Chattaway v Lloyd and Ors - [2021] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHATTAWAY v LLOYD & ORS
[2021] SADC 141
Reasons for Decision of her Honour Judge Schammer
9 December 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION
The applicant, Nicholas Chattaway, by his litigation guardian, claims damages for personal injuries allegedly sustained by him on 5 December 2010 when he was a guest at an 18th birthday party at premises owned and occupied by Ms Dansie and Mr Stankiewicz (the third and fourth respondents).
The applicant claims that while on the premises, and at the party, he was struck to the face by both Mr Lloyd (the first respondent) and Mr Dunn-Lawless (the second respondent), including with glass bottles (the incident).
The applicant claims that the actions of the first and second respondents constituted a deliberate assault upon him or, in the alternative, were the result of an application of force by them resulting from their negligent and/or reckless and/or excessive and/or indifferent actions. Further, he claims the third and fourth respondents were negligent, inter alia, in allowing the first and second respondents to remain on the premises and in failing to ensure that guests at the party were safe from foreseeable risk of injury while on the premises.
The applicant claims to have suffered physical injuries as a result of the acts (and omissions) of the respondents, including fractures to the face, nose and orbit, resulting in partial loss of peripheral vision and partial loss of taste and smell. In addition, the applicant claims to have suffered psychological injuries including post-traumatic stress disorder and schizophrenia, resulting in significant loss and damage, including a need for extensive ongoing care and assistance.
The respondents deny liability for any injury, loss and damage allegedly sustained by the applicant. Further, the respondents deny that insofar as the applicant may have suffered any physical injuries in the incident, that there is any link between such injuries and the subsequent development by him of psychological injuries, including schizophrenia, and say that the applicant would have developed and did develop schizophrenia irrespective of any physical injuries sustained as a result of the incident.
The issues of liability, causation and quantum are in dispute.
The third and fourth respondents, supported by the second respondent, seek an order pursuant to r 151.2 of the Uniform Civil Rules 2020 (UCR) that there be a separate trial on liability. The respondents submitted that there was a clear demarcation and no overlap in the issues to be determined as to liability, with only the possible evidence of the applicant in common on all issues. It was submitted that any trial on liability was ready to proceed, would take between eight to ten days, and should proceed forthwith having regard to the lengthy delays already occasioned in the matter.
Conversely it was submitted that there was considerable further expense to be incurred in preparation for any trial on the issues of (medical) causation and quantum, that a trial addressing the issue of causation would add several weeks to the length of trial, and that a trial on all issues would be delayed for many years while relevant issues relating the applicant's care needs were determined.
The application is opposed by the applicant. The applicant presently instructs that he will give evidence at trial. The applicant contends that there is considerable overlap in the evidence required to be heard on the issues of liability and causation, and in particular, that in each instance, the court will need to make findings as to the reliability (and credibility) of the applicant's evidence, which will be informed, at least in part, by the hearing of medical evidence.
The applicant acknowledged that it would be several years before any trial on quantum would be ready to proceed.
Held: refusing the application.
The court is required to assess the reliability and credibility of the applicant's evidence at any trial on liability, and at any trial on causation. In doing so, the court will need to hear evidence as to the nature and extent of the applicant's mental illness, the treatment he has received, and the impact that illness and treatment has had, at any time, including at trial, on the applicant's ability to accurately recall the circumstances of the incident, and the progression of his symptoms thereafter. However, having regard to the particular circumstances of this case, and the uncertainties relating to the applicant's future care requirements, it is just and fair in all of the circumstances, for a separate and later trial to be heard on the issue of quantum.
Orders:
1. The application is refused.
2. Pursuant to UCR 151.1, the trial on the issues of liability and causation is to proceed before any trial on the issue of quantum.
3. Costs of and incidental to the application to remain reserved until further order.
4. I will hear the parties as to any further orders sought.
Criminal Law Consolidation Act 1935 (SA) s 269; Civil Liability Act 1936 (SA) s 34, referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Parissis and Ors v Bourke [2004] NSWCA 373; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87; Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor (No.2) [2011] SASC 92; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, considered.

CHATTAWAY v LLOYD & ORS
[2021] SADC 141
[Civil]
Introduction

The applicant, Nicholas Chattaway (date of birth: 1/2/1993), by his litigation guardian, claims damages for personal injuries allegedly sustained by him on 5 December 2010 when he was a guest at an 18^th birthday party (the party) at premises owned and occupied by Ms Dansie and Mr Stankiewicz (the third and fourth respondents).
The applicant claims that while on the premises, and at the party, he was struck to the face by both Mr Lloyd (the first respondent) and Mr Dunn-Lawless (the second respondent), including with glass bottles (the incident).
The applicant claims that the actions of the first and second respondents constituted a deliberate assault upon him or, in the alternative, were the result of an application of force by them resulting from their negligent and/or reckless and/or excessive and/or indifferent actions. Further, he claims the third and fourth respondents were negligent, inter alia, in allowing the first and second respondents to remain on the premises and in failing to ensure that guests at the party were safe from foreseeable risk of injury while on the premises.
