that it can only properly fulfill its critical task, of determining the facts in dispute, if armed with all available evidence.
The Court remains concerned that further practical difficulties may be encountered when the applicant is due to return to give evidence on causation in November. The Court acknowledges the repeated and continuous failures of the applicant to comply with procedural orders and the fact that there have been many unnecessary delays in these proceedings.
The Court also acknowledges that if liability is determined now, it is possible that there will be costs savings and other efficiencies, for example, either through a party or parties being absolved from any finding of liability and therefore relieved from further participation in the action, through encouraging further settlement discussions and/or a final determination of the action at first instance.
However, having carefully weighed these and all relevant factors, the Court is of the view that it is not in the overall interests of justice to give judgment on liability, prior to hearing the evidence on causation. It is not satisfied that, in all of these circumstances, the utility, economy and fairness to the parties would be beyond question, if the Court now ordered liability be tried separately from causation.
Orders
1.As to both FDN 201 and FDN 225, I decline to make the order(s) as sought.
2.I will hear the parties as to any further orders.
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