Warren v District Council of the Lower Eyre Peninsula - [2020] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA
[2020] SADC 87
Judgment of His Honour Judge Burnett
3 July 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - OF LIABILITY AND DAMAGES
The applicant claims that he suffered severe personal injuries when he fell 10 metres from cliffs near Greenly Beach Rock Pools on Eyre Peninsula on 18 December 2013. The applicant claims that he arrived in the car park of the rock pools and upon exiting the motor vehicle attempted to descend to the beach and the rock pools by a sand dune. He claims that he was unaware that the sand dunes ended in a 10-metre cliff.
The applicant sues the respondent council in negligence. The applicant claims that the respondent prepared and maintained the road to the rockpools and the car park. The applicant claims that the respondent owed a duty of care to persons using the rock pools, including the applicant, which duty required the respondent to erect barriers between the car park and the cliff face, to erect warning signs regarding the danger of the cliff and to take other action to prevent an entrant to the site, such as the applicant, from falling over the cliffs.
The applicant seeks a separate trial of quantum and liability pursuant to Uniform Civil Rule 151.1 (formerly District Court Rule 211). The applicant submitted that the determination of liability would dispose of a substantial issue in the action or substantially narrow the area of dispute. The applicant submitted there would be significant savings in time and costs of the parties and there would be a real prospect that the issue of quantum would later be resolved. The applicant further submitted there would be no issue concerning overlapping credit findings as the applicant had no memory of the accident.
The respondent opposed the application and submitted that the applicant had not shown a sufficient reason to depart from the general rule that all issues should be determined at the same time. Further the respondent submitted that there would be undue fragmentation of the trial process if there were separate trials. The respondent also submitted there would be a possibility of overlapping issues and inconvenience in having separate trials.
Held: Granting the application and ordering that there be a separate trial of liability and quantum.
This was a case where there was good reason to depart from the general rule that all issues be heard in the one trial. In this case there was a clear demarcation of evidence relating to liability and quantum. There was no significant risk that credit findings on a liability trial would impact upon the hearing of the trial relating to the assessment of damages.
There would likely be significant savings as to costs and expense if liability was determined first. There was a real prospect that, in the event that liability was established favourably to the applicant that the quantum trial could be resolved without the need for a trial. If the applicant was unsuccessful on liability, there would be no need for a quantum trial, saving the parties significant costs.
In circumstances where there was a clear demarcation of issues and evidence relating to liability and quantum, there was no unfairness to the respondent in granting the order for separate trials.
District Court Rules 2006 (SA) r 211; District Court Act 1991 (SA) s 38; Uniform Civil Rules 2020 (SA) r 1.4, 2.2, 5.1, 12.2, 151.1; Civil Liability Act 1936 (SA) s 36, 37; Local Government Act 1999 (SA) s 244, referred to.
SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1; Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Ferraretto and Snappy Apple Pty Ltd v Cowell Clarke [2012] SASC 224; Rivers v Rivers [2002] SASC 197; Duke Group Limited (in liq) v Alamein Investments Ltd (in liq) (No 2) [2006] SASC 33; Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 ; Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623; O’Connor v Suman [2015] NSWSC 1812; Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309; Thomas v Oakley [2003] NSWSC 1033 ; McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400; Arnott v O’Leary [1998] TASSC 15; Pioneer Park Pty Ltd (in liq) v ANZ Banking Group Ltd [2005] NSWSC 832; Admiral I Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105; McDonnell v Northern Sydney Central Coast Area Health Service [2009] NSWSC 1364; Miller v Lithgow Council [2013] NSWSC 427; Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54; FAI General Insurance Co Ltd (in liq) v Sherry & Ors [2002] SASC 431; City of Onkaparinga v Hassell Pty Ltd and Ors [2007] SASC 163; Liberty Financial Pty Ltd v Scott [2003] FCA 226; Wells v Council of City of Orange [2016] NSWSC 589, considered.

WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA
[2020] SADC 87

By interlocutory application dated 23 January 2020, the applicant sought an order that there be a separate trial on the issues of duty of care, standard of care and negligent breach and that the issue of the assessment of damages be adjourned until further order. In short, the applicant sought separate trials of liability and quantum.
The basis of the application by the applicant was that the determination of liability would dispose of a substantial issue in the action or at least substantially narrow the area of dispute. There would be significant savings in time and costs to the parties. Once liability was determined, there was a real prospect that the issue of quantum would be resolved without the need for a further trial. The applicant further submitted that there was no issue concerning overlapping credit findings as the applicant had no memory of the accident.
The respondent opposed the application. It submitted that the applicant had not established a sufficient reason to depart from the general rule that all issues should be heard at the same time. The respondent submitted that a separate hearing of liability and quantum would result in the undue fragmentation of the trial process. The respondent submitted there would be delay in the ultimate disposition of the matter and any potential savings of costs may prove to be illusory. The respondent further submitted that there would be an overlap in the issues, such that there would be credit findings in relation to some witnesses who gave evidence in a liability trial and who would also give evidence in a quantum trial. The respondent also pointed to inconvenience in arranging two trials.
The application was brought pursuant to rule 211 of the District Court Rules 2006 (DCR) which states that the court may order the separate trial of an issue of fact or law (or an issue involving mixed questions of facts and law) involved in an action. The applicant also referred to s 38 of the District Court Act 1991 which was invoked by the statement of claim where the plaintiff sought a declaration of liability followed by an interim assessment of damages. Section 38 implicitly recognises that there will be separate trials of liability and quantum, at least in the final assessment of damages.
However, the interlocutory application did not invoke s 38, nor was evidence adduced as to the need for an interim award of damages. I therefore propose to determine the application pursuant to the DCR 211 and its successor under the Uniform Civil Rules 2020 (UCR). The parties prepared their argument on the basis that DCR 211 would govern the application. Before the application was heard the UCR came into force. In my opinion, UCR 151.1 governs the determination of this application. I consider that the hearing and determination of the application for a separate trial constitutes a step in the proceedings for the purposes of UCR 1.4(1)(a)(ii). A step in the proceedings is defined in UCR 2.2 to include a document filed, process issued, action taken or order made in the proceedings. The parties have filed written submissions, a hearing has been conducted and following these reasons an order will be made.
The applicant accepted that the UCR 151.1 would apply. The respondent submitted that the application should be determined under the old rules but submitted, quite correctly, that nothing turned on the matter. UCR 151.1 provides that:
(1)Unless the Court otherwise orders, when it is ordered that a matter proceed to trial, there is to be a single trial of all issues (other than costs) in the proceeding.
(2)The Court may order that there be separate trials of separate issues in a proceeding and may determine the order in which such trials are to be heard or determined.
The rule goes on to give examples including –
In a proceeding in which the applicant seeks damages for personal injuries, the Court might order that there be a trial on issues of duty of care and negligence (that is liability), to be followed by a trial on issues of causation and quantum of loss.
The applicant relied on the affidavit of his solicitor, Mr Jackson, who gave evidence of the issues likely to arise on a trial of liability and the issues likely to arise in relation to an assessment of damages and the likely length of the respective trials. The respondent did not file any evidence in opposition to the application.
Background Facts
The applicant claims damages for personal injuries that he suffered when, according to the second statement of claim, he fell 10 metres from cliffs at Greenly Beach Rock Pools on Eyre Peninsula on 18 December 2013. The applicant had arrived in a car park of the rock pools with the purpose of swimming in the rock pools. He exited the motor vehicle and attempted to descend to the beach and rock pools via a sand dune. He claims that he was unaware that the sand dune ended in a 10 metre cliff.
The applicant alleges that the respondent owed a duty of care to all entrants to the rock pools to protect against injury and loss arising out of a wrongful act on the part of the respondent. The applicant further alleges that the respondent owed a duty of care to all members of the public to manage the area adjacent to the rock pools and having created and maintained the road and carpark and having erected fencing and barriers in other nearby areas, had a duty to erect fencing and barriers directing members of the public to the safest route. The applicant further alleges that the fall was caused by the negligent act of the respondent in (1) failing to close the sand dune (2) failing to cordon the sand dune by erecting guards and barriers (3) failing to warn the public with appropriate signage of the danger imposed to persons walking down the sand dune and (4) failing to sign post or mark the safe walking trail to the beach and the rock pools.
