Minister for Health v Youens - [2005] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MINISTER FOR HEALTH -v- YOUENS [2005] WADC 31

CORAM: COMMISSIONER POWER

HEARD: 7 FEBRUARY 2005

DELIVERED : 25 FEBRUARY 2005

FILE NO/S: CIV 2885 of 2001

BETWEEN: MINISTER FOR HEALTH
Appellant (Defendant)
AND
CHERYL YOUENS
Respondent (Plaintiff)

ON APPEAL FROM:
For File No              :  CIV 2885 of 2001
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY REGISTRAR HARMAN
File No  :CIV 2885 of 2001
Result  :Appellant's (Defendant's) application dismissed

Catchwords:

Practice and procedure - Trial of liability as a preliminary issue - Medical negligence - Whether failure to exercise reasonable care in performance of a laparoscopic sterilization - Whether utility, economy and fairness of a separate trial is beyond question - Turns on own facts - No separate trial of preliminary issue ordered

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Defendant) : Mrs S Taylor
Respondent (Plaintiff) : Mr T Lampropoulos

Solicitors:

Appellant (Defendant) : Dibbs Barker Gosling
Respondent (Plaintiff) : Ilberys

Case(s) referred to in judgment(s):

Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Stirling Marine Services Pty Ltd v Austral Piling & Constructions Pty Ltd & Sedgwick Ltd, unreported; SCt of WA ; Library No 970620; 21 November 1997
Tepko Pty Ltd & Ors v Water Board (2001) 206 CLR 1
Thomas v Oakley [2003] NSWSC 1033
Tilling v Whiteman [1980] AC 1

Case(s) also cited:

Chenery & Anor v Conti [1999] WASCA 258
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Gentile & Anor v Ferri [2004] WADC 144