The applicant claims to have suffered physical injuries as a result of the acts (and omissions) of the respondents, including fractures to the face, nose and orbit, resulting in partial loss of peripheral vision and partial loss of taste and smell. In addition, the applicant claims to have suffered psychological injuries including post-traumatic stress disorder and schizophrenia, resulting in significant loss and damage, including a need for extensive ongoing care and assistance.
The respondents deny liability for any injury, loss and damage allegedly sustained by the applicant. Further, the respondents deny that insofar as the applicant may have suffered any physical injuries in the incident, that there is any link between such injuries and the subsequent development by him of psychological injuries, including schizophrenia, and say that the applicant would have developed and did develop schizophrenia irrespective of any physical injuries sustained as a result of the incident.
The issues of liability, causation and quantum are in dispute.
Application
By FDN 91, the third and fourth respondents, supported by the second respondent, seek an order pursuant to r 151.2 of the Uniform Civil Rules 2020 (UCR) that there be a separate trial on liability (application).
The application is supported by the eighth and ninth affidavits of David William Johns, sworn respectively on 30 March 2021 and 18 June 2021 and the second affidavit of Thea Marie Paleologos sworn on 30 June 2021.
The third and fourth respondents also filed Written Submissions dated 21 June 2021 and a List of Authorities.
The application is opposed by the applicant. The applicant relies on the sixth affidavit of Anthony James Kerin sworn on 15 June 2021 and Written Submissions dated 29 June 2021.
The application was argued before me on 30 June 2021, at which time I reserved my decision. As will be discussed more fully in these Reasons, the primary basis upon which the applicant opposed the application was that a fundamental issue in dispute at trial, with respect to each issue, will be the reliability and credibility of the applicant.
The applicant has described suffering flashbacks and nightmares of the incident, since the incident.[1] The applicant has been heavily medicated for many years in order to treat his mental health issues. During the argument, the issue as to what extent any evidence that was to be given by the applicant, at trial, may be reliable, having regard to the nature and extent of his illness, and the potential effect on his memory by the nightmares and/or flashbacks and/or the effect of his medication regime, was canvassed. Counsel for the applicant acknowledged that a matter to be determined at trial was whether the evidence given by him, as to his recollection of the incident, was a product of delusion.
[1] Precisely when these were first suffered by him is a significant issue in dispute.
Counsel for the applicant also raised the spectre of the Court considering whether, in order to determine the application, it required the applicant to elect whether or not he would be giving evidence at any trial.
At a Directions Hearing on 10 August 2021, I informed the parties that having carefully considered the application, it was, in my view, premature for the application to be determined, in the absence of there being any evidence addressing the issue of the applicant’s capacity to give evidence at trial. In the absence of such evidence, those advising the applicant could not be fully informed as to whether he was, in fact, to be called to give evidence. If, in fact, there was medical evidence, obtained by the applicant, which questioned the applicant’s capacity to give evidence, then that would inform that decision.
The applicant was ordered to file and serve further medical evidence, in the form of a medical report, addressing the extent to which his mental illness and/or treatment will impact on his ability to give accurate and reliable evidence.
The applicant’s solicitors subsequently requested, and were granted, an extension of time within which to provide that evidence.
On 19 November 2021, the applicant’s solicitors filed a copy of a report from Dr David Kutlaca, Psychiatrist, dated 16 November 2021. In that report Dr Kutlaca stated, inter alia:
·that he had last assessed the applicant on 2 March 2021, at which time he considered he had the capacity to instruct solicitors.
·that at the time of that assessment, notwithstanding the effect of the applicant’s psychopathology and professional intervention to treat that illness, he was able to obtain a detailed history from the applicant as to the circumstances of the incident and treatment thereafter, such that, in his opinion, the applicant ‘should be able to give evidence reliably’.
At a Directions Hearing on 22 November 2021, the applicant’s solicitors were ordered to inform the Court and the parties, within 14 days, as to whether the applicant will be called to give evidence at any trial on the issue of liability.
On 7 December 2021, the applicant’s solicitors sent an email to the Court stating the ‘applicant instructs he will be giving evidence in the action at trial.’
For the reasons which follow, the application is refused.
However, the Court is satisfied that a trial addressing both the issues of liability and causation, should be heard separately from any trial on the issue of quantum.
Background
The procedural background of this action is set out in detail in the Reasons for Decision of Master Blumberg dated 7 September 2020.[2] I refer to and adopt the chronology of the action as set out therein.
[2] Decision No 8 of 2020.
The action was issued on 31 January 2014, shortly prior to the applicant attaining the age of 21, with service of the action effected on the second, third and fourth respondents during August 2014. The action is yet to be served personally on the first respondent.
In late 2014, the applicant was charged with the attempted murder of his parents as a result of an incident on 29 October 2014. The applicant was found mentally incompetent to commit those offences and on 16 December 2016 a supervision order was made under s 269O of the Criminal Law Consolidation Act 1935, whereby the applicant was committed to detention with a limiting term of ten years to commence on 16 December 2016. He remains subject to that supervision order.
The applicant’s parents are supporting him in an application to be deported to his country of birth, the United Kingdom, which process is continuing. In addition, the Minister for Immigration has given the applicant notice that he is considering cancelling his visa, and if that occurs, the applicant is likely to be deported to the United Kingdom.