The applicant claims that he suffered severe loss and injury as a result of the accident including traumatic brain injury as well as injuries to the spleen, spine and pelvis. The applicant claims that he had post traumatic amnesia for four weeks following the accident. The evidence from Mr Jackson was that the applicant is totally incapacitated for employment and is reliant on the disability support pension and has no assets or source of income other than Centrelink benefits. The applicant resides with his mother and some of his siblings in rental accommodation in Port Lincoln. The applicant was 17 years of age at the time of the accident and is now 24 years of age.
The respondent denies it owed a duty of care as alleged. The respondent denies that it had a duty to install guards, barriers or fencing at the cliff face. The respondent denies it was required to install signage at the cliff face as the location of the incident was sparsely populated and not known as a track for tourists.
The respondent denies that it breached its duty of care, in the event that a duty of care is found to exist. The respondent also pleads that the risk was an obvious risk for the purpose of s 36 of the Civil Liability Act 1936 (CLA) and that the applicant was taken for the purposes of s 37 of the CLA (unless the applicant proves to the contrary that he was not actually aware of the risk) to have been aware of that risk. The respondent, therefore did not, pursuant to s 38 of CLA, owe a duty of care to the applicant to warn of an obvious risk.
The respondent further alleges that if it was negligent, then the applicant was guilty of contributing negligence in having failed to take care of his own safety and failed to observe an obvious risk.
In answer to the whole of the statement of claim the respondent relies upon s 244 of the Local Government Act 1999 and says that as the occupier of community land, it is only liable for injury, damage or loss that was a direct consequence of a wrongful act on its part.
Trial
In his affidavit, Mr Jackson estimated that the quantum trial alone would take 5-7 days. Senior Counsel for the applicant estimated that the liability trial would take about 2-3 days plus the time for a view. I would allow about one week for the liability trial.
Mr Jackson in his affidavit also deposed to the likely issues at a trial of liability and a trial in relation to the assessment of damages. These matters can be ascertained from the pleadings and are partly a matter of evidence and perhaps more a matter of submission. It is clear that there is a clear demarcation of issues in the liability trial and the trial relating to the assessment of damages.
I accept that the issues at the liability trial are those set out in paragraph [48] of Mr Jackson’s affidavit and are primarily mixed questions of fact and law. However, the evidence going to these issues is relatively narrow in compass. It is likely to be documentary in respect of issues such as whether the accident occurred at a location governed by the Local Council Community Management Plan. It is also likely to be documentary in relation to the role of the respondent as to the construction and maintenance of the road and car park. There will be evidence from some witnesses who were in the vicinity at the time of the accident as to issues relating to the standard of care and causation, such as whether the alleged failure of the respondent to erect barriers or warning signs or take some other action to prevent the respondent from falling over the cliff was a cause of the fall by the applicant. The same evidence will also be relevant in relation to issues such as whether the risk was an obvious risk and whether the applicant was guilty of contributory negligence.
I accept the evidence of the applicant that, apart possibly from the applicant himself (who it is claimed had no memory of the accident), there will only be two witnesses, the plaintiff’s older brother and his partner, who will give evidence on both liability and quantum. I accept also that the evidence of these witnesses relating to liability and quantum will be separate and distinct. That, in my opinion, is self-evident. There is no expert evidence that will be common to both trials.
The issues relating to quantum are quite distinct and involve the usual issues such as the nature and extent of the applicant’s injuries, the extent of the incapacity and quantification of non-economic and economic loss, any requirement for further care and incurring of further expenses. This evidence will be a combination of lay evidence, including from the applicant and expert evidence from medical specialists.
Legal Principles
The principles governing the issues of separate trials are well settled. The starting point and general rule, as held by Anderson J in SA Water Corporation v United Water International Pty Ltd,[1] is that all issues should generally be dealt within a single trial.[2]
[1] [2009] SASC 383
[2] Ibid at [46]; O’Connor v Suman [2015] NSWSC 1812 at [10]
The trial process should not be unduly fragmented. In Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC[3] White J (with whom Kelly J agreed) held:
In my opinion, the principles stated in the authorities concerning r 75.02 of the Supreme Court Rules 1987 are equally applicable to the exercise of the Court’s power under r 211 of the 2006 Rules. Those principles are well settled. I refer to the decisions in FAI General Insurance Co Ltd (in liq) v Sherry & Ors, [4] Rivers v Rivers, [5] Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2)[6] and in City of Onkaparinga v Hassell Pty Ltd and Ors.[7]
The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently resulting in prolongation of the proceedings and the incurring of additional costs.
[3] [2008] SASC 369 at [92] to [93]. Approved in Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54 at [14] and [15]
[4] [2002] SASC 431; (2002) 225 LSJS 141.
[5] [2002] SASC 197; (2002) 220 LSJS 74.
[6] [2006] SASC 33.
[7] [2007] SASC 163.
The High Court has warned against the dangers of ordering separate trials and that potential savings of costs and avoiding of delay by ordering separate trial may prove illusory. In Tepko Pty Ltd v The Water Board,[8] Kirby and Callinan JJ held:
The attractions of trials of issues rather than of cases in their totality are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties, interests.
Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.[9]
[8] [2001] HCA 19 at [168] to [170]; (2001) CLR 1.
[9] Cited widely including in Ferraretto and Snappy Apple Pty Ltd v Cowell Clarke [2012] SASC 224 at [21].
In Perre v Apand Pty Ltd,[10] Callinan J held:
Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be.
[10] [1999] HCA 36; (1999) 198 CLR 180 at [436].

Notwithstanding these comments, the power of the court to order separate trials or separate determination of separate issues is a discretionary power.[11] The exercise of the discretionary power must be exercised judicially but is otherwise not fettered.[12]
[11] SA Water Corporation v United Water International Pty Ltd [2009] SASC 383 at [46]; Rivers v Rivers [2002] SASC 19; Duke Group Limited (in liq) v Alamein Investments Ltd (in liq) (No 2) [2006] SASC 33; Idoport Pty Ltd v National Australia Bank Limited [2000] NSWSC 1215 at [7].
[12] Idoport (above) at [7].
In exercising my discretion to order separate trials under UCR 151.1, regard should be had to the objects of the Rules under UCR 5.1, namely to facilitate just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings.[13] Rule 12.2(1) further provides the court may, in making orders, have regard to the objects of the Rules and, pursuant to UCR 12.2 (2) may have regard to the matters that are set out in UCR 12.2(2).
[13] O’Connor v Suman [2015] NSWSC 1812 at [10]
Therefore, in exercising my discretion, I must give effect to the overriding purpose of the rules, namely to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in the proceedings.
As I have said, the Court begins with the proposition that it is ordinarily appropriate that all of the issues be determined at the one time. Therefore, it is for the party seeking a departure from the usual rule, in this case the applicant, to show why it is appropriate that there be a departure from the rule and that it is desirable for separate trails to be ordered.[14] The utility, economy and fairness to the parties of ordering separate trials must be beyond dispute.[15]
[14] Anabella Aguis (by her tutor Gail Margaret Chalmers) v Southern Sydney Area Health Service [2003] NSWSC 623 at [15] citing Idoport (above) at [7]; Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [35];.
[15] Tepko (above) at 55; Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [35].
In Idoport Pty Ltd v National Australia Bank,[16] Einstein J identified some of the instances where separate determination may be appropriate. These principles have been restated a number of times and approved in appellate decisions.[17] Einstein J held that separate determination may be appropriate:[18]
a.where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversy or of substantially narrowing the field of the litigious controversy;
b.where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation;
c.where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of the witnesses.
