Peterson v The Nominal Defendant
[2010] NSWSC 1085
•21 September 2010
CITATION: Peterson v The Nominal Defendant [2010] NSWSC 1085 HEARING DATE(S): 17 September 2010
JUDGMENT DATE :
21 September 2010JURISDICTION: COMMON LAW JUDGMENT OF: Davies J DECISION: (1) Order pursuant to Part 28 rule 2 that the question of liability be decided separately and in advance of other issues in the proceedings. (2) I vacate the hearing date of 22 November 2010 and in lieu thereof fix the hearing of the trial on liability for 29 November. (3) The Plaintiff is to pay the Defendant’s costs of the Motion to vacate and costs thrown away by reason of the delay of the hearing from 22 to 29 November 2010. CATCHWORDS: PROCEDURE - personal injuries claim - proceedings given an early date on Plaintiff's application - Plaintiff change of solicitors - application to vacate the hearing - delay in obtaining file from previous solicitors - separate hearing ordered on liability. LEGISLATION CITED: Civil Procedure Act 2005 CATEGORY: Procedural and other rulings CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 PARTIES: Qier Peterson (Plaintiff)
The Nominal Defendant (Defendant)FILE NUMBER(S): SC 2010/44657 COUNSEL: K Andrews (Plaintiff)
D Wilson (Defendant)SOLICITORS: Wyatt Attorneys (Plaintiff)
Hunt & Hunt (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
21 SEPTEMBER 2010
JUDGMENT2010/44657 PETERSON V THE NOMINAL DEFENDANT
1 The Plaintiff was injured in a motor vehicle accident on 2 November 2008 on the Stuart Highway between Coober Pedy and Maria in South Australia. She alleges that a large truck or road train, which was overtaking her, cut her off causing her to take evasive action. As a result, her vehicle left the road and rolled over 3 to 4 times before coming to a halt on its driver’s side pinning the Plaintiff underneath the vehicle.
2 She was travelling in the vehicle with her then partner and her sister. The large truck or road train that caused her to take the evasive action is unidentified and, for that reason, she brings the proceedings against the Nominal Defendant.
3 The Plaintiff was severely injured having suffered a dislocation of her cervical spine leaving her with C5 complete tetraplegia.
4 The proceedings were commenced on 19 February 2010. The Plaintiff was then represented by Galluzzo Andriano Solicitors.
5 On 22 April 2010, those solicitors filed a Notice of Motion seeking, principally, that the proceedings be expedited. The 2 bases for that were the Plaintiff’s need for care together with lack of means in that regard, and also that she was suffering from severe depression where it was thought that suicide might be an issue. The Motion came before Registrar Bradford on 21 May 2010 and Consent Orders were made for the preparation of the matter and for the fixing of a hearing date on 22 November 2010 with an estimate of 15 days.
6 One of the affidavits in support of the Motion was filed by Mr John Andriano, the solicitor for the Plaintiff, who deposed that the Plaintiff was ready to take a hearing date in August 2010 and “arrangements were in train for the attendance of overseas witnesses”.
7 On 4 June 2010, the Plaintiff’s present solicitor, Neville Wyatt, of Wyatt Attorneys was retained in the place of Mr Andriano. Mr Wyatt promptly briefed Mr Kelvin Andrews of counsel who provided an advice on 28 June 2010. In that advice, Mr Andrews set out matters which he considered needed to be dealt with as far as evidence was concerned. Most of the advice dealt with matters which concerned the assessment of quantum of damages. The advice briefly referred to liability and a report of Grant Johnston, a traffic engineer. Mr Andrews’ view was that the matter was not ready to proceed and an application should be made forthwith to vacate the hearing date.
8 A Notice of Motion was filed on 2 August 2010 and sought an order that the hearing date of 22 November 2010 be vacated. At the time the Notice of Motion was filed, Mr Wyatt had not been able to obtain access to the file which had been retained by the previous solicitors.
9 When the matter came before me on 4 August 2010 on short notice, I directed that the former solicitors bring the file to Court on 10 August 2010 when the matter was next listed. That resulted in the file being produced to the present solicitors on 9 August 2010.