Issues in Dispute
Liability
As between the applicant and each respondent, the relevant issues to be determined are:
1.Did the respondent owe the applicant a duty of care?
2.If so, what was the scope of that duty of care?
3.Did the respondent breach any duty of care owed to the applicant?[3]
[3] Noting counsel for the third and fourth respondents confirmed that these were the issues sought to be determined at a separate trial.
The applicant’s case on liability as against the second respondent and the case as against third and fourth respondents, require different legal considerations.
The second respondent is alleged to have participated in an assault upon the applicant. Both the first and second respondent were charged by police following the incident, the incident was investigated by police and witness statements in the nature of declarations obtained. I am not privy to that material, nor am I aware of the precise charges laid. Notwithstanding the history provided by the applicant to Dr Rowe,[4] there is no dispute that the charges were not ultimately proceeded with, and the matter did not proceed to trial.
[4] Namely that the case against the first and second respondents ‘collapsed’ when ‘Dr David David suddenly changed his evidence’; report of Dr Barry Rowe dated 25 October 2012 at p 2.
In his defence, the second respondent pleads that he struck the applicant with his hand in self-defence, and that he observed the first respondent swing his arm at the applicant, after the first respondent had been struck by the applicant.[5] The second respondent pleads that the applicant was the aggressor in the incident and that his actions were reasonable and in proportion with the threat posed to his safety by the applicant. The second respondent therefore denies he participated in an assault and/or battery of the applicant, or that he was negligent.
[5] Revision 1 – Defence of the Second Respondent filed on 25 June 2021.
The circumstances of incident, namely who was the aggressor and precisely if, when, how and why the second respondent struck the applicant are factual issues to be determined at trial. The action against the first respondent is currently in abeyance pending the applicant seeking, and obtaining, an order for substituted service of the action on the first respondent. However, at any trial on liability, the Court will also need to determine if, and precisely when, how and why the first respondent struck the applicant, as these are facts which are also relevant to the claim against the third and fourth respondents.
The applicant’s claim against the third and fourth respondents as occupiers of the premises is a case in negligence. It is alleged that the third and fourth respondents were negligent in that they:[6]
(a)Failed to keep any or adequate lookout;
(b)Permitted the first and second respondents to remain on the premises when there was a foreseeable risk that they may behave in a disorderly and offensive manner;
(c)Failed to ensure that the premises were secure and the birthday party was conducted in a safe and non-dangerous environment and failed to ensure any or any adequate security for the purposes of the birthday party particularly when the party involved the provision and consumption of alcohol; and
(d)Failed by not having the first and second respondents removed from the premises.
[6] Statement of Claim Revision 1 at [9].
In their defence, the third and fourth respondents deny that they were negligent and plead:[7]
[7] Defence – Revision 1 of the Third and Fourth Respondents filed on 7 June 2021 at [3(a)-(j)].
(a)throughout the course of the birthday party they prepared food for the guests including food cooked on a barbecue;
(b)throughout the course of the birthday party they supplied soft drinks and water to the guests;
(c)they did not supply any alcohol to any of the guests;
(d)they and two other adult couples were present at the premises to supply food and non-alcoholic beverages and provide supervision as required;
(e)entry to the premises was only through the household of the Third and Fourth Respondents;
(f)during the course of the evening they regularly went into the backyard area where the birthday party was being held to remove rubbish and replenish snack food;
(g)they maintained a view of the backyard of the premises where the birthday party was held;
(h)at no time prior to the Applicant suffering a physical injury on 5 December 2010 was there any aggressive or violent behaviour by any of the guests including either one or both of the First and Second Respondents;
(i)at no time prior to the Applicant suffering a physical injury on 5 December 2010 did any of the guests including the First and Second Respondents behave in a disorderly or offensive manner;
(j)at no time prior to the Applicant suffering a physical injury on 5 December 2010 was there any reason for the First and/or Second Respondents to be removed from the premises.
The allegations against the third and fourth respondents do not relate to the state or condition of the premises. Rather, it is alleged that in the circumstances, the third and fourth respondents owed the applicant, as an invitee on the premises, a duty of care, the scope of which extended to protect him from harm sustained as a result of an assault (being a criminal act) occasioned upon him by one or more persons on the premises, and if so, whether they breached that duty of care.
In answering those questions, the Court will adopt the approach laid down by the High Court in Wyong Shire Council v Shirt,[8] and determine first, whether a reasonable person in the position of the third and/or fourth respondent would have foreseen that his or her conduct (whatever that conduct is determined to be) involved risk of injury to the applicant or to a class of persons including the applicant. If the answer to that question is yes, the Court must then determine what a reasonable person would do by way of response to that risk. This involves a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any conflicting responsibilities the respondents had.
[8] (1980) 146 CLR 40.

The NSW Court of Appeal was required to consider these questions in Parissis and Ors v Bourke,[9] a case involving an action against the occupiers of premises who allowed their 18 year old son to hold a barbecue party for guests aged between 17 and 25. At around 2 am, guests attempted to relight a smouldering barbecue by throwing methylated spirits onto it, as a result of which the barbecue exploded and injured a person sitting nearby.