COMMISSIONER POWER: This is an appeal by the appellant (defendant) against the decision of Deputy Registrar Harman made on 10 November 2004 dismissing the appellant's (defendant's) application under O 32, r 4 of the Rules of the Supreme Court 1971 for a separate trial of liability as a preliminary issue.
The appeal is brought under O 6, r 11 of the District Court Rules 1996 and is a complete review do novo dealt with by way of an actual re‑hearing (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).
The respondent's (plaintiff's) claim against the appellant (defendant) is pleaded in negligence. The particulars of the alleged breach of the appellant's (defendant's) duty of care appear in par 17 of the statement of claim. The allegations of loss and damage follow in pars 18‑27 of the same.
The appellant (defendant) contends that liability should be tried separately to quantum for reasons of utility, expedition and finality (see pars 13‑21 of the appellant's (defendant's) outline of submissions dated 1 February 2005)
On the subject of utility, the appellant (defendant) argues that there is a clear line of demarcation between the issues of liability and damages and that the prior determination of the former will likely save inconvenience and expense. Specifically, he argues that the length of the trial will be shortened, the issues for which the parties will need to prepare will be fewer in number and less evidence will be required at trial. He contends these savings will reduce the expense of preparing for and conducting the trial and the demand on the Court's resources. He further contends that there is no overlap in the factual matters relevant to liability and damages, because they relate either to the circumstances of the respondent's (plaintiff's) failed sterilisation or to the proper quantum of damages attendant upon that failure.
On the subject of expedition, the appellant (defendant) argues that a determination of liability in his favour will finally determine the action. Alternatively, a finding favourable to the respondent (plaintiff) will enhance the prospects of settlement. Additionally, he argues that a successful outcome for the appellant (defendant) on a preliminary trial of liability is likely to result in an earlier delivery of judgment, because there will be fewer issues to address in that judgment.
On the subject of finality, the appellant (defendant) supplements its argument that a finding favourable to the appellant (defendant) will finally dispose of the action with the argument that the distinction between the issues of liability and quantum is readily appreciable and, therefore, unlikely to give rise to the perception that the course of trying liability as a separate and preliminary issue was reached in the Court's interests rather than those of the parties.
Each of the appellant's (defendant's) arguments were clearly stated in his written outline of submissions and expanded upon in the able submissions of his counsel at the hearing of this appeal.
In considering each of the appellant's (defendant's) arguments and arriving at a decision, I have paid close attention to all of the appellant's (defendant's) written and oral submissions and the authorities on which he has relied.
In response to direct questioning, the appellant's (defendant's) counsel advised that a separate trial on liability would result in a saving of three witnesses. She estimated the evidence of these witnesses would take between a day and a day and a half.
At the commencement of his submissions, counsel for the respondent (plaintiff) informed me that this action had already been listed for a six day trial of all issues, which is to commence on 13 June 2005.
Counsel for the respondent (plaintiff) urged me to conclude that there was nothing exceptional about this action, which would justify a separate and preliminary trial on liability only. He developed that argument by referring to some of the well understood principles governing the exercise of the Court's discretion and the authorities in which they are to be found.
Counsel for the respondent (plaintiff) made it plain, in the course of his oral submissions, that, although there might be some agreement between the parties on some aspects of the damages claimed, damages as a whole were unlikely to be agreed between the parties. Indeed, he added that some of the heads of damage claimed were likely to be much more controversial than others.
The respondent (plaintiff) characterised the action as one with great potential for a multiplicity of proceedings, including appeals, in the event of a separate and preliminary trial on liability. Rather than shortening and expediting the action, it was put to me that a separate trial on liability would increase the likelihood of separate appeals on the separated issues of liability and quantum and result in a lengthier, more inconvenient, less timely and more costly set of proceedings.
The respondent (plaintiff) argued that a separate trial on liability alone would only result in a saving in time of a day or so.
The principles on which applications for a separate trial of issues are to be determined are well known and understood (Stirling Marine Services Pty Ltd v Austral Piling & Constructions Pty Ltd & Sedgwick Ltd, unreported; SCt of WA; Sanderson M; Library No 970620; 21 November 1997; Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 at [4]; Tepko Pty Ltd & Ors v Water Board (2001) 206 CLR 1 at 18 and 55 ; Tilling v Whiteman [1980] AC 1 at 17, 19 and 25; Thomas v Oakley [2003] NSWSC 1033 at [19]–[25]. A separate trial of issues is only appropriate in clear and simple cases and should only be embarked on when the utility, economy and fairness of that course of action is beyond question.
In this case, the prospect of a resolution of the whole action by a separate and preliminary trial on liability is less attractive than might otherwise be the case.
The prospect of a multiplicity of actions, including appeals, which prospect was not effectively refuted by the appellant (defendant), would significantly detract from the force of the appellant's (defendant's) arguments. To allow the appeal would increase the prospects of a multiplicity of proceedings. Separate trials on liability and damages would undoubtedly lead to additional expense and inconvenience if the unsuccessful party were to appeal an unfavourable finding on liability. The prospect of a further appeal on damages by an aggrieved party would only serve to compound the problem.
The potential savings in inconvenience, preparation, the evidence required at trial, the length of trial and the expenses associated with those matters appear, in any event, to be at best relatively modest. Even on the appellant's (defendant's) account, the saving in time at trial would be at most two days. Allowing some further time for submissions on damages, the additional time required for a trial of all of the issues in the action compared to a trial on liability only would not appear to be very significant at all. Any additional expense involved in a trial of all of the issues in the action can be addressed by an appropriate order for costs.
Furthermore, I am not convinced that the prospects of a settlement of the action would be any greater if there were a separate and preliminary trial on liability and a finding in favour of the respondent (plaintiff). An impending trial on all issues could be equally conducive to a settlement of the action, particularly having regard to the likely time, effort and expense which has so far been and which will need to be invested as the action proceeds and the relative uncertainty of the outcome.
As I have already observed, the action has been set down for a trial of all issues in the middle of the year. A separate trial on liability, if it did not ultimately resolve the action, would result in a delayed trial on damages and, consequently, would delay the final outcome in the action. The prospect of such an additional delay does not seem justified when the additional time, already provided for in the listed hearing dates, is likely to be no more than two or so days.
For all of these reasons, I have concluded on the evidence and submissions presented to me, that allowing the appeal would not serve the interests of either party or indeed the Court. The utility, economy and fairness of a separate trial of liability as a preliminary issue is not beyond question.
In the circumstances, I am not satisfied that I should exercise my discretion in favour of the appellant (defendant) and order a separate and preliminary trial on liability.
Accordingly, I would dismiss the appeal.