Wells v Council of the City of Orange

HIS HONOUR:

The plaintiff’s case is that while riding a 250cc Suzuki motorcycle in a northerly direction he entered Jilba Street from a pedestrian bridge across the creek. Just before the intersection with Mirral Way, the motorcycle struck one of the barriers placed across Jilba Street. The plaintiff was thrown some distance and suffered very serious injuries. The plaintiff’s medical condition has not stabilised and the treatment for those injuries is continuing.

The plaintiff alleges that the defendant was negligent in that it should have provided more illumination and more warnings to alert road users such as him of the presence of the barrier at the intersection.

The defendant denies liability and challenges the assertion that the illumination and warnings which were present were not adequate. The Council also relies upon ss 43A (Special Statutory Power) and 47 (Intoxication) of the Civil Liability Act 2002 (NSW) (CLA).

There appears to be no dispute that at the time of the accident:

The plaintiff was born in January 1977 and was aged 32 at the time of the accident. He suffered a number of injuries, but the most serious of those was a head injury. He has no recollection of what occurred for four hours before the accident and post-traumatic amnesia extending to 14 December 2009. His injuries include:

On his admission to hospital, he underwent a right fronto-temporal craniotomy with the insertion of a plate in his skull. He was initially treated at the Nepean Hospital and then at the Orange Base Hospital. He was discharged from the Orange Base Hospital on 15 June 2010. He has been left with impairment of short term memory. There is disfigurement with obvious craniotomy defects and accompanying scars. His balance has been affected and he walks with a limp. He wears a splint at the knee which is painful. The knee swells with activity and prevents him from squatting. His left shoulder is stiff and sore.

In July 2014 he was diagnosed with an infected mesh cranioplasty which required the removal of the metal plate. He was due to undergo a repeat cranioplasty with replacement of the plate in March of this year but due to infection, that procedure could not be carried out. This means that at the present time his skull remains “open” until the repeat cranioplasty can be carried out. Self-evidently his condition is not stable and he requires further treatment.

The defendant by Motion filed 3 May 2016 seeks the following orders:

The application is consented to by the plaintiff. It has been agreed between the parties that the costs of the defendant’s application will be costs in the cause. Accordingly, the only issue before the Court is whether despite the consent of the parties, is it appropriate for liability to be decided as a separate issue.

The relevant principles are not in doubt. The starting point for such a motion is that ordinarily all issues in proceedings should be disposed of at the same time. In claims involving tort, care needs to be taken in deciding whether or not to conduct a separate hearing as to liability because sometimes separate trials may be produce delay, extra expense, appeals and uncertainty of outcome. It is also undesirable to have separate trials unless the parties accept that compensable damage has been sustained by the plaintiff. There is, of course, no issue of that kind on the facts of this case.

The following principles set out by Einstein J in Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [16] [2000] NSWSC 1250 have been restated and approved in a number of appellate decisions:

I have concluded that in this case all relevant indicia point towards the making of the order for a separate hearing of liability as sought by the defendant.

Over six years have now passed since the accident occurred. It is inevitable that with further delay, the recollections of witnesses will be further degraded. Such further delay would be inevitable if a single trial were heard given the unstable nature of the plaintiff’s medical condition. Moreover, because the plaintiff has no recollection of the accident, there will be no overlap of evidence as to his credit when considering liability as distinct from damages. This is also the case with the lay witnesses whose evidence is almost all directed to liability. There is no overlap in the expert evidence between liability and quantum.

If the defence makes out its statutory defences, in particular s 43A CLA, this would bring the proceedings to an end. It would seem, at least on a prima facie basis, that s 43A CLA is in play in this matter. Even if the defendant did not succeed on liability, there is a high likelihood of a finding of contributory negligence against the plaintiff. If such a finding is made, there is also a high likelihood, given the relatively uncontroversial nature of the medical evidence, that a settlement between the parties could be achieved. This would considerably shorten the matter and save court time.

If the matter were to proceed as a trial of both liability and quantum, the preparation of the damages part of the case by the defendant would involve significant additional expense and significant additional delay. That, of course, assumes that some stability in the plaintiff’s medical condition can be achieved. It would also involve additional expense on the part of the plaintiff.

As already indicated, the factual and legal questions relevant to liability are quite separate from those relating to damages. The liability issues will be restricted to questions of lighting and traffic engineering and would require no more than a 5 day hearing even if all of the lay persons who have provided statements are required to give evidence. The Court was told that subject to toxicology/pharmacology expert evidence being obtained, the parties are in a position to proceed with the hearing of the liability issues. The Court was advised that even on the most optimistic view, if a hearing were to take place of liability and damages, the matter would not be ready until mid to late 2017 and the amount of court time occupied would be at least doubled.

In conclusion, the issue of liability is the one which most divides the parties and prevents any useful discussion leading to a possible resolution of the proceedings. The evidence which goes to the issue of liability is of a 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.

For the above reasons, I make the following orders: