Tjokro bht Tjokro v AAI Ltd t/as Vero Insurance

[2023] NSWSC 62

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tjokro bht Tjokro v AAI Ltd t/as Vero Insurance [2023] NSWSC 62

Hearing dates:

8 February 2023

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

(1)   The application for a separate hearing of liability is refused.

(2)   The defendant is to serve any report in response to the report of Mr Cockbain dated 16 January 2020 within nine months of today.

(3)   The defendant is to inform the plaintiff’s solicitors of any potential third-party, or relevant insurer, within nine months of today.

(4)   The costs of the notice of motion filed on 7 December 2021 are costs in the cause.

Catchwords:

PROCEDURE – notices of motion – application to separate liability from quantum – damages must await plaintiff becoming an adult – defendant’s case on liability not ready – motion dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215

Thomas v Oakley [2003] NSWSC 1033

Category:

Procedural rulings

Parties:

Mr L Tjokro, by his tutor (Plaintiff)
AAI Ltd t/as Vero Insurance (Defendant)

Representation:

Counsel:
Mr J Isackson (Plaintiff)
Mr D Kelly (Defendant)

Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s):

2019/317890

JUDGMENT

1. The plaintiff, by his tutor, commenced proceedings against the defendant by the filing of a statement of claim on 11 October 2019. An amended statement of claim was filed on 14 December 2021. A defence was filed on 21 February 2022.

2. The plaintiff was born in 2008. When he was eight years of age, in November 2016, he was in Top Shop in a Westfield Shopping Centre. A heavy marble bench fell onto the plaintiff causing him significant injury.

3. Top Shop is now in administration so that the proceedings are against its public liability insurer.

4. In brief terms, the plaintiff alleges that Top Shop breached its duties as an occupier of the premises. Liability has been denied.

5. Medical opinion is to the effect that the plaintiff’s injuries, to the extent that they will determine the remainder of his life, should not be assessed until he is an adult.

6. There are still three years remaining until he reaches 18, assuming that age is consistent with adulthood.

7. A notice of motion filed on 15 July 2021, on behalf of the plaintiff, seeks an order that liability be determined separately from damages. Such an order is permitted by r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The order is opposed by the defendant.

8. The notice of motion is supported by the following affidavits:

1. Mr Alexander Morrison, affirmed on 15 July 2022;

2. Mr Thomas Goudkamp, affirmed on 19 December 2022; and

3. Mr Thomas Goudkamp, affirmed on 2 February 2023.

9. The defendant relies on the affidavit of Ms Gabriela Montalvo affirmed on 2 February 2023.

10. The plaintiff says that liability should be determined separately because there are still a number of years before the matter will be ready for hearing, during which time “…the determination of liability will be jeopardised by the loss of records, unavailability of witnesses and dimming of memory”.

11. Accordingly, the plaintiff says the purposes of s 56 of the Civil Procedure Act 2005 (NSW) will be facilitated if liability can be determined sooner, perhaps obviating the need for further expense to be incurred in a damages hearing.

12. The defendant boldly says there is no “risk in this case” of records being lost, witnesses being unavailable or memories dimming. This is because there is CCTV footage of the events, and its occurrence is not disputed. The defendant adds that the plaintiff, having served an expert report on liability, has not identified any witnesses who might assist. This of course obviously excludes the author of the report.

13. The parties have identified the principles to be applied. They both refer to the decision of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]. The plaintiff has specifically referred to Thomas v Oakley [2003] NSWSC 1033 as displaying an “analogous situation”.

14. The analogy said to exist with Thomas requires a somewhat broad acceptance. In Thomas, the plaintiff was three and a half years of age when the application was heard. Assessment of his future needs was not likely to be made until he reached “skeletal maturity” which was many years in the future: at [16]. This is to be contrasted with the present case where the plaintiff is now fifteen years of age, meaning the assessment of his needs can take place within a significantly shorter period of time.

15. A separate hearing was granted in Thomas. Wood CJ at CL seems to have taken particular account of, “…issues of liability to be determined in the light of contemporary medical knowledge”: at [23]. This is not a consideration in the present case. The assessment of whether there had been a breach of Top Shop’s duty of care will be equally capable of examination whether occurring sooner or later.

16. In referring to s 56, the plaintiff submitted that time and costs would be saved by taking its suggested approach. The difficulty however in a case like the present, where the injuries are such that there is the potential for the ultimate award of a large sum of damages, the losing party on liability may well appeal. This will result in pushing the final damages hearing even further away.

17. I also note the defendant has not yet prepared any expert evidence so that the possibility of the hearing taking place soon is unlikely. The affidavit of Ms Montalvo sets out the steps that have been taken to ascertain information concerning liability. She states that “…investigations to identify who was responsible for the manufacturing/designing of the Queue Barrier, and who was responsible for its installation, and the fit-out of the Premises are continuing”.

18. The defendant tendered a letter dated 19 April 2022 from K2 Law to show that the shopfitting had been performed by a company from the United Kingdom. The defendant’s case on liability is clearly nowhere near ready.

19. Had the defendant’s case on liability been more prepared, the plaintiff’s position would have been stronger. As it is, I do not think the basis for separating liability from damages has been established and accordingly the motion will be dismissed. In my view, there is little point in pursuing a separate hearing on liability if the defendant’s position is not yet known. It may even be that once the defendant’s enquiries have been completed, liability may be less of an issue.

20. I do however think that the defendant’s preparation should be regulated, with directions, to ensure that it will certainly be ready by the time the quantum case has been ascertained.

21. As far as costs are concerned, the notice of motion requests that cost be in the cause. I think that is the appropriate order, notwithstanding that the plaintiff has not obtained the orders he sought.

22. I make the following orders:

1. The application for a separate hearing of liability is refused.

2. The defendant is to serve any report in response to the report of Mr Cockbain dated 16 January 2020 within nine months of today.

3. The defendant is to inform the plaintiff’s solicitors of any potential third-party, or relevant insurer, within nine months of today.

4. The costs of the notice of motion filed on 7 December 2021 are costs in the cause.

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Amendments

15 February 2023 - Coversheet - typographical error amended.

21 February 2023 - Coversheet - typographical error amended.

Decision last updated: 21 February 2023