10 When the matter came before me again on 20 August 2010, Mr Andrews informed me that there were 15 volumes in the file. I stood the matter over to 2 September 2010 and expressed the hope that, notwithstanding the late passing of the file, the matter still might be able to be prepared for hearing so that it could proceed on 22 November 2010.
11 I was informed on 2 September 2010 that the Plaintiff would be pursuing the Motion but that it was resisted by the Defendant. I stood the Motion over to 17 September 2010 for hearing.
12 The Plaintiff relied on an Affidavit of Mr Wyatt sworn 2 August 2010 and an Affidavit from another solicitor in his practice, Julie Wyatt, sworn 25 August 2010. The latter Affidavit annexed the further advice from Mr Andrews of 16 August 2010.
13 In that advice Mr Andrews identified 2 liability issues. The first was that the Defendant appeared to be contending that the Plaintiff simply lost control of her vehicle and that no other vehicle was involved. The second issue concerned whether the Plaintiff was wearing a seatbelt. Mr Andrews said that there might be 30 witnesses who would be able to address those 2 issues. The witnesses appeared to be located in South Australia, France and Switzerland. Those witnesses in South Australia, it was explained to me at the hearing of the Motion, were police officers, ambulance officers and officers of the SES. In his advice Mr Andrews said that formal applications needed to be made to speak to those witnesses.
14 His advice then went on to consider matters concerned with quantum, and he reminded the solicitors that a large number of the matters in his earlier advice in relation to quantum still needed attention.
15 The Defendant opposed the vacation of the hearing date because, as Ms Amanda Harley, the solicitor for the Defendant, set out in her Affidavit, the Defendant is ready to proceed. She said that she had retained Mr Darrell Trim QC of senior counsel who had been involved in the preparation of the matter for trial. He had set aside the time for the hearing and, if it is vacated, the only availability he has before 30 June next year is a 3-week period from Monday, 25 April to Friday, 20 May 2011.
16 Mr David Wilson of counsel who appeared for the Defendant also reminded me of what the High Court said in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951.
Liability
17 As far as liability is concerned, it seems that reports have been obtained from the traffic engineers acting for each of the parties. Largely, all that is needed further in relation to the experts is that questions should be prepared for them to consider in conclave so that the giving of concurrent evidence at the trial can be facilitated. Bearing in mind that there is a further period of 2 months until the trial date, I do not think there will be any difficulty as far as that aspect is concerned.
18 Mr Andrews submits that the real difficulty in relation to liability is interviewing the various witnesses. It is important, he said, that the Plaintiff’s lawyers be able to interview all potential witnesses who came upon the scene. This is so, he submits, because some of them may not have any or any clear recollection of what they saw or heard.
19 It appears that after the accident the first people on the scene were a French couple based in Geneva, Claire Bousset and Thomas Chanin. Those 2 persons provided signed statements to the Plaintiff’s legal representatives prior to the commencement of the proceedings.
20 Thereafter, it appears that some other persons came upon the scene before the police officers, ambulance officers and officers of the SES attended. All of these persons referred to are said to number about 30. Mr Andrews says that they can or may be able to give evidence about whether the Plaintiff was wearing a seatbelt and what was said concerning the circumstances of the accident. In addition, Mr Andrews says that it is necessary to speak further with the Geneva-based couple about matters raised as liability issues by the Defendant, being the 2 matters to which I have referred. This is because the statements were provided before the proceedings commenced and attention was not given to those matters in the statements.
21 As far as the officers of the various services are concerned, a formal procedure needs to be observed with the result that it takes about a month to 6 weeks to speak to the individual officers concerned. Both Ms Harley (who practises in Adelaide) and Mr Wyatt understood that was the relevant period of time. It was no doubt for that reason Mr Andrews said in his advice of 16 August 2010 that formal applications needed to be made. It is perhaps unfortunate that those applications have not yet, a month later, been made, although Mr Wyatt said that it would happen this week.
22 Mr Andrews said that it would also be necessary to speak again to the Plaintiff’s sister, who resides in France. That involves difficulties because of her limited English and the need for an interpreter.
