Marriott v Brine (No 2)

Case •

[2014] NSWSC 1715

•

03 December 2014

Supreme Court


New South Wales

Medium Neutral Citation: Marriott v Brine (No 2) [2014] NSWSC 1715
Hearing dates:13 November 2014
Decision date: 03 December 2014
Jurisdiction:Common Law
Before: Schmidt J
Decision:

1. Leave to amend the amended statement of claim in the terms agreed is granted, but leave to withdraw the admission of recklessness is refused.

2. Mr Marriott is to bear the costs thrown away as the result of the amendment of that pleading and the costs of his motion, as agreed or assessed.

3. The second, fourth and fifth defendants' motion is dismissed.

4. The second, fourth and fifth defendants are to bear the costs of that motion, as agreed or assessed.

Catchwords:

PROCEDURE - pleadings - notice of motion - leave sought to amend statement of claim - granted - costs

PROCEDURE - admissions - application for leave to withdraw admisssion - refused

PROCEDURE - separate trial - notice of motion - severing quantum and liability - application for separate trial refused - costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Coopers Brewery Ltd v Panfida Foods Pty Ltd (1992) 26 NSWLR 738
Drabsch v Switzerland General Insurance Company Limited (1996) 130 FLR 127
Marriott v Brine [2013] NSWSC 1589
Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1
Category:Procedural and other rulings
Parties: Jay Bernard Marriott (Plaintiff)
Mark Brine (First Defendant)
Bankstown Helicopters Pty Limited (Second Defendant)
Kareela Aviation Pty Limited (Third Defendant)
Eromssor Pty Limited (Fourth Defendant)
QBE (Australia) Limited (Fifth Defendant)
Representation: Counsel:
Mr J Heazlewood (Plaintiff)
Mr JS Emmett (Second, Fourth and Fifth Defendants)
Solicitors:
Robert Alexander Hannam (Plaintiff)
Norton White (Second, Fourth and Fifth Defendants)
File Number(s):2010/50083
Publication restriction:None

Judgment

  1. Mr Marriott brought these proceedings in 2010, seeking damages for injuries which he suffered in March 2008 in a helicopter accident. The fourth defendant owned the helicopter. The second defendant hired the helicopter to the pilot, Mr Brine, the first defendant. The fifth defendant is an insurer. Both liability and damages are in issue.

  1. This judgment deals with two motions. The first was brought by Mr Marriott, who seeks leave to file a third further amended statement of claim. The changes sought to be made include withdrawal of a pleading that Mr Brine was reckless. That leave is opposed by the second, fourth and fifth defendants.

  1. By their motion those defendants seek an order that liability be heard separately from quantum. That is opposed by Mr Marriott.

Leave to amend the statement of claim

  1. There was no objection to some of the proposed amendments, it being accepted by Mr Marriott that he must bear the costs thrown away as the result of the amendments. Leave in respect of those matters is accordingly granted.

  1. What was in issue was whether leave to withdraw what the defendants contended is an admission that the helicopter pilot was reckless should be granted.

  1. There is no question that the Court has power to grant such leave under s 64 of the Civil Procedure Act 2005 (NSW), which provides in s 64(2) that "all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings".

  1. Section 58(2) requires the Court to act in accordance with the dictates of justice and for that purpose:

"(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."

  1. The plaintiff submitted that the principle applicable to admissions in pleadings is as stated in Drabsch v Switzerland General Insurance Company Limited (1996) 130 FLR 127 and Coopers Brewery Ltd v Panfida Foods Pty Ltd (1992) 26 NSWLR 738, namely that a party under no apparent disability, who makes a clear and distinct admission accepted by opponents, should not freely be granted leave to withdraw the admission, particularly where it is made after consideration and advice and full opportunity to consider the case advanced. Ordinarily it is only when admissions are shown to be contrary to actual facts, or when made inadvertently, without due consideration of material matters, that leave should be granted.

The application for leave to withdraw an admission must be refused

  1. These proceedings have a considerable procedural history. It appears that not all of the amended pleadings served, were actually filed. Mr Marriott currently proceeds on a second further amended statement of claim filed on 7 November 2013.

