Mohammed v Zorich

[2020] NSWDC 826

District Court

New South Wales

Medium Neutral Citation:

Mohammed v Zorich [2020] NSWDC 826

Hearing dates:

15 September 2020

Date of orders:

15 September 2020

Decision date:

15 September 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

Refuse the joint application by the parties for a separate trial on liability under r 28.2 of the Uniform Civil Procedure Rules 2005.

Catchwords:

CIVIL PROCEDURE — separate determination of questions — where appropriate – proposed separate trial on liability – evidence relevant to damages and quantum

Legislation Cited:

Uniform Civil Procedure Rules 2005, Pt 28, r 28.2

Cases Cited:

Commonwealth Bank of Australia v Clune and Anor [2008] NSWSC 1125

Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697

Category:

Procedural rulings

Parties:

Farisha Mohammed (plaintiff)
Marcus Zorich (defendant)

Representation:

Counsel:
Mr P Mooney SC (plaintiff)
Mr J Guihot (defendant)

Solicitors:
Masselos & Co Lawyers (plaintiff)
Moray & Agnew (defendant)

File Number(s):

2019/223461

Publication restriction:

None

Judgment

1. Ms Farisha Mohammed and Mr Marcus Zorich are respectively plaintiff and defendant in proceedings arising out of a collision involving several motor vehicles. They jointly seek a separate trial on the question of liability under Pt 28 of the Uniform Civil Procedure Rules 2005, prior to a trial, if necessary, on quantum. This application is made on the second day of the trial of the proceedings near the conclusion of the plaintiff’s evidence-in-chief. It arises from the following circumstances.

2. I am informed that Dr Vickery, the defendant’s expert psychiatrist, prepared a report denying that the plaintiff suffered a post‑traumatic stress disorder. That report is not yet in evidence and has not been provided to the Court. The plaintiff’s expert, Dr Rastogi, has reported a finding of post‑traumatic stress disorder. The two doctors met in conclave and a report agreeing on the existence of post‑traumatic stress disorder was prepared and was signed by Dr Rastogi. Dr Vickery refused to sign the report. I am informed he overlooked his earlier report and does not adhere to the conclusion in the joint report. He apparently attributed this to his own medical problems which prevent him from attending court in answer to a subpoena. Although Dr Vickery’s medical condition and opinion are not altogether clear and will remain so until explained, it appears that no criticism is directed at Dr Rastogi about the contents of the joint report.

3. This uncertainty about Dr Vickery’s opinion and his apparent inability to attend court to give evidence clouds the question of quantum which underlies the parties’ joint application for a separate trial.

4. The parties assert that once the liability issues are determined, the prospect of resolution of the proceedings is enhanced, notwithstanding the uncertainty about quantum. Perhaps that is because, at some stage in the future, Dr Vickery’s position will be clarified. Another reason, not expressed with clarity, appears to be a desire to make use of the day and a half remaining in the hearing dates set down for the matter.

5. None of these matters, to my mind, are compelling in favour of a separate trial. There is no assurance that separating quantum and liability will more efficiently dispose of the proceedings. A separate trial enlivens the possibility of separate appeals creating a multiplicity of proceedings, a result which should be avoided. And the proceeding is able to continue, at least to some extent, with other witnesses. So it is not clear that any hearing time will be lost, even if it is now clear that the trial will not conclude tomorrow.

6. There are other even more important matters. The ordinary position is that all issues are to be tried together because often evidence in proceedings is relevant to several issues. This is the case here. The reliability of the plaintiff’s evidence on quantum may impact on the assessment of her evidence about the collision, and the converse is also true, that her liability evidence may inform a judgment about her evidence concerning quantum. It is inappropriate that the Court make credit findings about the plaintiff in the absence of all the evidence that goes to her credit. So where she has given evidence about damages, the Court should hesitate to find her evidence reliable or unreliable without hearing all the evidence on damages that may support or controvert her account. And a finding about the plaintiff’s credit on liability may be problematic for the Court to later impartially assess her evidence on damages.

7. While it might seem challenging for the defendant’s counsel to cross‑examine the plaintiff concerning facts relevant to her alleged post‑traumatic stress disorder without knowing the case he is going to put, that difficulty was eschewed by him.

8. It may also be relevant that the plaintiff’s case does not contain a claim for non‑economic loss on the basis that the threshold level of whole person impairment has not been achieved, even though Dr Rastogi found that the threshold had been passed and it remains at least possible that that may not continue to be an issue disputed by Dr Vickery.

9. Other evidence on liability impacts on quantum evidence. The plaintiff alleges a back injury, the extent of which is disputed. Part of the dispute apparently depends upon evidence of how the accident occurred, whether largely a front‑on collision which is said not to permit the sort of injury alleged, or a side‑on collision which may have different consequences. A finding about the mechanics of the collision is thus relevant to assessing the plaintiff’s complaints. This is significant where there is a real controversy about precisely how the several collisions occurred and the positions of the vehicles in the period immediately before and during the collision. The reliability and the credibility of the plaintiff’s evidence is thus relevant to both liability and quantum, as indicated above.

10. Conversely, other evidence on liability, including the defendant’s report of Mr Griffiths, may impact upon questions of damages because of the disputed mechanics of Ms Mohammed’s injuries. Thus, the evidence of the medical experts could impact on the assessment of Ms Mohammed’s evidence as a whole.

11. I am not persuaded that a separate trial on liability will result in any significant saving of time or cost. But there seems to be a real potential for error by splitting the case. These matters weigh heavily against a separate trial. In my view, this is far from the exceptional case where a separate trial is shown to have a clear advantage in reaching a just, quick and cheap conclusion of the proceedings. [1]

    1. Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697 at [5], Commonwealth Bank of Australia v Clune and Anor [2008] NSWSC 1125 at [6].

12. Accordingly, I refuse the joint application by the parties for a separate trial on liability under r 28.2 of the Uniform Civil Procedure Rules 2005.

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Endnote

Decision last updated: 02 February 2021