23 Mr Andrews also draws attention to the fact that the Defendant’s solicitors have, until as recently as the week the motion was heard, been requesting information from the Plaintiff’s solicitors. Mr Andrews submits that that might suggest the Defendant will not be ready for the trial and will point the finger at the Plaintiff for not providing the information sought in a timely manner.
Quantum
24 The Affidavit of Julie Wyatt disclosed that there were appointments for the Plaintiff to see Associate Professor John Yeo, a spinal specialist, on 27 August 2010, Dr Stephen Buckley, a rehabilitation physician, on 2 September 2010, Dr Anthony Durell, a psychiatrist, on 8 September 2010 and Associate Professor Robert Oakeshott, a spinal rehabilitation physician, on 10 September 2010. Ms Wyatt gave oral evidence that the report of Dr Yeo had been received, and it was tendered on the hearing of the Notice of Motion. The other reports have not yet been received. Mr Wyatt gave evidence that in relation to one of those doctors he expected to wait a long time because that had been his experience in another matter in which that doctor is retained by him at the present time, and the report is long outstanding.
25 Ms Wyatt also raised in her Affidavit that after those reports had been received it would be necessary to prepare costings of the future treatment that would be needed. That would involve matters such as housing, a modified motor vehicle, travel expenses, as well as the costs of equipment, future medicals and care costs.
26 In relation to the matters concerning quantum that Mr Andrews addressed in first advice of 28 June 2010, it is clear that all of those matters needed attention as he suggested. With the passage of time, some but not all of them have been dealt with. Whilst I think that the issue of costings is not likely to be quite as significant an issue in getting the matter ready for hearing as was suggested, there clearly remains work to be done in relation to that, as well as other aspects of the Plaintiff’s claim for damages.
27 Mr Wyatt said in his evidence that Professor Oakeshott had suggested that it would be necessary to speak again to, and possibly obtain reports from, some of the Plaintiff’s other treating doctors, such as her urologist, with relation to particular matters arising from her injuries. I accept that that may take time.
28 There is another aspect to the preparation of the quantum part of the claim. The Occupational Therapy report from Sue Beaver, prepared for the Defendant, makes reference in a number of places to the fact that time is needed to see how the Plaintiff will adjust to her disabilities, including whether she will be able to manage independently and to what extent. That is a significant matter in terms of the level of care she will need.
Should the trial go ahead?
29 During the course of the hearing of the Notice of Motion, I raised with the parties the suggestion of separating issues of liability and quantum with a view to facilitating at least the liability hearing going ahead in November. Although both parties maintained their primary position in relation to the Notice of Motion, both appeared to accept that a liability hearing only might be some sort of compromise to the problem. I made the suggestion of splitting the trial prior to Mr Wyatt being cross-examined. It was possible, therefore, to gauge his assessment of that proposition in terms of the preparation of the case. Mr Wyatt certainly agreed that if the issue of damages was not to proceed in November that would enable him to give more time to the better preparation of the liability aspects of the case.
30 Whilst I am sympathetic to the Defendant’s position, not the least reason for which is that they have engaged counsel and made detailed preparations for hearing the case in November and that, unless the Plaintiff is successful in the claim (and there is a serious issue of liability), any costs order made consequent upon a vacation of the proceedings would not be likely to be satisfied, I need to strike a balance between those considerations and the concerns of the Plaintiff to be properly prepared for the hearing.
31 Whilst I have regard to what the High Court said in Aon and the provisions of ss 56 and 57 Civil Procedure Act 2005, I consider that a proper balance between the interests of the Plaintiff and the Defendant does not involve forcing the Plaintiff to conduct, at least, her case on damages at the November hearing. I can accept that the Notice of Motion seeking expedition was made with the best interests of the Plaintiff in mind because of the issues on which it was based. Nevertheless, it can now clearly be seen, and may well have been able to be seen earlier if the matter had been examined closely, that far more preparation was needed for it to be thought that this matter would be ready for a hearing this year when the proceedings only commenced in February 2010.
32 In any event, that was followed by the rather unfortunate, and (from the Plaintiff’s point of view) unexpected, situation that the previous solicitors declined to hand over their files for more than 2 months, thus severely impeding the preparation of the matter. Although there has been some mild criticism of the present solicitors for not having acted more quickly after they obtained the file, I do not think it is helpful to concentrate on what might have been. The only real matter for determination is whether as a matter of justice the Plaintiff should be required to conduct the whole of the proceedings when it seems likely that they will not be adequately prepared at least as far as the quantum of damages is concerned.
