Miller v Lithgow City Council

[2013] NSWSC 427

Supreme Court

New South Wales

Medium Neutral Citation:

Miller v Lithgow City Council [2013] NSWSC 427

Hearing dates:

22/02/2013

Decision date:

30 April 2013

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Pursuant to Part 28 r 2 of the Uniform Civil Procedure Rule 2005, I order that all issues in the proceedings except for those issues relating to the assessment of the plaintiff's injuries and disabilities and the quantification of her damages, be heard separately from and before the excepted issues.

(2) I order that the proceedings be heard for a period of 10 days commencing on 9 September 2013.

(3) Costs of the motion to be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE - separation of issues for trial - whether separation of issues will facilitate the just, quick and cheap resolution of the real issues in the dispute - no point of principle.

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Commonwealth Bank of Australia v Clune [2008] NSWSC 1125;
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180;
Thiering v Daly [2011] NSWSC 1345

Category:

Procedural and other rulings

Parties:

Emilie Kate Miller by her tutor Donna Maree Miller (P)
Lithgow City Council (D1)
The Uniting Church in Australia Property Trust (NSW) (D2)

Representation:

Counsel:
E G Romanuik (P)
P Knowles (D1)
L Gadner (D2)
Solicitors:
McIntosh McPhillamy & Co (P)
DLA Piper Australia (D1)
Moray & Agnew (D2)

File Number(s):

2010/401465

Judgment

1. On 7 January 2008, during the summer holidays, the plaintiff, who was then a school student, whilst engaged in swimming training, dived into the Lithgow municipal pool and was severely injured - she is now a C7 tetraplegic.

1. On 2 December 2010, the plaintiff commenced proceedings by the filing of a Statement of Claim, claiming damages against the Lithgow City Council, which had the care, control and management of the municipal pool, and also against the Uniting Church in Australia Property Trust (NSW) which conducted the school known as Kinross Wolaroi School at Orange. Ms Miller, a student at Kinross Wolaroi, was undertaking training so that she could compete in swimming competitions as a member of the school swimming team.

1. On 22 February 2013, I informed the parties that I would make orders of the kind set out in this judgment and that I would deliver reasons in due course. This judgment contains my reasons for the making of the orders, which are now precisely formulated.

Plaintiff's Background

1. The plaintiff is now 18 years old, having been born in March 1995. The accident happened when she was 12 years old.

1. Ms Miller was in hospital for almost five months, and after her discharge from the Children's Hospital at Westmead, she was treated at the Orange Base Hospital, where she attended regularly for many weeks. During her rehabilitation at the Orange Base Hospital, a teacher's aide from the school attended and learned how to look after Ms Miller when she returned to school.

1. In the second half of 2008, Ms Miller returned to school and resumed her studies, although she could not do all of the subjects in the curriculum for that year.

1. Although her injuries are catastrophic, Ms Miller has engaged in a broad range of activities with the support and care of her dedicated parents. She has tried to play wheelchair basketball, she has tried to play wheelchair tennis. She has returned to swimming, initially as a form of rehabilitation, but she has represented her school again in swimming. In April 2010 and 2011, she competed at the Australian Swimming Championships in various multi-class disability events.

1. She has managed to continue her school studies, and, at the end of 2012, she completed her Higher School Certificate. Apparently, she is presently undertaking tertiary study at university in the field of Early Childhood Learning. As this is her first year of studies, it is unclear whether she will end up completing the course of study and whether, if she does, she will be able to, and want to, engage in a fulfilling career in that discipline.

Injuries and Disabilities

1. But for this area of career development, her injuries and disabilities have stabilised since the accident. She has had a number of operative procedures, but none are in prospect. She seems to have developed a regular routine of care. It is clear from the material, and from the nature of her injuries, that she is unable to care for herself, and would require the provision of care for 24 hours a day, for each day of the week.

1. Having regard to the nature of her injuries, and her youth, there is very little in dispute between the parties with respect to her claim for damages. The principal area in dispute is the nature of her future career, and her residual capacity for future earnings.

Liability

1. Liability of the two defendants for the accident that led to Ms Miller's injuries is in dispute.

1. The parties have obtained and served a good deal of expert evidence going to various aspects of that issue.

1. I was informed by all counsel that there were ten expert witnesses for all parties relating to the issue of liability. The experts cover the fields of slip resistance, architecture, biomechanical expertise and neurosurgery, swimming coaching and the proper practice of education authorities.

1. On the issue of liability, so far as is apparent from counsels' submissions, there will be a total of six lay witnesses, including such evidence as the plaintiff may herself give.

1. There is no issue between the parties that the plaintiff sustained her injuries having dived into the Lithgow municipal pool. There may be a debate about the precise mechanism of the injury, and therefore whether one or other allegation of negligence is causally related to the plaintiff's injuries. But there is no question that as a consequence of diving into the swimming pool, the plaintiff sustained her tetraplegia.

1. The issues on liability are particularly complex and, as is apparent from the various subject matters covered by the expert reports, multi-factorial. The issues also present important questions about the application of various provisions of the Civil Liability Act 2002.

1. Upon the basis of the parties' present assessment, the issues relating to liability would likely take approximately ten hearing days, and the issues relating to damages, a further five hearing days.

1. The first defendant has, by Notice of Motion, sought an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 for a separate hearing on the question of liability before the hearing of all issues relating to the quantification of and assessment of damages.