[9] [2004] NSWCA 373.
Although the facts of that case are somewhat different and arguably give rise to different considerations in terms of foreseeability and remoteness than the present matter, in determining that case, the Court observed that the law of negligence recognised the need for a duty of care to reflect current community values and standards.
As such, the Court will be required to make findings which include those as to the scope of any duty of care owed by persons in the position of the third and fourth respondents (parents in occupation of premises used to host a party) to partygoers in 2010.
The Court will need to make factual findings as to the circumstances surrounding the incident. Those findings will include, but may not be limited to; how did the third and fourth respondents supervise, manage and control the party, what security arrangements were in place during the party, whether and if so, how, alcohol was provided at the party, and what, if anything, was observed by the third and fourth respondents, or any other attendees at the party, in terms of any aggressive, violent, disorderly or offensive behaviour on the part of either the first and/or second respondents, prior to the incident.
The third and fourth respondents have identified potential witnesses (in addition to themselves) to be called by them at any trial on liability, namely Owen Stankiewicz and Kelly Pigot, who were jointly celebrating their birthdays at the party, other parents who were assisting them to supervise the party and other attendees at the party who did not witness the incident, but who can give evidence of the circumstances leading up to the incident.
The third and fourth respondents estimate that any trial on liability may take approximately five to six days.
Counsel for the second respondent submitted that in addition to the applicant and the first and second respondents, she was aware of three or four other potential eyewitnesses to the incident, and other witnesses, thus potentially adding to the estimated length of any liability trial.
There are no expert witnesses to be called by any party on the issue of liability.
The applicant instructs he will give evidence at trial. The Court’s assessment of that evidence, namely both the credibility and reliability of such evidence, would be critical in terms of the Court’s findings.
Notwithstanding the applicant’s present instructions, there must remain some doubt as to whether the applicant will, in fact, give evidence at any trial.
The nature and extent of the applicant’s medical condition is detailed in the numerous medical reports attached to the sixth Kerin affidavit.
Professor McFarlane last examined the applicant on 21 January 2021. Thereafter, Professor McFarlane diagnosed the applicant as having a history of chronic schizophrenia, in partial remission, and a chronic post-traumatic stress disorder, and stated that both conditions would remain chronic and unremitting. He observed that the applicant continued to suffer from delusions of a paranoid and grandiose nature and opined that his delusional behaviour and thinking made it difficult for him to function in a variety of environments.[10]
[10] Report of Professor A C McFarlane dated 3 February 2021, in general, and in particular at pp 6, 18 and 20.
Dr Kutlaca, who assessed the applicant on 2 March 2021, expressed the opinion that while the applicant did not then present as obviously psychotic, he continued to suffer from schizophrenia and remained on psychotropic medication. He considered it unlikely the schizophrenia would recover.[11]
[11] Report of Dr D Kutlaca dated 2 March 2021 at pp 6-7.
During the argument, counsel for the applicant submitted that there was ‘firm likelihood’ that the applicant would give evidence at any trial but acknowledged that the applicant’s solicitors were actively preparing the matter on the assumption the applicant would not ultimately be called to give evidence. He said that the applicant had ‘good periods’ and ‘bad periods’. As such, whether the applicant’s mental health is such that he is, in fact, medically capable of giving evidence at trial, may not be known, with any degree of certainty, until shortly prior to the trial commencing.
The applicant remains in detention and unless the terms of the order are varied, he will remain in detention until his limiting term ends on 15 December 2026. It is uncertain whether, and if so when, he may be deported to the United Kingdom. The current uncertainties arising from Covid-19 are also relevant, in terms of answering the practical question of whether, in fact, notwithstanding his current instruction, the applicant will give evidence at trial.
Counsel for the applicant conceded that a trial on all issues (liability, causation and quantum) would take ‘very much longer’ than a trial only on the issue of liability, involving ‘multiples of time and multiples of effort’ (adopting the language used by counsel for the third and fourth respondents). He suggested that a trial on liability may take in the vicinity of eight to ten days and accepted that any trial addressing causation would involve ‘multiples of that’.[12]
[12] Transcript dated 30 June 2021 at T 50.29-35.
No other potential witnesses were identified by the applicant as being required on issues pertaining to the circumstances of the incident. However, it was submitted that if the applicant did give evidence, the Court would need to determine whether at the time of giving such evidence he was delusional, being critical to any findings as to his reliability, raising the possibility of medical evidence being required at any trial on liability.
Causation
Section 34 of the Civil Liability Act 1936 (the Act) states:
34—General principles
(1)A determination that negligence caused particular harm comprises the following elements:
(a)     that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)     that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2)Where, however, a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different persons (the defendants) and it is not possible to assign responsibility for causing the harm to any one or more of them—
(a)     the court may continue to apply the principle under which responsibility may be assigned to the defendants for causing the harm1; but
(b)     the court should consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Note—
1See Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89.
As outlined by the Full Court in Clare & Gilbert Valleys Council v Kruse,[13] the statutory test under s 34 of the Act has two limbs, ‘factual causation’ and ‘scope of liability’. The first limb involves a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the respondent’s negligence. Once ‘factual causation’ is determined, it is then necessary to determine whether it is appropriate for the negligent person’s liability to extend to the harm so caused. This second process incorporates ‘normative’ considerations, applying precedent.
