Runcan v Svedala Australia Ltd - [2008] WADC 104

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RUNCAN -v- SVEDALA AUSTRALIA LTD [2008] WADC 104

CORAM: REGISTRAR KINGSLEY

HEARD: 13 JUNE 2008

DELIVERED : 15 JULY 2008

FILE NO/S: CIV 3317 of 2001

BETWEEN: VIOREL RUNCAN
Plaintiff
AND
SVEDALA AUSTRALIA LTD (ACN 000 197 428)
Defendant
EXTRAMAN WA PTY LTD
Third Party
ROYAL & SUN ALLIANCE INSURANCE AUSTRALIA LTD
First Fourth Party
GERLING AUSTRALIA INSURANCE COMPANY PTY LTD
Second Fourth Party

Catchwords:

Practice - Application for trial on the issue of liability and s 175 Workers' Compensation & Rehabilitation Act 1981

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B Nugawela
Defendant:     Mr D Clyne
Third Party  :     No appearance
First Fourth Party          :     No appearance
Second Fourth Party      :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
Defendant:     Deacons
Third Party  :     Greenland Brooksby
First Fourth Party          :     Kott Gunning
Second Fourth Party      :     Dibbs Abbott Stillman

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

Carlo Nobile S.p.A. Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47

REGISTRAR KINGSLEY: The plaintiff's application is to have the issue of liability, including the issue of the s 175 Workers' Compensation & Rehabilitation Act 1981 defence, tried as a preliminary issue. The defendant opposes the application.
The plaintiff was, at the material time, a sub contract welder. The plaintiff alleges that in the course of undertaking the welding work required of him he suffered injury. The plea in par 4 of the Statement of Claim is that as a result of repetitive twisting and bending, over a period of days, the plaintiff suffered a gradual onset of right sided thoracic facet joint dysfunction and inflammation involving his right shoulder and cervical spine. The defendant does not admit the allegations in par 4 of the Statement of Claim and denies it was negligent.
The plaintiff's counsel submits that the defendant's case is not based on any allegation that the plaintiff is setting out to defraud. The plaintiff's counsel submits that the medical reports go to the issue of the quantum of the plaintiff's claim, not the mechanics of the injury itself. The plaintiff's counsel refers to par 22 of the affidavit of Stanley Peter Tsaridis ("Tsaridis") sworn 26 May 2008 on behalf of the defendant wherein Tsaridis deposes;
"In light of the issues raised above, the defendant states that there exists a real issue on causation and whether the alleged injuries suffered on 7 September 1999 caused any permanent incapacity."
and goes on to submit that this issue only goes to quantum and not causation.
To put par 22 of Tsaridis' affidavit in context, Tsaridis had, in previous paragraphs selectively quoted from a report of Dr N Batalin dated 13 March 2001 and from Mr S Brash dated 16 April 2002. The quotations selected informed Tsaridis' belief that there is evidence questioning the plaintiff's credit.
It is this point that is emphasised by defendant's counsel. As there is no clear cut incident, the plaintiff's evidence will be scrutinized with great care. What the plaintiff has said to the medical practitioners and specialists, and what these people make of the plaintiffs statements becomes highly relevant. All this goes to the issue of liability, as well as quantum. The evidence in relation to both aspects are inextricably linked according to defendant's counsel.
The submissions of the plaintiff focus on the s 175 issue. Paragraph 4 of the written submissions refers to significant costs and delays unless the issue of liability and the s 175 defence is tried beforehand. The submissions at par 5 and 6 refer to the s 175 defence and the fact that if the s 175 defence is successful then the matter can be stayed whilst the inevitable proceedings at WorkCover are played out. Paragraph 9 of the written submissions states that if negligence is established and the s 175 defence is dismissed then the prospect of settlement is enhanced.
The relevant principles in relation to an application for separate trial of issues has been conveniently summarised by McKechnie J in Carlo Nobile S.p.A. Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 where at [4] he states:
"•A separate trial of issues is only appropriate in clear and      simple cases.
•Separate trials of issues should only be embarked upon when      the utility, economy and fairness are beyond question.
•The fact that the resolution of a separate trial may determine the litigation is relevant.
•Separate trials of issues may be appropriate where it is likely        to save expense and inconvenience.
•There is a focus in the Rules of Supreme Court on the expedition of determination of matters before the Court and separate trials of issues may advance the expedition.
•A possibility that the determination of issues tried separately may lead to settlement should be taken into account even though the issues may not finally dispose of the action.
•In many cases the formulation of specific questions to be tried separately, from and in advance of other issues, will assist in the resolution of the matters in issue if the questions are capable of final answer in accordance with the judicial process.
•Separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law.
•The procedure should be confined generally to cases where facts are complicated and the legal issues short, otherwise it can be a treacherous shortcut.
•Separate trials may be productive of delay, extra expense and uncertainty of outcome, which they are intended to avoid. Saving some time is often illusory when the parties have the necessity of making full preparation and factual matters relevant to others which overlap.
•There is potential for further appeals."
In this action the defendant's counsel has stated that the medical specialists will be called on the issue of liability. A separate trial will not be economical or fair as the doctors will have to be called twice. I note plaintiff's counsel submission that all the trial Judge has to find is that the plaintiff suffered an injury. But in reaching that conclusion the Judge needs the benefit of all the evidence.
In this matter, where the issue of liability itself and the s 175 defence are to be determined, there can be no formulation of a specific question to be tried as a preliminary question. The issue may well have been different had the plaintiff sought to pursue, as a separate trial, of the s 175 defence, but that is not the case.
If negligence is established and the s 175 defence is dismissed then there may be a prospect of settlement. But if there is no settlement the costs have been increased. In the manner in which the defendant intends to present its case there is an overlap of issues between liability and quantum. There would need to be full preparation for the trial on both issues.
In my opinion a separate trial on the issue of liability and the s 175 defence will increase costs and not necessarily bring about any savings in time. The plaintiff's application is dismissed. The plaintiff is to pay the defendants costs on the application.