Wereta v The Nominal Defendant

[2000] NSWSC 234

CITATION:	Wereta v The Nominal Defendant [2000] NSWSC 234
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20922/97
HEARING DATE(S):	23 March 2000
JUDGMENT DATE:	29 March 2000
PARTIES :	Douglas Frederick Wereta by his tutor Joyce Wereta (Plaintiff) The Nominal Defendant (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :

Mr J McIntyre SC with
Mr F Tuscano
(Plaintiff)

Mr J D Hislop QC
(Defendant)

SOLICITORS:

Stacks - The Law Firm
with Goudkamp Mahony
(Plaintiff)

Ms J Snell
Grahame Goldberg Partners
(Defendant)

LEGISLATION CITED:

Supreme Court Rules - Part 31 r 2

CASES CITED:

Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93
Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] 1 Ch 88; [1961] 1 Ch 375
Yeoman Credit Ltd v Latter [1961] 1 WLR 828, 835
Everett v Ribband [1952] 1 KB 122
CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606

DECISION:

See para 17

8

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 29 MARCH 2000

20922/97 - DOUGLAS FREDERICK WERETA by his tutor
JOYCE WERETA v
THE NOMINAL DEFENDANT

JUDGMENT (Separate trial on liability)

1   MASTER: By notice of motion filed 26 October 1999 the defendant seeks leave to file and serve this notice of motion after the compliance date and that the hearing of liability and quantum be severed and the issue of liability be listed for hearing in Sydney and placed in the holding list to await allocation of a hearing date. The defendant relied on two affidavits of Josephine Mary Snell sworn 26 October 1999 and 25 January 2000. The plaintiff relied on the affidavit of Ian Kenneth Chipchase sworn 28 October 1999 and 10 December 1999.

2   On 16 March 1980 the plaintiff alleges that he suffered injuries whilst travelling as a passenger in a motor vehicle which left the highway about 15 kilometres from Wilcannia New South Wales. It is alleged that the driver of the motor vehicle swerved to avoid a kangaroo. The plaintiff suffered serious injuries including significant brain injury. After the accident the plaintiff was initially taken to Wilcannia hospital where he was a patient for a short time until his transfer on the same day to Broken Hill hospital from where he was again transferred on the same day to Royal Adelaide hospital. The plaintiff remained in the Royal Adelaide hospital from between 16 March 1980 and 15 August 1980. He had subsequent admissions to hospital between 20 November 1980 and 12 May 1981.

3   The plaintiff was born on 3 February 1946 and is now 54 years of age. He resides in Napier, New Zealand and has lived in that area for the whole of his life apart from the periods, including the time of the accident, when he resided in Australia for the purpose of carrying out his occupation as a shearer. In late 1981 the plaintiff returned to New Zealand. He had been cared for in Adelaide apart from his time in hospital by his de facto partner Kerry Humphreys, but this relationship broke down and the plaintiff return to New Zealand to reside with his aunt in Napier. This arrangement continued until 1995 when the plaintiff’s aunt died. The plaintiff continued to live in his aunt’s house and was cared for by his cousin Tracey. He then spent a few months with his brother Jeffray and finally moved in with his mother Joyce Wereta in 1996. Since 1996 the plaintiff has been cared for by his mother and brother and his wife Janet.

4   The plaintiff’s tutor says that the plaintiff would have great difficulty travelling to Australia. He would need to travel with at least one attendant and would quite likely become confused and disorientated. The plaintiff has not travelled other than short distances within New Zealand since returning home in 1981. The plaintiff’s counsel submitted that the plaintiff's evidence would be extremely difficult to present and although he is able to give some meaningful evidence for a short period of time he then requires a rest, and realistically it would probably take 3 to 4 hours to present his evidence. The plaintiff’s counsel submitted that an approximate total of 47 hours of evidence would be needed for the plaintiff’s witnesses to give evidence. Enquiries have been made of Integrated Vision Pty Limited, a major supplier of video links, as to the possibility of taking some or all of the evidence located in New Zealand by video link. A direct video link to Napier is not possible and the link would have to be made to Gisborne or Rotorua. Rotorua is about 3 hours from Napier and Gisborne is further away again.

5   Since the plaintiff’s return to New Zealand, he had been treated at Napier hospital, Wellington hospital, Hastings hospital and Palmerston North hospital. The plaintiff has had treatment from a number of specialists for a wide range of medical complications and specific injuries.

6 The defendant seeks that the issue of liability be determined separately. Part 31 r 2(a) of the Supreme Court Rules (SCR) provides:

“2. The Court may make orders for -
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.”

7   In Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93, Lord Denning (with whom Diplock and Sachs LJJ agreed at p 98) overruled the decisions in Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] 1 Ch 88; [1961] 1 Ch 375, 396); and Yeoman Credit Ltd v Latter [1961] 1 WLR 828, 835 they adopted the rule stated by Romer LJ in Everett v Ribbands [1952] 1 KB 112. This rule is:

‘Where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings, or very shortly after the close of pleadings.’

8   Lord Denning also stated that in many cases the facts and law are so mixed up that it is very undesirable to have a preliminary issue and that he always liked to know the facts before deciding the law.