Applicable Principles

1. The application is made in reliance upon r 28.2 of the UCPR. In exercising the discretion conferred upon the Court by that rule, it is essential that the Court gives effect to the provisions of s 56 of the Civil Procedure Act 2005.

1. By s 56(2) of that Act, the Court is obliged to give effect to the overriding purpose of the Act and rules which is to "...facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings".

1. The starting point for consideration of a motion such as this is that it is ordinarily appropriate that all issues in the proceedings should be disposed of at the one time: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5] per Johnson J.

1. In claims involving tort, it is necessary to take care in deciding whether to conduct separate trials of different issues, because sometimes separate trials may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome. It is generally undesirable to have separate trials unless all parties accept that compensable damage has been sustained by the plaintiff: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 332 [436] per Callinan J.

1. I have elsewhere described in some detail the principles to be applied by the Court in considering an application for the separate determination of issues. I adhere to those principles: see Thiering v Daly [2011] NSWSC 1345 at [19]-[27].

Discernment

1. As these principles make clear, it is for the applicant, the Lithgow City Council, to persuade the Court that in this case, it is in the interests of justice that, contrary to the usual position, the issues relating to liability ought to be heard and determined in advance of all other issues in the proceedings.

1. The Council submits that the nature of the issues on liability, and their complexity, which in the particular facts and circumstances of this case gives rise to a real question as to whether the plaintiff will or will not succeed in her claim, is a sufficient reason having regard to the nature and extent of the plaintiff's damages, for the order to be made in this case.

1. The Council submits that there is no doubt that, in diving into the swimming pool, the plaintiff sustained her injuries resulting in tetraplegia. The issue which is tendered for determination, is whether one or more of the allegations of breach of duty can be proved, and if so, whether such breach can be found to have caused that injury.

1. Putting it somewhat differently, the Council submits that the question of the existence of a duty and the breach of that duty by either or both of the defendants, is an entirely discrete one which can conveniently be separated from the hearing of the quantification, and the assessment, of the damages resulting from the tetraplegia which the plaintiff has undoubtedly sustained.

1. As well, both defendants accepted in submission that whilst there would be, or else may be, a challenge to the acceptability of the plaintiff's account of what occurred at the time she dived into the pool, there will be no general challenge to her credibility as a witness of a kind which would mean that issues affecting her credit would be carried across from the hearing on liability to the hearing on damages.

1. The Council also submitted, and from the Court's experience of matters of this kind, it is clear that the task of the quantification of, and the assessment of damages, whilst it can be relatively routine, nevertheless involves the incurring of significant legal cost and expense to identify and retain the appropriate experts, to have those experts meet in joint conference and reach, so far as is possible, an agreement on the issues within their expertise.

1. As well, the Council submits that, in light of the plaintiff's injuries and disabilities, and the fact that she is just embarking upon her tertiary education, it is unlikely that there will be sufficient certainty about her future prospects in the workforce to enable a sensible assessment of that head of damage for some time.

1. It is for these reasons, which the Council submits, in combination, and in the particular facts and circumstances of this case, the Court should act to order a separate trial.

1. Ms Miller submits that there is no reason why the ordinary rule should be disrupted in this case.

1. She submits that it would be more convenient, and much quicker, if all issues were to be heard together, and a final outcome of the whole proceedings was reached.

1. As well, Ms Miller points to the fact that, as is convention, a separation of issues on liability and damages makes mediation or settlement more difficult because the parties are not necessarily fully prepared to quantify the plaintiff's claim.

Conclusion

1. I am of the view that the Council has discharged its onus of persuading me that, in the particular facts and circumstances of this case, the overriding purpose of the Civil Procedure Act would be more consonant with the separation of the issues, by which I mean, the hearing first of all issues before any hearing on the quantification of, the assessment of the plaintiff's damages.

1. There are a number of reasons for this. Firstly, there is no doubt that in this case the issue of liability is the single issue which most divides the parties, and stands in the way of a resolution of the proceedings. By having that issue determined quickly, it is more likely that the whole proceedings will be efficiently and cheaply disposed of. It is the option that advances the interest of justice.

1. Secondly, the nature of the Court list at the moment means that a hearing which is to last approximately 10 days on the issue of liability, will be able to be heard far more quickly than a hearing of 15 days or more, which is the estimated length of the case if all issues were to be heard and decided.

1. Thirdly, it would not be in the plaintiff's best interests to have the issue of damages finalised before she has had some time undertaking her tertiary studies, so that a reasonable assessment can be made of her capacity so to do, and her likely career path upon the conclusion of her studies.

1. Fourthly, there would be a considerable saving of cost and expense to all parties in having the question of liability heard and determined first.

1. I am conscious that in making this decision, I have not followed the usual procedure in hearing all issues in a tort claim at the same time. However, I am persuaded that, in the particular circumstances of this case, the interests of justice require that there be a separate hearing on liability and damages.

1. I make the following orders:

(1)   Pursuant to Part 28 r 2 of the Uniform Civil Procedure Rule 2005, I order that all issues in the proceedings except for those issues relating to the assessment of the plaintiff's injuries and disabilities and the quantification of her damages, be heard separately from and before the excepted issues.

(2)   I order that the proceedings be heard for a period of 10 days commencing on 9 September 2013.

(3)   Costs of the motion to be costs in the cause.

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Decision last updated: 30 April 2013