[13] [2019] SASCFC 106 at [79]-[83].
Although not expressly pleaded in his defence, counsel for the second respondent conceded that her client did not dispute that the applicant suffered some ‘harm’ as a result of the incident. While s 34 has as its focus harm caused by ‘negligence’, the nature of the allegations made against the second respondent in this case are such that if there is a finding that the second respondent was negligent (and/or deliberately inflicted an assault and battery on the applicant), then any ‘harm’ caused by that negligence (and/or assault and battery), will be equivalent to that caused in ‘the incident’.
The third and fourth respondents admit that the applicant suffered physical harm in the incident. The allegations of negligence made against the third and fourth respondents are to the effect that by their acts and omissions, as particularised in paragraph 9 of the Statement of Claim Revision 1, they enabled the incident to occur. Again, insofar as there is a finding of negligence against the third and fourth respondents, it is difficult to envisage how there could then be any dispute that any ‘harm’ caused by the incident was not therefore harm caused by such negligence.
As to causation, the issue in dispute is the nature and extent of the ‘harm’ caused to the applicant as a result of any negligence (or liability as that may be found) as against the respondents, and specifically whether, on the balance of probabilities, the applicant’s subsequent development of schizophrenia would not have occurred absent the respondents’ negligence.
In answering this question, the Court will have regard to evidence which establishes the nature of the applicant’s mental health before the incident, any change or progression in the applicant’s mental health thereafter and expert medical opinion.
That evidence will likely include:
·The evidence of psychologists and medical practitioners who examined the applicant prior to the incident, and an analysis of the records of those practitioners and school records.
·Hospital records relating to the applicant’s presentation immediately after the incident.
·Evidence from medical practitioners such as Dr Rowe, Dr Tomasic and Dr Hill who saw the applicant during 2012 and prior to him experiencing a psychotic episode in October 2012.
·Evidence from other medical practitioners who have examined the applicant since 2012, including Dr Lynette Rose, who assessed the applicant to determine if he was fit to stand trial with respect to the criminal charges referred to earlier.
·Evidence of Dr Kutlaca and Professor McFarlane who have subsequently examined the applicant and provided opinions as to the likelihood of there being a causal link between the incident and the development of the applicant’s schizophrenia.
Professor McFarlane first examined the applicant in June 2018. He expressed the opinion that that it was probable that the applicant ‘had, at a minimum, the subsyndromal symptoms of post-traumatic stress disorder when he consulted Dr Rowe.’[14] He went on to express the opinion that it was in the setting of these symptoms that he progressively developed a prodrome of schizophrenia. He stated:[15]
In essence, once these neurological pathways have been dysregulated, if the individual has any shared vulnerability for schizophrenia, the activation of the dysregulation of posttraumatic stress disorder increases the risk of schizophrenia…In essence, in the absence of the assault that occurred on 5^th December 2010, and its subsequent impact on Mr Chattaway’s mental state, the risk of him developing schizophrenia was substantially diminished.
[14] Report dated 28 September 2018 at p 10.
[15] Report dated 28 September 2018 at p 22.
Professor McFarlane referred to a body of evidence suggesting the role genetic factors had in the development of schizophrenia. After referencing various medical studies and literature, he expressed the opinion that environmental factors may contribute to the activation of the genetic risk, such as traumatic stress in the onset of post-traumatic stress disorder, and are likely to play an important role in the manifestation of that risk.[16]
[16] Report dated 28 September 2018 at p 22.
That opinion is challenged by the respondents, relying on the opinions expressed by Dr Olav Nielssen[17] and Dr David Kutlaca.[18] At present, the applicant has not produced any other evidence to support that of Professor McFarlane on the issue of medical causation.
[17] Report of Dr Nielssen dated 15 May 2019.
[18] Reports of Dr David Kutlaca dated 7 March 2017 and 2 March 2021.
Further, the respondents dispute Professor McFarlane’s opinion that when the applicant presented to Dr Rowe in early-mid 2012, he had developed post- traumatic stress disorder prior to the onset of his schizophrenia. The respondents rely on the observations of Dr Rowe, that upon specific questioning of the applicant, at that time, as to whether he had developed symptoms of post-traumatic stress disorder, the applicant apparently described having ‘developed some avoidances and anxiety when in large groups since the assault’, but ‘clearly denied ever having experienced any ‘re-experiencing’ symptoms at any stage’. Dr Rowe therefore expressed the opinion that this history precluded the diagnosis of post- traumatic stress disorder under DSM-IV’.[19]
[19] Report of Dr Barry Rowe dated 25 October 2012 at p 2.
Whether the applicant was in the prodrome of schizophrenia before the incident, the nature and extent of the symptoms suffered by the applicant between the incident and the development of the schizophrenia (in October 2012), and the proper diagnosis attributable to the applicant’s condition during that period, are matters very much in dispute.
If the applicant gives evidence, his evidence as to what symptoms he suffered at various points in time, is important evidence. However, it is possible that the extent to which the applicant is now able to recall, with accuracy, what symptoms he suffered from time to time, may be impacted not only by the passage of time, but the effects of the very serious mental health issues he has suffered since 2012.