  1. At paragraph 3D it is there alleged against the pilot, the first defendant, that he flew the helicopter negligently. At paragraph 11, it is alleged that the second and third defendants had a duty of care to ensure that the helicopter was entrusted only to qualified pilots when used to carry passengers. At paragraph 12 it is claimed that in breach of that duty the second and fourth defendants released the helicopter to the pilot, who, amongst other things, operated the helicopter negligently (at 12.10) and who was reckless as to whether the manner of operation of the helicopter could endanger the life of another person (at 12.11).

  1. The second defendant has admitted those allegations, as has the fifth defendant.

  1. In paragraph 27 of the second further amended statement of claim it is pleaded:

"27. Further or in the alternative, the Second Defendant owed a duty to the Plaintiff as a passenger travelling on aircraft VH-NBP to ensure that:-
27.1. Every activity covered by the AOC issued by the Department of Civil Aviation was required to be done with a reasonable degree of care and diligence;
27.2. No action would lay for damages or compensation in respect of a contravention of such obligation;
27.3. That it had not given any consideration to whether or not:-
27.3.1. the aircraft would be overloaded on departure from Bankstown;
27.3.2. it was possible that the pilot would undertake low flying operations;
27.3.3. that it was possible that the pilot would operate the aircraft recklessly;
27.3.4. that it was possible that the pilot would operate the aircraft in low flying activities and contrary to regulations;
27.3.5. that it was possible that the pilot would be conducting charter operations for which he was unlicenced;
27.3.6. that it had no control over whether or not the pilot consumed alcohol after departure from Bankstown and such consumption would be a breach of the Civil Aviation Act and/or regulations;
27.3.7. that prudent operations would ensure that the aircraft would not depart Bankstown if it was overloaded;
27.3.8. that an overloaded aircraft would have difficulty recovering if the aircraft was flown and/or operated outside the safety envelope in respect of either the centre of gravity and/or moments of balance.
27.3.9. that the First Defendant did not hold a commercial licence."

  1. Understandably the defendants have said that this is not a proper pleading. To the extent that material facts are pleaded, they are denied.

  1. The reasons for this application for leave to withdraw the pleading of recklessness were explained to be that Mr Marriott had obtained an assignment of the indemnity which the fifth defendant had granted to the first defendant by way of an insurance policy. If he succeeds against the pilot, Mr Marriott will be seeking to recover from the fifth defendant under that indemnity. He is concerned that the fifth defendant's case will be that the insurance policy does not extend to cover recklessness.

  1. The case advanced for Mr Marriott that what was pleaded in relation to reckless operation of the helicopter does not amount to an admission cannot, in the circumstances, be accepted. What is pleaded is potentially adverse to Mr Marriott's case against, at least, the fifth defendant, if not the second. Also to be considered is that the admission is supported by opinions expressed in three experts reports which have been served by the defendants, albeit they are expressed in different ways.

  1. That the admission was made inadvertently was not established. There was no evidence led from those who drafted the pleading, which would support such a conclusion. It is contrary to the procedural history of the matter. Recklessness was not originally pleaded, but was later advanced in an amended statement of claim filed in August 2012, at a time when it was obviously considered to suit the case sought to be advanced against the second defendant. That pleading is sought to be withdrawn, long after the plaintiff obtained leave to join the fifth defendant (see Marriott v Brine [2013] NSWSC 1589), and long after the filing of the current pleading in November 2013. The only explanation advanced for the withdrawal of the pleading is, in reality, that it is no longer considered to suit Mr Marriott's case.

  1. That is, of course, an important consideration. What must also be considered, however, is the obvious prejudice which will flow from Mr Marriott now putting in issue the question of recklessness. The matter is listed for hearing in May 2015. Mr Marriott has not obtained any expert opinion on the question of recklessness and does not even know what opinion an expert already engaged, would have. Thus a further report would have to be obtained on that issue. If there is then any disagreement between the experts, that will have to be identified in a joint report and resolved by concurrent evidence called at the trial. That will potentially involve significant additional cost.

  1. Both the pleading of recklessness and the application for its withdrawal are the result of forensic decisions which have been made, not as the result of any expert advice. It cannot be concluded that the admission has been made inadvertently, or without consideration of material matters. Nor has it been shown to be contrary to material facts.

  1. In the result, I am not satisfied that Mr Marriott has established a proper basis for the exercise of the Court's discretion in his favour and accordingly, leave to withdraw the admission must be refused.

Severing quantum and liability

The test

  1. There is no question as to the Court's power to order separate determination of quantum and liability under s 62 of the Civil Procedure Act and Rule 29.4 of the Uniform Civil Procedure Rules2005 (NSW). The Court's power must be exercised in accordance with the objects provided in s 56 of the Act, the just, quick and cheap resolution of the real issues in the proceedings. Consideration of matters such as the timely disposal of proceedings at an affordable cost (s 57); the degree of difficulty or complexity to which the issues in the proceedings give rise and what the dictates of justice require (s 58); elimination of delay (s 59); and proportionality of costs (s 60) must also all be borne in mind.

  1. Determination of a discrete question involves an exceptional order. The usual position is that all issues are to be tried together. It may not be overlooked that separate trials may give rise to further appeals (see Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170]).

  1. Whether such an order should be made requires practical questions to be considered, including whether credit issues are likely to arise in relation to witnesses who will be called to give evidence in relation to both the separate question and the balance of the case.

The application for separate trial must be refused

  1. The defendants estimated that a hearing on liability would take ten days and a hearing on quantum would take seven days. They contended that a two week hearing would be reached sooner than a three week hearing and that resolution of the liability issue was likely to assist in the resolution of the question of damages.

  1. Mr Marriott will have to give evidence on both matters and will call evidence from three experts on liability. The defendants will call five witnesses to the accident, an officer of the Civil Aviation Authority, as well as expert evidence from a helicopter pilot and aeronautical engineer and in respect of insurance issues. Notices to admit facts and notices disputing facts have been served, with the result that the defendants expect to call up to sixteen additional witnesses. On quantum Mr Marriott will call evidence from his wife. Sixty-two medical reports have been served, as well as an expert building report. The defendants will call three medical experts.

  1. There are some potential advantages, accordingly, from the separation proposed. However, in this case what tells, strongly, against the separation proposed is Mr Marriott's circumstances, about which there was no real dispute.

  1. Mr Marriott was not only concerned about potential delay, including as the result of a potential appeal on liability, but also as to the impact of severance on him, given his medical condition.

  1. Mr Marriott was severely injured in the accident. He is medicated with a range of drugs, including pain killers, anti-epilepsy drugs and an anticholinergic drug for bladder dysfunction. His case is that these drugs have an impact on his cognitive functioning, alertness, concentration, memory and consequent capacity to give evidence and respond to questions.

  1. In the result he is concerned that he will be unfairly disadvantaged by having to give evidence twice, potentially at times far distant from each other, which could have an adverse impact on his credibility in a case where there was likely to be a significant credit issue, given his claimed contributory negligence. Further, on his case, in assessing all of his evidence, expert evidence as to the impact of his medication on his cognitive functioning, will be highly relevant.

  1. The defendants contended that it was relevant to consider that Mr Marriott has little memory of the accident, which supported the application for severance. Further, it was submitted that an alternative course might be to order that Mr Marriott give evidence on all matters and that severance be ordered as to all other evidence. As to a concern about a multiplicity of appeals, the defendants undertook not to pursue any appeal, if they failed on liability, until after quantum had been determined.

  1. In all of the circumstances, I have not been convinced that justice permits the separation for which the defendants here contended, even on the alternative basis. Given the issues lying between the parties, Mr Marriott's unfortunate physical circumstances, and the relevance of the medical evidence which would be led on damages, to an assessment of his evidence and credibility, the balance must tip in favour of refusal of the application.

  1. I am not satisfied that justice demands that the evidence on liability be heard separately from the evidence on damages. In the result the separate question application must be refused.

Costs

  1. The usual order as to costs is that they follow the event. The costs of the motions should be borne accordingly.

Orders

  1. In the result I make the following orders:

1. Leave to amend the amended statement of claim in the terms agreed is granted, but leave to withdraw the admission of recklessness is refused.
2. Mr Marriott is to bear the costs thrown away as the result of the amendment of that pleading and the costs of his motion, as agreed or assessed.
3. The second, fourth and fifth defendants' motion is dismissed.
4. The second, fourth and fifth defendants are to bear the costs of that motion, as agreed or assessed.

**********

Decision last updated: 03 December 2014

Cases Citing This Decision

0