(citations omitted)
[16] [2000] NSWSC 1215 at [7]
[17] See Wells v Council of the City of Orange [2016] NSWSC 589 at [12]; Agius (above) at [15].
[18] Idoport (above) at [7] (4)
Einstein J also provided examples where separate determination of an issue will not be appropriate including where:
a.there are intertwined issues of facts or law between the separated question and the other questions such that a determination of the separate question will not have a substantial effect upon the width of the field of litigious controversy or the prospect of settlement on the balance of the litigation;
b.where there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, thus precluding the same judicial officer from again dealing with the matters going to the credit of the common witnesses;
c.there is a possibility that resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings.
(citations omitted)
Einstein J went on to note (in accordance with the statements in Tepko (referred to above) that experience of courts suggests that separation of proceedings often does not result in the quicker and cheaper resolution of the proceedings but often has the reverse effect and causes delay and greater expense. Therefore, (again consistently with Tepko), before an issue is to be separately determined it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.[19]
[19] Idoport (above) at [7] (6) above cited in Agius at [15].
Determination
I have approached the matter in accordance with the principles set out above. In particular, I have had regard to the general rule that all issues should be disposed of at the one time and that the onus is on the applicant to show that there is good reason for a departure from that general rule. I consider that the applicant has satisfied that onus and shown good reason why the general rule should not apply in the present case and that there should be separate trials of liability and quantum. I am satisfied that the utility, economy and fairness to the parties of ordering separate trials is beyond question.
I consider that there will be significant saving of time and expense in hearing only liability in the first instance. The liability trial is straightforward and would, in all likelihood, take about a week to be heard. This estimate includes taking a view. An estimate of the quantum trial was five to seven days. Therefore, if only the liability trial is held, there is a significant saving of costs and expense to the parties. Only a liability trial will be held if the applicant is not successful on this issue or if the applicant is successful, the parties are able to resolve issues of quantum before that trial is held.
If the issue of liability is decided against the applicant, then, subject to any appeal, there would be a substantial saving in costs. There would be no need to have a hearing on damages. There would be the advantage for both parties in costs in not having to call a large number of witnesses including expert witnesses and medical practitioners as to the injuries suffered by the applicant.[20] I note, in this regard, that the respondent has pleaded statutory defences, which, if successful, would bring the proceedings to an end.[21]
[20] Arnott v O’Leary [1998] TASSC 15.
[21] Wells v Council of the City of Orange [2016] NSWSC 589 at [15].
I also consider this is a case where a resolution of the liability issue, subject to appeal, would assist the parties to resolve quantum issues themselves and thus avoid litigation on that topic.[22] A verdict for the applicant, on liability would promote the prospects of settlement or mediation and achieving a just, cheap and quick resolution.[23] This is particularly so given that the respondent has raised the issue of contributory negligence on the part of the applicant and some defences, which, if successful, would operate as a complete defence to the claim of the applicant. It is usually the issue of liability that stands in the way of resolution of the proceedings.[24] That was the approach taken by Hoeben CJ at CL in Wells v Council of the City of Orange..[25] In that case, Hoeben CJ at CL ultimately concluded:[26]
The evidence which goes to the issue of liability is of relatively confined nature and it may well be that the issues will be further confined by the agreement of the parties. By having liability and contributory negligence determined separately, it is more likely that the whole of the proceedings will be capable of being finally disposed of.
[22] Thomas v Oakley [2003] NSWSC 1033 at [19] (4(b)).
[23] McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400 at [29].
[24] Miller v Lithgow Council [2013] NSWSC 427 at [36]
[25] Wells v Council of the City of Orange [2016] NSWSC 589 at [15]
[26] Ibid at [18]
I consider that finding is applicable in the present case. If liability is determined quickly, then, it is more likely that the whole proceedings will be efficiently and cheaply disposed of. That advances the interest of justice.
Unlike in Perre v Apand, this is a case where, in the event that the respondent is found liable, there clearly has been compensable damage suffered by the applicant.