It was submitted by counsel for the applicant that having regard to the opinion expressed by Professor McFarlane, there was a significant overlap between the cases to be advanced by the applicant on liability and causation. It was submitted that in assessing Professor McFarlane’s opinion, the Court would be required to make findings as to whether the flashbacks said to be experienced by the applicant from time to time in fact represented accurate memories of the incident, or whether they were delusions.
Conversely, counsel for the third and fourth respondents submitted that there was no overlap in the evidence to be considered by the Court as to liability and causation. It was submitted that as to causation, it was irrelevant whether the applicant’s state of mind from time to time as to the circumstances of the incident accurately reflected what did in fact occur, rather what was important was whether such memories were ‘intrusive’.
Quantum
As in all cases involving personal injury, the assessment of the quantum of the applicant’s claim for damages will involve the assessment of medical evidence and for findings to be made based on that evidence, and any evidence given by the applicant, as to his limitations in terms of his ability to work, and to undertake normal social, domestic and other activities as a result of the harm he sustained arising from the acts/omissions of the respondents. A significant issue for the Court’s determination will be that of any need for, and the likely cost of, the applicant’s future care.
The applicant remains in institutionalised care. Unless the supervision order is varied, or he is deported, he will remain in detention until December 2026. What will happen thereafter is uncertain.
If the applicant is deported, either before or after the completion of the limiting term, it is uncertain whether (and if so when) he will be discharged to live in the community.
Attached to the second Paleologos affidavit is a report obtained by the applicant’s solicitors from Mr Mark Diamond and Mr Paul Zadow of Diamond Consultants dated 19 August 2020. The authors of that report set forth an opinion of the estimated annual cost of the applicant’s care (assuming a requirement for 24 hour/day care), based on two different scenarios; namely that he remains in ongoing institutional care and, alternatively, if that care is provided in the community. Those estimated costs differ significantly depending on the model of care and the availability of NDIS funding.
The applicant’s counsel conceded that a trial on quantum may not be able to be completed for many years, and may ultimately need to be determined separately from the issue of causation, while these uncertainties remain and the underlying assumptions to be relied upon by various experts which will inform their opinions as to potential model(s) of care and the cost of such care, remain unknown.[20]
[20] Transcript dated 30 June 2021 at T 36.17-37.7.
Legal Principles
The application is made pursuant to UCR 151.1 which states:
(1)Unless the Court otherwise orders, when it is ordered that a matter proceed to trial, there is to be a single trial of all issues (other than costs) in the proceeding.
(2)The court may order that there be separate trials of separate issues in a proceeding and may determine the order in which such trials are to be heard or determined.
Examples:
…
In a proceeding in which the applicant seeks damages for personal injuries, the Court might order that there be a trial on issues of duty of care and negligence, to be followed by a trial on the issues of causation and quantum of loss.
…
All parties adopted the principles as set forth by Judge Burnett in Warren v District Council of the Lower Eyre Peninsula(‘Warren’),[21] as correctly reflecting the principles to be applied by the Court in determining the application. I respectfully adopt those observations.
[21] [2020] SADC 87.
By way of summary, Judge Burnett referred to what was said by White J in Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC, namely:[22]
The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently results in prolongation of the proceedings and the incurring of additional costs.
[22] [2008] SASC 369 at [93].
There are dangers in ordering separate trials, such as the incurring of additional time and expense insofar as it is necessary to call evidence on factual matters which overlap more than one issue, the potential for an unsuccessful litigant to perceive their lack of success on a preliminary but determinative issue as having been made in the Courts’ interests and the potential for delay and further cost created by multiple appeals.[23]
[23] Tepko Pty Ltd v Water Board (2001) 206 CLR 1, per Kirby and Callinan JJ.
It is for the third and fourth respondents to demonstrate why it is appropriate for the Court to depart from the usual course and to order separate trials.
The power to order separate trials is a discretionary power to be exercised judicially. When exercising that discretion, the Court should have regard to the objects of the Rules, namely to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in the proceedings.[24]
[24] UCR 12.2(2).
In the exercise of the discretion, the Court should have regard to the various matters outlined by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd,[25] and in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor (No.2) (‘Alliance’),[26] including:
·What proportion of hearing time will be occupied by the determination of the trial on the separate issue, having regard to the expected length of any trial on all issues.
·The extent to which the parties are ready to proceed to trial to determine the separate issue, compared to their readiness to proceed to trial on all issues.
·What, if any, effect the determination of the separate issue will have on the prospect of resolution of, or narrowing of, the remaining issues in dispute.
·The avoidance of fragmentation of the trial, including fragmentation created by an appeal or appeals by the unsuccessful party following the first (separated) trial.
·The potential overlapping of witnesses.
·The potential for credibility findings to be made at the first trial, which counters against the ordering of separate trials.
·The extent to which an order for separate trials may result in delay, added expense and inconvenience to the parties.
[25] [2000] NSWSC 1215 at [7].
[26] [2011] SASC 92.

Importantly, the Court should only order a separate trial if in doing so, the ‘utility, economy, and fairness to the parties are beyond question’.[27]
[27] Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [170].
