Wang v Buller

[2015] NSWSC 764

Supreme Court

New South Wales

Medium Neutral Citation:	Wang v Buller [2015] NSWSC 764
Hearing dates:	9 June 2015
Date of orders:	09 June 2015
Decision date:	09 June 2015
Before:	Garling J
Decision:	(1)Stand the matter over to 9.30am on Friday, 12 June 2015 before Garling J.
Catchwords:	PRACTICE AND PROCEDURE – civil – notice of motion – order sought to dismiss claim for want of prosecution – reasonable explanation for delay – order declined – alternative order sought to have liability and quantum heard separately – significantly injured plaintiff who resides in China – plaintiff submits unreasonable burden to travel to Australia twice – preferable for hearing on liability to take place promptly – potential for long delay in determining case on damages – appropriate to separate liability and damages – no point of general principle
Legislation Cited:	Civil Procedure Act 2005 Motor Accidents (Lifetime Care and Support) Act 2006
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Hanbing Wang (P) Natalie Therese Buller (D)
Representation:	Counsel: P Wallis (P) R O’Keefe (D) Solicitors: Graham Jones Lawyers (P) Moray & Agnew (D)
File Number(s):	2013/103783
Publication restriction:	Not Applicable

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EX TEMPORE Judgment

1. On 2 July 2011 the plaintiff, Hanbing Wang, who was at the time a student attending the University of New South Wales, was crossing Anzac Parade at Kensington outside the University when she was struck by a motor vehicle being driven by the defendant Ms Buller.

2. The plaintiff was seriously injured. She sustained a traumatic brain injury with haemorrhaging in the subarachnoid space, which required drainage and consequential treatment. She was an in-patient at St Vincent's Hospital from the date of her accident until her discharge seven weeks later on 23 August 2011.

3. The plaintiff, who is a Chinese citizen, was studying in Australia at the time of her accident. Her family lived in China. When she was discharged from St Vincent's Hospital, she returned immediately by aeroplane to China, accompanied by a medical escort, where she has remained ever since.

4. On 2 March 2013, proceedings were commenced in this Court by the plaintiff against the defendant. The proceedings were not served until September 2013 because there was difficulty locating the defendant, and the solicitors appointed by the compulsory third-party insurer of the defendant did not have instructions to accept service.

5. The plaintiff has been accepted as a member of the Lifetime Care Scheme created under the Motor Accidents (Lifetime Care and Support) Act 2006. As a result, there are only two issues by way of damages which, if the plaintiff was successful on liability, would be determined in this Court, namely, an amount for non-economic loss and an appropriate sum for lost economic capacity.

6. At the time of the accident the plaintiff was undertaking a Master of Business degree in accounting and intended to complete a Masters Degree in financial analysis at the University of New South Wales. She intended to obtain full‑time employment at the conclusion of those degrees. The plaintiff alleges that she has not been able to earn any income since the accident and is permanently restricted from obtaining any work.

7. The matter has now been before the Court on 12 occasions, a number of which preceded service in September 2013. There have been some difficulties in preparation of the proceedings occasioned by the fact that the plaintiff resides in China, and that communication with her has been challenging.

8. By Notice of Motion filed 24 February 2015, the defendant seeks alternate relief in the following form:

“1.   The defendant seeks an order that the plaintiff's claim be dismissed for want of prosecution.

2.   In the alternative, the defendant seeks an order that the issue of liability in this matter be heard separately from the issue of quantum by the Court.”

9. The plaintiff opposes both aspects of the defendant's motion.

10. Ordinarily, the Court is reluctant to order a separate trial of liability and damages. Well known authorities caution against such a course because efficiency in litigation is generally best achieved by having a single hearing on all issues at the same time. However, there are always cases in which the interests of justice and the furtherance of the overriding purpose in s 56 of the Civil Procedure Act 2005 have the consequence that a separate trial is ordered. This is one such case.

11. Having regard to the plaintiff's injuries, she is unlikely to be able to give any substantive evidence about how the accident happened. There are five lay witnesses who have given some account about the events of the accident. They are the defendant and a passenger in her motor vehicle, two witnesses who saw what occurred, and a third witness who was also present in the vicinity of the accident. The investigating police officers may also have some evidence to give with respect to what was found when they arrived at the scene.

