O'Connor v Suman

[2015] NSWSC 1812

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	O’Connor v Suman [2015] NSWSC 1812
Hearing dates:	27 November 2015
Date of orders:	27 November 2015
Decision date:	01 December 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1) Pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the question of the defendants’ liability (including the question of whether any negligence or tortious conduct on the part of any of the defendants caused any damage) be decided first and separately from the question of quantum. (2)   The conduct of the separate trial on the question of liability be subject to ongoing judicial management. (3)   The costs of the motion be costs in the cause.
Catchwords:	PROCEDURE – notice of motion – separate trial severing quantum and liability – application for separate trial granted – costs
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Thomas v Oakley [2003] NSWSC 1033
Category:	Procedural and other rulings
Parties:	Caleb O’Connor (Plaintiff) Nirmal Suman (First Defendant) Zane Reidy (Second Defendant) Jake Hudson (Third Defendant) GEO Group Australia Pty Limited ABN 25051130600 (Fourth Defendant)
Representation:	Counsel: Mr M McAuley (Plaintiff) Mr A Chhabra (Third Defendant) Mr S McCarthy (Fourth Defendant)   Solicitors: Shine Lawyers (Plaintiff) Blair Criminal Lawyers (Third Defendant) HWL Ebsworth Lawyers (Fourth Defendant)
File Number(s):	2015/142422
Publication restriction:	None

Judgment

1. In May 2012, Mr O’Connor was in custody at the Parklea Correctional Centre on remand, awaiting sentence after conviction of various offences at a jury trial. He claims that on 23 May 2012, he was intentionally assaulted and beaten to the head with a sandwich maker, by Mr Suman, Mr Reidy and Mr Hudson, all then also in custody at the Centre, which was being conducted by the GEO Group.

2. Mr O’Connor seeks damages, including aggravated and punitive damages, for the assault and GEO Group’s breach of the duty of care which it owed him, which resulted in him suffering significant injuries, including serious injuries to his brain, skull, face and arm. He also seeks damages for resulting economic loss and various expenses.

3. By its defence, GEO Group’s admissions include that Mr O’Connor was the victim of the assault; that it had become aware of a hearsay rumour that he might be the subject of an assault by other unknown prisoners; and that it owed him a duty of care. The scope and extent of its duty is put in issue, as is the question of causation. It also denies that it breached that duty. GEO also pleads that Mr O’Connor’s claims are governed by Part 2A “Special provisions for offenders in custody” of the Civil Liability Act2002 (NSW). It also claims that all of Mr O’Connor’s injuries, loss and damage were wholly caused by the independent criminal acts of Mr Suman, Mr Reidy and Mr Hudson.

4. There is no issue that Mr O’Connor suffered significant injury when he was assaulted, but the extent of his injuries are not admitted, nor is his entitlement to economic loss or damages for care. GEO Group also claims that there was contributory negligence on Mr O’Connor’s part.

5. By his reply to GEO Group’s defence, Mr O’Connor relies on s 10 and s 11 of the Crimes (Administration of Sentences) Act1999 (NSW), alleging that it ought to have exercised the powers there granted to it, to hold him in segregated or protective custody

6. On 27 November, GEO Group sought an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the question of liability for the alleged negligence and tortious conduct be conducted first and separately from the question of quantum of any damages. The application was supported by an affidavit sworn by its solicitor Mr McGrath. That application was not opposed by the active parties in the proceedings, Mr O’Connor and Mr Hudson.

7. Mr O’Connor is not eligible for parole until July 2022, although he has sought special leave to appeal the decision of the Court of Criminal Appeal which imposed that sentence upon him. If successful, his release would be imminent. It is not appropriate to speculate on the prospects of that application, or the merits of any appeal, if he is granted special leave.

8. Mr O’Connor is now aged 34 years. There is no question that his injuries, particularly the resulting condition of his brain, will require assessment by experts. There are practical difficulties in such assessments being pursued while he remains in custody. There is an obvious prejudice to the parties, in any long delay in the determination of the question of liability, particularly given the need for evidence to be called from operational staff, including as to what was known to GEO Group employees about the threat to Mr O’Connor and how it was dealt with in 2012.

9. In GEO Group’s written submissions, it was conceded that if Mr O’Connor succeeds in establishing liability, he will not be confronted with a major medical causation argument, at any hearing as to damages.

10. Section 62 of the Civil Procedure Act2005 (NSW) gives the Court power to give directions as to the conduct of any hearing. Ordinarily, all questions arising to be determined in the proceedings will be dealt with together. There must be good reason for a departure from the ordinary position, for reasons discussed in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168]-[170]. The Court’s discretion under r 28.2 to order the separate determination of any question must also be exercised in accordance with the overriding purpose specified in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in the proceedings. Consideration must also be given to what the dictates of justice require (see s 58); the elimination of delay (s 59) and having in mind the question of proportionality of costs (s 60). All of these considerations favour the grant of the order sought.

11. This is a case akin to that considered by Woods CJ at CL in Thomas v Oakley [2003] NSWSC 1033, where separate determination of liability was ordered because of the consequences of a significant delay between the events giving rise to the claim and its determination, with resulting risks of records being lost, or of witnesses being unavailable, or of memories having dimmed (see at [24]). As there discussed at [25], consideration must also be given to the extent to which there is any likelihood of intermingling of evidence on liability and quantum, so that a separation of the trial may require a reconsideration of the evidence, with the possibility of a different outcome and of a lack of any real saving in time or costs.

12. That does not appear to be a significant risk in this case, particularly given that Mr O’Connor does not remember the assault and what has now been conceded in relation to causation. A similar conclusion was reached by Hoeben J as his Honour then was, in Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309.

13. In this case, findings of fact on liability are unlikely to be contentious, so far as the remaining issues in the proceedings are concerned. Further, there will inevitably be a delay in the assessment of damages, given the nature of Mr O’Connor’s injuries and the impact of his ongoing incarceration on his assessment by experts.

14. In the result, it must be accepted that in this case too, the just, quick and cheap resolution of this matter will be significantly advanced if liability is heard separately.

Orders

15. It was for these reasons that I made orders in terms agreed by the parties:

1. Pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the question of the defendants’ liability (including the question of whether any negligence or tortious conduct on the part of any of the defendants caused any damage) be decided first and separately from the question of quantum.

2. The conduct of the separate trial on the question of liability be subject to ongoing judicial management.

3. The costs of the motion be costs in the cause.

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Amendments

02 December 2015 - typographical error in paragraph [15] - order (1)

Decision last updated: 02 December 2015