Submissions
Counsel for the third and fourth respondents submitted that in this instance it was appropriate for the Court to exercise its discretion and order separate trials for the following reasons:
·There was a clear demarcation and no overlap in the issues to be determined as to liability, with only the possible evidence of the applicant to be common to the issues of liability, causation and quantum.
·The parties were ready for the action to proceed to trial on liability, which could be listed for hearing within several months, whereas it would be several years, at least, before any trial could proceed on causation and quantum having regard to the uncertainty as to when the applicant will be discharged to live in the community and whether that will be in Australia or the United Kingdom.
·The issue of delay was particularly important in this case having regard to the fact the incident occurred over ten years ago and the impact any further delay may have on the reliability of the witnesses who were present at the party, and the availability of such witnesses to give evidence at trial.
·If a trial on liability was determined in favour of the third and fourth respondents, that would resolve the litigation against them in its entirety, and if not, there remained some (albeit realistically low) prospect of resolution.
·There would likely be significant savings in costs to the parties in determining the issue of liability separately, having regard to the considerable additional costs that will be incurred to prepare for and run a trial addressing the controversial issues of causation and quantum, which trial was estimated likely to take between an additional 20 to 25 hearing days.[28]
·If there was an appeal against the decision on liability, there was a reasonable prospect any such appeal could be heard and determined prior to the action being ready to proceed to trial on causation and quantum in any event. The third and fourth respondents relied on what was said by White J in Alliance as to the concerning prospect of there being multiple appeals, but nonetheless ultimately concluding such prospect was insufficient, in that case, to indicate that separate trials would be inappropriate.[29]
[28] Ninth Johns affidavit at [37] and [61]-[64].
[29] [2011] SASC 92 at [103].
Counsel for the applicant submitted that in making its findings as to both liability and causation, the Court was required to make findings as to the applicant’s credit, or, more particularly, findings as to the reliability of the applicant’s evidence, such that it was simply unfair and inappropriate for the issue of liability to be dealt with separately.[30]
[30] Relying on Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411.
It was submitted that there was considerable overlap in the issues to be determined at any trial on liability and causation such that there was not a demarcation in the evidence to be led at any separate trial. The evidence which overlapped was said to be that of the applicant’s recollection of the circumstances of the incident, and whether what he recalled represented what actually happened, or delusions. This was said to be relevant to Professor McFarlane’s opinion that the applicant was suffering a post-traumatic stress disorder before he developed schizophrenia.
It was submitted that unlike the situation in Warren, or in Alliance, in this instance, a separate trial on liability would not assist in the resolution or final determination of the action, given that the issues relating to causation and quantum remained hotly contested, with the parties’ position on causation (and therefore, by necessity, quantum) being diametrically opposed.
It was submitted that in the event the applicant was unsuccessful as against the third and fourth respondents at any trial on liability, the applicant would appeal, and given the nature of the issue to be determined, any appeal may ultimately fall for determination by the High Court, with resulting considerable delay and fragmentation of the action.
Ultimately it was submitted that there would be clear and substantial prejudice to the applicant if a separate trial was ordered, having regard to the likely ensuing delay created by the appeal process and additional costs incurred in reagitating overlapping issues in a subsequent later trial, particularly having regard to the mental health issues suffered by the applicant.
Consideration
In considering the application, I am mindful of the nature of this action and the history of the proceedings to date, which has been characterised by significant delay.
It is now over eleven years since the incident. That period of time must necessarily impact on the ability of those persons who were present at the party, including the applicant and each of the respondents, to recall, with a degree of accuracy, what in fact happened in the period leading up to the incident and during the incident itself. The longer any trial is delayed, the greater will be the impact on the memories of each witness. Similarly, as each year passes, there remains the possibility that important witnesses may no longer be able to give evidence at any trial due to personal circumstances including ill health and work or other commitments which cause them to be out of the jurisdiction and/or unable to be located for the purposes of giving evidence.
I accept the submission made by the third and fourth respondent that, by and large, the matter is ready to be listed for trial on liability. Having regard to current Court listings, a ten-day trial could be listed for hearing as early as April 2022.
I note the concession made by counsel for the applicant during the argument that in all likelihood, a trial on all relevant quantum issues could not be heard for several years, and in fact may be best separated from a trial on the other issues, having regard to the many variables that are as yet unknown in terms of the applicant’s future living (and therefore care) arrangements.
The respondents did not advance any application for the Court to order a separate trial dealing with both the issues of liability and causation, nor did they make any submissions directed to such a proposed course of action. By way of observation I consider it likely there will be some commonality of witnesses required at trials on causation and quantum, including members of the applicant’s family and medical witnesses. Whether resolution of the issue of causation may assist the parties to resolve the issue of quantum is uncertain.
As to the readiness of the parties to proceed to a trial on causation, in his ninth affidavit Mr Johns has outlined those matters which require further time and expense by way of preparation. These include arranging for Dr Nielssen to review the most recent reports of Professor McFarlane and Dr Kutlaca, the proofing of relevant medical witnesses,[31] detailed consideration of the applicant’s various medical records,[32] further consideration of the applicant’s school and SAPOL records and psychiatric reports, and the necessity to obtain further records from the Department of Correctional Services, Yatala Prison and James Nash House. If that trial was also to include quantum, it would be necessary for the applicant to be examined by Dr Nielssen and other experts to address any claim for future care. Arranging examination of the applicant while he remains in Yatala Prison is problematic.