12. Mr O'Keefe, counsel for the defendant, properly draws attention to the consequences of delay on the reliability and accuracy of the witnesses' accounts. He accepts that statements recording their accounts have been obtained, but nevertheless emphasises that in a case in which there is a real dispute as to liability, having a hearing as soon as is reasonably convenient is to be much preferred to a delayed hearing. In general terms, he submits a hearing on liability could take place relatively promptly.

13. The plaintiff's medical condition is a little elusive. There is of course the material from St Vincent's Hospital which relates to the period that the plaintiff spent as an in-patient at that Hospital. After that, the only available material as to the plaintiff's present condition is a Discharge Summary relating to a hospital admission at the Beijing Boai Hospital of the China Rehabilitation Research Centre. That Discharge Summary relates to an admission between 16 December 2011 and 19 April 2012. I would infer, although I do not know, that between when the plaintiff left Australia in August 2011 and when she was admitted to the China Rehabilitation Research Centre in December 2011, she must have been in hospital elsewhere. In any event, it does appear that the plaintiff has been permanently and significantly injured, but the only existing report does not give the Court a complete picture of the present state of the plaintiff's current disabilities.

14. The contact details for the plaintiff's treating doctors in China have been provided to the defendant, but neither the plaintiff nor the defendant have as yet been able to obtain any reports from the plaintiff's treating practitioners. There is no reason to think that that position will change in the immediate future. Consequently, it could be a long time before the plaintiff's case on damages is able to be prepared, if one was to rely entirely upon sources of evidence in China.

15. The plaintiff submits that the matter should not be struck out for non‑prosecution because all reasonable attempts have been made to prepare the case for hearing, and that such delays as have occurred are explicable and not unreasonable. I agree with this submission. In the particular circumstances of this case, the evidence of the plaintiff's solicitor establishes a reasonable and understandable explanation for why there has been such delay.

16. With respect to whether or not a separate trial should be heard, the plaintiff submits that it would be an unreasonable burden for her to have to come to Australia on two separate occasions, once for the hearing of the case on liability, and the other for a hearing of any assessment of damages.

17. I accept that that would be a burden, but I am not persuaded that it is an unreasonable one in all of the circumstances. It seems to me that if the plaintiff comes to Australia to attend the hearing on liability, then it would be entirely possible for appropriate arrangements to be made at that time for the plaintiff to be examined by Australian practitioners and for her to be adequately assessed, to have the extent of her disability identified, and for evidence to be promptly gathered, so that even while she is here, a hearing on damages may be able to take place.

18. To that end, I am satisfied that the parties should make arrangements for the plaintiff to be psychologically tested and assessed either by a single agreed expert, or else by two experts operating together, and for any medical examinations which are necessary to be undertaken jointly by experts retained by each of the parties. In this way, the likelihood of a dispute will be minimised, the likelihood that the plaintiff will have to be in Australia for an unduly lengthy period will be minimised, and the possibility of a short hearing on damages, if the parties are unable to agree, can be retained if the Court has sufficient flexibility with dates.

19. I am also satisfied that having the plaintiff attend Australia in the context of a hearing on liability will provide an occasion for an order of the Court to be made for mediation of the claim prior to that hearing commencing at a time when the parties have sufficient material to enable them to discuss the issues which arise in the proceedings.

20. Even if I did not think that it was appropriate to separate liability and damages, it seems to me, on the probabilities, likely that the plaintiff would need to attend in Australia at least on two occasions, first for undertaking assessments and, secondly, for a hearing.

21. It is in the interests of justice in this case to have a separate hearing on liability.

22. In all of the circumstances, this is a matter in which it is appropriate to decline the order sought that the matter be dismissed for want of prosecution, but to uphold the defendant's Motion, which provides for an order pursuant to Pt 28 that all issues of liability in this matter be heard separately from, and in advance of, all other issues in the proceedings, and I will make such an order. I will order that the motion be otherwise dismissed and that the costs of the motion be the costs in the cause.

23. However, it is appropriate that the parties prepare some agreed short minutes reflecting the orders which have been made and the procedural directions which the parties agree would be best to progress the matter.

24. Accordingly, the only order I will make today is:

1. Stand the matter over to 9.30am on Friday, 12 June 2015 before Garling J.

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Decision last updated: 18 June 2015