VA BHNF CT v McBride

[2015] NSWSC 556

Supreme Court

New South Wales

Medium Neutral Citation:

VA BHNF CT v McBride [2015] NSWSC 556

Hearing dates:

13 May 2015

Date of orders:

13 May 2015

Decision date:

13 May 2015

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Separate hearings are to be conducted to determine firstly the issue of liability and subsequently the issue of quantum.

(2) I direct that the hearing as to the issue of liability is to be given priority and all expedition possible by the court.

(3) I confirm the current listing of the matter on 27 May 2015 before the registrar for directions and direct that the registrar give appropriate directions for the expedited hearing of the liability issue.

(4) Costs in the matter are to be costs in the cause.

Catchwords:

CIVIL LAW – separate hearings to be conducted to determine issues of liability and quantum- no point of principle

Category:

Procedural and other rulings

Parties:

VA BHNF CT (Plaintiff)
Barry Anthony McBride (Defendant)

Representation:

Counsel: CT in person (Plaintiff)
Mr P.R. Cummins SC (Defendant)

Solicitors: CT in person (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2013/44853

Publication restriction:

Plaintiff not to be identified.

ex tempore Judgment

1. On 2 December 2014, the defendant in these proceedings, Mr Barry Anthony McBride, filed a motion in the District Court Registry at Newcastle, where proceedings were then listed, seeking the severance of proceedings in relation to the determination of the liability alleged against him by the plaintiff, and the determination of quantum, should that latter become an issue. The proceedings have subsequently been moved from the District Court to this Court, I infer, because of the possible quantum of damages involved.

2. The motion filed by Mr McBride seeks expedition of the matter additionally to the severance of issues of liability and quantum.

3. The history of the proceedings relates to a Statement of Claim failed by the plaintiff, VA, by his next friend being CT. The Statement of Claim similarly was originally filed in the District Court of New South Wales. It seeks damages in relation to an incident that occurred at premises in Wamberal, at an address in Calais Road, in late March early April 2012.

4. In brief, the Statement of Claim asserts that the defendant negligently left a clear glass vessel in reach of children and that vessel contained a quantity of caustic soda. The plaintiff is said to have gotten access to the glass vessel and, in the belief that the vessel contained water, consumed the liquid, which of course is a very acidic substance and is said to have occasioned him considerable injury.

5. VA is only a child. At this time the child is only six. The liability is disputed by the defendant who denies those matters raised in the Statement of Claim. Accordingly, the matter will ultimately have to be determined by the Court.

6. The Notice of Motion has been filed for some particular reasons principally related to the defendant's age and his state of health. Mr McBride is currently 81 years of age and his health is poor. Because of that, it has been suggested on his behalf and I accept, that it is in the interests, not just of the defendant but also of the plaintiff, to have the matter expedited, at least in so far as the question of liability is concerned, so that Mr McBride's evidence is available to the Court as viva voce evidence and can be tested in cross-examination by the plaintiff.

7. The defendant's age and health is such that there is at least a reasonable possibility that if the hearing is delayed, as it could be if the questions of quantum of damages continue to be part of the claim to be determined together, then the evidence of the defendant might in fact become unavailable.

8. Here, the issues of liability and quantum can be severed with reasonable convenience to all parties. Liability depends very much on those things set out in the Statement of Claim and those things being established before the Court, that is, whether or not it can be established to the requisite standard that the defendant owed the plaintiff a duty of care, and that he was negligent such that that duty was breached, with the child's injuries being occasioned as a result of that negligence.

9. Quantum will be based on some very different considerations none of which, it seems to me, would involve Mr McBride as a witness.

10. It is sensible and indeed prudent in my view to have the issue of liability determined quickly and that can be done if the hearing is given some expedition as to the issue of liability. Expedition is not really possible in terms of the issue of quantum because determining the quantum of any damages which the Court ultimately finds the defendant is liable for will be a matter which will take some considerable time.

11. The medical evidence before the Court on the Motion is to the effect that the injuries to the plaintiff will not really be fully known until such time as he reaches his teenage years. Certainly I think there is some benefit to the plaintiff if the issue of quantum of damages is left at least for some period so that there is some better evidence available as to the extent of his injuries and the extent to which those injuries will impact upon the plaintiff's future quality of life.

12. It would appear that there is only one witness who would give evidence common to both the issues of liability and the issue of quantum; that is CT. CT has expressed the wish that the matters be kept together but she is content for the Court to adjudicate the issue and wished to make no submissions on the determination of the motion.

13. She is concerned plainly that VA’s interests are not prejudiced by the severance of the two issues and the expedition of the determination of liability. I have given that issue careful consideration because CT is unrepresented and because, as an unrepresented litigant, she is here doing her best for VA. I cannot see on the material that there is any prejudice occasioned to the plaintiff's case by severance of the two issues and expedition of the determination of the liability issue.

14. In fact it seems to me to be quite the contrary; that it is in the interests of both parties that the issue of liability be determined as quickly as is possible, with the issue of quantum given some further time so that the medical evidence relevant to damages is better able to be prepared. Accordingly I propose to grant the defendant's motion.

Orders

15. The orders that the court makes are these:

1. Separate hearings are to be conducted to determine firstly the issue of liability and subsequently the issue of quantum.

2. I direct that the hearing as to the issue of liability is to be given priority and all expedition possible by the court.

3. I confirm the current listing of the matter on 27 May 2015 before the registrar for directions and direct that the registrar give appropriate directions for the expedited hearing of the liability issue.

4. Costs in the matter are to be costs in the cause.

**********

Decision last updated: 15 February 2016