9   In CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 606. Kirby P in relation to preliminary points stated:

“Care must also be taken in utilising the procedures now available for the determination of preliminary points to avoid such determination in cases which are not ripe for this treatment. A matter is “ripe” for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.
…..
It is my view that the court should be facultative in the matter of separate decisions on questions arising in the course of the trial. The rules now provide for it. Where the exceptional circumstances exist that make it sensible to do so (and no reason exists to suggest the contrary) the procedure can be beneficial. It can contribute not only to the prompt disposal of crucial issues in the litigation (sometimes resulting in disposal of the whole action and even judgment for a party). It can also contribute to the saving of time and costs where an authoritative decision narrows the issues for trial substantially, excluding the necessity to explore factual matters which, on one determination of the preliminary question, are entirely unnecessary.”

Kirby P also says that the resolution of a central issue may assist the parties involved in the litigation to reach a settlement.

10   The defendant submitted that a determination of liability, firstly may result in a final determination of the matter obviating the need for a hearing on quantum; secondly, it would save court time and expense for the parties; thirdly, if liability is determined in the plaintiff's favour and contributory negligence is apportioned, the issue of damages may be resolved between the parties. The plaintiff’s counsel submitted that firstly, although the plaintiff will have to give evidence, doctors may also be required to give evidence and there will be an overlap of issues and secondly, there should not be a separate determination of the issues. Both parties agree that the matter is almost ready for trial on the issues of liability and quantum.

11   On 2 July 1998 the defendant filed a defence to the amended statement of claim. It raises three issues namely voluntary assumption of risk and contributory negligence in relation to travelling as a passenger in vehicle whose driver was effected by the consumption of alcohol and/or fatigue, who was an unlicensed driver and the plaintiff’s failure to wear a seat belt; secondly, the statute of limitations; and thirdly, the circuity of the action. The defendant submitted that any of these defences (except contributory negligence) if successful means there will be a final determination of the matter.

12   Because the accident occurred in 1980, if it is found that the plaintiff voluntarily assumed the risk of driving with an intoxicated driver under the relevant legislation at that time this amounted to an absolute defence. There would be a verdict for the defendant. The defendant has also submitted that it may succeed on liability because of the plaintiff’s difficulties in establishing that the driver swerved to avoid a kangaroo. However, the driver Lindsay Norman Willding was charged and convicted of culpable driving in relation to this accident. The third issue that the defence raised is that the vehicle was unregistered and uninsured. According to the defendant, the plaintiff was the owner of the vehicle and pursuant to s 32(1) if the plaintiff obtains a verdict against the defendant the defendant is entitled to recover back the judgment moneys plus costs and expenses from the plaintiff (the circuity of action defence). The defendant has not put on any evidence that suggests the plaintiff was the owner of the vehicle. The plaintiff disputes this allegation and will need to give evidence on this issue.

13 The defendant has pleaded that the action is statute barred. The plaintiff who suffers brain damage submitted that he is not statute barred pursuant to s 52 of the Limitation Act 1969 (NSW). In order to determine this issue the court will need to hear evidence from the plaintiff and doctors. The defendant proposes that the limitation defence be dealt with in the quantum hearing. This means that if the plaintiff is successful on liability he may go through a full quantum hearing and ultimately fail on the limitation issue and be unsuccessful in recovering damages.

14   The hearing on liability is estimated to take two days. The plaintiff’s evidence could be taken, with some difficulties, via video link. The full hearing is estimated to take two weeks and if the hearing is to be in New Zealand, the defendant estimates it will cost between $200,000 and $250,000. The plaintiff currently has a motion on foot seeking to have evidence taken on commission in New Zealand.

15   In relation to the submission that if there is a determination on liability and an apportionment for contributory negligence, the parties may then be in a position to resolve the matter, it is my view that the parties can attempt to settle this matter by making offers which make allowances for contributory negligence. Further as the medical and costing reports have already been served the parties could attempt to resolve the amounts to be allowed for specific heads of damages and leave liability in dispute. This would shorten the trial. The plaintiff has made an offer of settlement but the defendant has not responded.

16   While at first glance, the separate determination of the issues of liability appears attractive, upon reflection, for the court to assess the reliability of the plaintiff’s evidence, he would need to be observed in the witness box over a period of time. The plaintiff may have a recollection of the events leading up to the accident and whether he was the owner of the vehicle. It is preferable that the limitation matter be dealt with as a liability issue. this would involve medical experts giving evidence. They would be called again at the quantum hearing. The matter is nearly ready for trial. It is my view that after all these factors are considered, justice is best served if there is only one trial whether it be in New Zealand or Sydney. Had there been a substantial delay before quantum was ready for trial, I may have decided otherwise. Accordingly, I dismiss the motion. Costs are discretionary. Costs should follow the events. The defendant is to pay the plaintiff's costs.

17   I make the following orders:

(1) The defendant’s notice of motion filed 26 October 1999 is dismissed.

(2) The matter is referred to a final conference. The registry is to notify the parties of the date.

(3) The defendant is to pay the plaintiff’s costs.
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Last Modified: 09/25/2000