[31] Said to include Professor McFarlane, Dr Begg, Dr Kutlaca, Dr Nielssen, Dr Nguyen, Dr Lim, Dr Nambiar, David Buob and Dr Rowe and other pre and post incident treating doctors.
[32] Said to include those from the Royal Adelaide Hospital, James Nash House, Arkaba Medical Centre and Egmont Terrace Specialty Rooms.
It was not ultimately disputed that a trial on liability will take considerably less time than a trial on the issues of both liability and causation or a trial on all issues. The estimate of eight to ten days provided by the respondents as to any trial on liability alone did not take into account the potential for medical evidence to be heard. If a trial included the issue of causation, it is reasonable to assume that it may be lengthened by approximately ten days.
Any trial which includes a determination as to quantum is most unlikely to be ready to proceed for several years, and possibly not until the expiry of the limiting term. Determining the issue of quantum, at the same time as both liability and causation, will add at least a further five days, possibly more, to the length of any trial.
These factors point towards the application being granted.
However, there are other important factors which point in the opposite direction.
The respondents concede that determination of the issue of liability, unless it is in their favour, will not carry with it other than a modest prospect of assisting in the resolution or determination of the other issues in dispute, having regard to the complex nature of those issues. Further, if the respondents do succeed on liability, I do not doubt there will be an appeal and that such appeal may ultimately reach the High Court. However, unless it was determined appropriate to separate the trials on causation and quantum, any such delay may not otherwise impact on the readiness of the matter to proceed to trial in any event.
Importantly, there is, potentially, evidence which will overlap any trial on the issue of liability and causation, being that of the applicant.
If the applicant gives evidence, the Court will be required to make findings as to the reliability and credibility of that evidence, being relevant to the determination of issues pertaining to both liability and causation. The authorities make it clear that this is a significant factor which tells against the ordering of a separate trial.
As presently instructed, the applicant will give evidence. Whether he is, in fact, called to give evidence at any trial may be dependent on the then state of his mental health which will not be known until shortly prior to the relevant trial date. There was no submission made to the effect that this situation may change in the future, rather the medical evidence presented to the court refers to the chronicity of the applicant’s condition and its likely continuance.
An issue which will need to be determined at trial, is whether, given the impact of the applicant’s chronic schizophrenia, he is now able to give accurate and reliable evidence as to the circumstances of the incident, or whether his ability to do so is impaired, and if so to what extent, as a result of his psychiatric condition and the treatment arising therefrom. In other words, can the applicant separate fact from fiction in terms of his ability to recall the incident?
In determining this issue, the Court will need to hear medical evidence, addressing the nature and extent of the applicant’s mental illness, the impact of treatment received by him on the accuracy and reliability of his claimed recollections pertaining to the incident, both now, and at various stages since the incident, and the potential for the applicant to have replaced his actual memories of the incident, with memories of nightmares or ‘flashbacks’ of the incident.
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.
As to causation, if the applicant gives evidence, his evidence as to whether he experienced intrusive thoughts in the period between the incident and October 2012, and his evidence generally as to the progression of his symptoms since the incident, is clearly relevant, having regard to Professor McFarlane’s opinion as outlined in paragraph 59 herein.
The medical evidence to be called on the issue of causation goes beyond that required simply to address issues pertaining to the reliability of the applicant’s evidence. Notwithstanding this, and the factors which point in favour of the application being granted as outlined earlier, I am satisfied that there is sufficient overlap in the evidence which the Court will be required to hear on any trial on the issue of liability, with that which will also be required to be heard on any trial as to causation, to tell against the making of the order as sought by the respondents.
Further, the Registry advises that a 20-day trial could commence as early as May 2022. As such, from the Court’s perspective, there is unlikely to be a significant delay in its ability to hear a trial addressing both the issues of liability and causation.
Having regard to the criteria as outlined at paragraph 78 herein, I am not satisfied, in the circumstances, that ‘the utility, economy and fairness to the parties’ would be beyond question, in the event a separate trial on liability is ordered. I am not satisfied that it is, in all the circumstances, appropriate for a separate trial to be heard on the issue of liability.
There is, by necessity, a degree of commonality in the evidence which will be presented at trial on the issues of causation and quantum.
However, it is clear that it will be several years before the issue of quantum will be capable of being determined. There have already been lengthy delays in this matter and there are critical findings of fact which will need to be made by the Court with respect to matters dating back to 2010 to 2012. It is important that any further unnecessary delays in the matter being listed for trial, be avoided.
I am satisfied that the utility, fairness and justice of the case requires the issues of liability and causation to be determined at a separate trial, and before, the issue of quantum.
Orders
1.The application is refused.
2.Pursuant to UCR 151.1, the trial on the issues of liability and causation is to proceed before any trial on the issue of quantum.
3.Costs of and incidental to the application to remain reserved until further order.
4.I will hear the parties as to any further orders sought.