33 Even although it was the Plaintiff who sought the present early hearing date, given what has transpired I do not consider it would be fair to the Plaintiff to force her to conduct the proceedings when it is likely they will not be adequately prepared. Had the file been promptly transferred the case may well have been ready on all issues.
34 In my opinion, the appropriate course is to make an order directing that liability and quantum be separated and the issue of liability be determined first. Without visiting the sins (if sins they were) of the former solicitors on the Plaintiff by holding her to the existing early date for hearing, she is not, on the other hand, entitled to a Rolls-Royce approach to the litigation.
35 Although I accept that this is a very large claim and that the Plaintiff’s current legal advisors wish to do everything they can to ensure the Plaintiff is successful, I do not think that involves delaying the whole of the hearing just so that every person can be spoken to, against the possibility that the first or second or third persons interviewed do not have any or any accurate recall. The Plaintiff will undoubtedly have at her disposal her former partner and her sister, who will give evidence about the liability matters. They will be the most significant witnesses in that regard.
36 Thereafter, Ms Bousset and Mr Chanin will give evidence as those first upon the scene. There is then said to be a Swiss-German person who needs to be tracked down. However, even if no other member of the public who came upon the scene is able to be located, the Plaintiff will still have as witnesses some or all of the police officers, the ambulance officers and the SES officers. I understand that the Plaintiff remained trapped in the car until one, at least of those groups arrived. Even allowing for the fact that some of these persons may not be able to be located or may not have recall of significant matters, it does not seem to be consistent with s 56 Civil Procedure Act to delay a liability hearing when nothing more is put forward than a possibility that some of those spoken to may not be of some or any assistance to the Plaintiff.
37 Mr Wyatt said that he was surprised that something was not done earlier to split liability and quantum given the state of preparation of the evidence. He said, however, that there still needs quite a bit to be done to prepare the liability case. If Mr Wyatt is now not distracted by having to worry about the quantum issues, and even allowing for the other matters in his practice requiring attention (as he mentioned in his evidence), I am persuaded by his, perhaps reluctant, concession that if he has to get the matter ready by November it will be ready.
38 I do not consider the recent requests by the Defendant’s solicitors for further information from the Plaintiff to be particularly relevant to the question whether the trial, either in whole or on limited issues, should proceed. The Defendant says it is ready. Its failure to seek any hitherto un-requested information earlier will be its own problem – it will not delay the trial. The principal concern is the readiness of the Plaintiff. For the reasons given, I consider the Plaintiff can and will be ready by November for a trial on liability.
39 There are, in any event, some other advantages in splitting the trial in this case. If the Plaintiff is unsuccessful in liability, costs associated with the quantum aspect of the matter will be minimised from now. If the Plaintiff is successful, there is a much greater likelihood that the quantum of the claim will be settled. In any event, the Plaintiff will have available to her the provisions of s 84 Civil Procedure Act for interim payments pending the final hearing on quantum.
40 I note that the matter was fixed for 3 weeks on the basis that liability and quantum were to be heard together. If liability only is to be heard I should expect that the trial would be completed in 2 weeks. I propose to delay the commencement of the trial until 29 November to give the Plaintiff’s legal advisors a little extra time to assist with the interviews of the various liability witnesses.
41 I do not consider that the Defendant suffers any substantial prejudice by the course of splitting the trial and delaying the start of the hearing. There may be some small cost consequences that will be required to be met by the Plaintiff. In the event the Plaintiff is unsuccessful on liability the costs, in that regard, which will probably be unrecoverable, will be small.
42 I make the following orders:
(1) Order pursuant to Part 28 rule 2 that the question of liability be decided separately and in advance of other issues in the proceedings.
(3) The Plaintiff is to pay the Defendant’s costs of the Motion to vacate, and costs thrown away by reason of the delay of the hearing from 22 to 29 November 2010.(2) I vacate the hearing date of 22 November 2010 and in lieu thereof fix the hearing of the trial on liability for 29 November.
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