I do not consider that there would be any unfairness to the respondent if separate trials are held. This is not a case where there is a significant risk of intermingling or overlapping of evidence on liability and quantum. Any findings on liability are unlikely to be contentious insofar as the quantum trial is concerned.[27] This is particularly so given that the applicant says that he does not remember the incident and suffers from amnesia. A similar conclusion was reached in O’Connor v Suman,[28] Wells v Council of the City of Orange[29] and Johnson v Trustees of the Roman Catholic Church.[30] I accept, as senior counsel for the respondent submitted, that the respondent might challenge that fact, but that does not alter my conclusion that, on the present evidence, there is not a significant risk that there will be issues of credit or findings made in the liability trial that will impact on the quantum trial. Mr Jackson gave evidence that only two witnesses were likely to give evidence both on liability and quantum (being the applicant’s brother and his partner). It is unlikely that their evidence would be highly contentious in relation to either liability or quantum. I do not consider that any findings made in relation to their credit on a liability trial would impact on the quantum trial.
[27] O’Connor v Suman [2015] NSWSC 1812 at [10], [13]
[28] [2015] NSWSC 1812 at [12].
[29] [2016] NSWSC 589 at[14].
[30] [2009] NSWSC 309.
I also do not consider this is a case where there would be unfairness to the respondent because of wasted preparation. In this case, because of the clear demarcation of issues and facts relating to liability and quantum, this wastage should not occur.[31] The preparation of two trials, if required, is likely to be of quite distinct matters,
[31] Thomas v Oakley [2003] NSWSC 1033 at [21].
I am conscious that there may be an appeal from any decision on liability and that may create a multiplicity of proceedings and interruption to the court process and fragmentation of the proceedings. However, given the clear demarcation of liability and quantum this case, I do not consider this to be a decisive consideration. The liability trial can be set for hearing in a relatively short time and the trial heard. A full trial of liability and quantum will inevitably not be heard for some time, considerably later than any trial for liability alone. There are two reasons for this conclusion. First, it is likely that it will take considerably longer before the quantum trial is ready for hearing, given the need for updated medical reports and further examination by medical specialists. On the other hand, apart from some issues relating to the discovery of the respondent, the trial on liability can be set down. Secondly, a trial of one week can be normally accommodated in the Court’s timetable within a much shorter period than a trial of two to three weeks.
The respondent submitted that I should take into account the inconvenience of the parties and in particular the need for numerous witnesses having to attend court on two occasions. I do not accept that this is the case. The respondent has not adduced any evidence that any of its witnesses would be required to give evidence on both occasions and nor do I consider it likely. As I have said previously, only the applicant and two witnesses are likely to give evidence on both liability and quantum. It is not for the respondent to rely upon that inconvenience as a reason for refusing the application. There will be some inconvenience to the respondent in having to attend two trials, but I consider that to be relatively minor as, given the clear demarcation of issues, there would be no significant saving of time by hearing only one trial, both as to liability and quantum.
The question of witness being critical to both lability and quantum has been held to be a significant factor in Pioneer Park Pty Ltd (in liq) v ANZ Banking Group[32] approved in Admiral I Pty Ltd v Leighton Contractors Pty Ltd[33] and referred to in McDonnell v Northern Sydney Central Coast Area Health Service.[34] In that latter case, the court held that:
[as] far and away the most significant factor the fact that the evidence of a plaintiff was likely to be critical both as to liability and as to damages/quantum in a number of ways. Additionally, expert evidence which both parties anticipated putting on in relation to liability was also material to any assessment of loss or damage.
[32] [2005] NSWSC 832.
[33] [2005] NSWSC 1105.
[34] [2009] NSWSC 1364 at [9].
I have found in this case that there is a clear demarcation of issues and the evidence relating to liability and quantum.
I consider that it is in the interests of justice, the elimination of delay and the proportionality of costs that there be a separate trial of liability and quantum.
Conclusion
For the reasons that I have expressed, I grant the applicant’s application and order that there be separate trials of liability and quantum.
I will hear the parties as to the precise form of the orders and costs.