HIS HONOUR: The plaintiff was born at Westmead Hospital in January 2009. Responsibility for her welfare was immediately assumed by the Director-General of Community Services who shortly thereafter placed her into foster care. The plaintiff alleges that her foster placement by the defendant was negligent in that it knew or ought to have known that allegations of domestic violence and drug use, and allegations of lack of supervision of other children in their care, had been made about those with whom she was placed. In the events that occurred, the plaintiff was discovered on about 26 June 2009 to have been severely injured, apparently assaulted, when she was admitted to Lismore Base Hospital suffering from swelling of the brain and with healing fractures to her limbs. The plaintiff alleges that she was violently shaken or otherwise similarly assaulted by her foster carers. The plaintiff contends, among other things, that the defendant did not undertake an appropriate assessment of those carers or of their capacity to look after her and that it did not diligently monitor or supervise her placement.
The defendant has admitted that it breached its duty of care. However, certain issues of liability, including how the plaintiff's injuries were inflicted, whether they were legally caused by any assault that resulted from the breach of duty, and whether they have been medically caused by the assault upon her, remain in dispute.
By her notice of motion filed on 24 August 2016 the plaintiff seeks an order that the remaining liability issues be tried separately pursuant to UCPR 28.2. The defendant does not oppose that order in the event that I am otherwise inclined to make it. The plaintiff also seeks an order by summons filed on 7 March 2016 for the making of an interim payment of $746,092 pursuant to s 82 of the Civil Procedure Act 2005. That order is also not opposed by the defendant. Finally the plaintiff seeks an order that the defendant pay the costs of these applications. That order is oppoed.
UCPR 28.2 is as follows:
"28.2 Order for decision
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings."
In support of the application, the plaintiff relied upon the affidavit of Ben de Quetteville Robin sworn 19 August 2016. That affidavit was read without objection. Mr Robin was not cross-examined.
The general practice is that all issues should be tried together. Caution about departing from this general practice is usually informed by concerns that evidence in the proceedings may be relevant to more than one issue. There is therefore said to be a risk that the formulation of discrete issues for separate determination may fail to anticipate the full range of potentially relevant evidence.
No such concerns appear to be evident in this case. The plaintiff is very young. Her medical condition has not stabilised and it is unlikely that it will do so for some considerable time. Her damages claim is presently incapable of accurate or even general assessment, and will undoubtedly have to await her adolescence at least, if not in fact much later. The plaintiff will not be a witness in her case on liability.
Issues relating to liability and damages are clearly distinct and desirably assessed separately: Thomas v Oakley [2003] NSWSC 1033; Nettleton v Rondeau [2013] NSWSC 1321. In my opinion this is such a case.
Section 82 of the Civil Procedure Act 2005 provides relevantly as follows:
"82 Court may order interim payments
(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.
(2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.
(3) The court may not make such an order unless:
(a) the defendant has admitted liability, or
(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or
(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.
(4) The court may not make such an order if the defendant satisfies the court that:
(a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and
(b) the defendant is not a public authority, and
(c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made.
(5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff.
(6) …"
As I have already indicated, the defendant does not oppose the making of the order for interim payment. I am nevertheless required to be satisfied of the existence of at least one of the factors referred to in s 82(3) of the Act. Although the defendant has admitted breach of duty, that does not relevantly qualify in this case as an admission of liability for all purposes. Having regard to the material before me, however, I am satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant. In general exposition of that opinion, it seems highly likely, to a point approaching certainty, that the plaintiff sustained injuries at the hands of the carers into whose custody she was placed by the defendant when it knew or ought to have known that they were, or one of them was, entirely unsuited to the role, and that there was a very substantial and foreseeable risk that the plaintiff may be harmed. Furthermore, the so-called issues of legal and medical causation do not appear to me, upon the material to which my attention has been drawn, to present any insurmountable difficulties for the plaintiff. It is preferable that I refrain from expressing my opinion about that in any more detail.
The plaintiff asks that the interim payment amount be disbursed as follows:
1. The Mater Hospital, Brisbane: $22,092.
2. The plaintiff's tutor: $143,197.
3. The Queensland Public Trustee on behalf of the plaintiff: $580,803.
Senior counsel for the plaintiff urged upon me, in response to my concerns about the power to order that the plaintiff's tutor be paid a significant portion of the interim payment amount, that I was authorised or empowered to do so by the terms of the Civil Procedure Act. Section 77 is in these terms:
"77 Payment of money recovered on behalf of person under legal incapacity
(1) This section applies to money recovered in any proceedings on behalf of any of the following persons:
(a) a person under legal incapacity,
(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,
(c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs,
pursuant to a compromise, settlement, judgment or order in any proceedings.
(2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.
(3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person's estate.
(4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person's estate."
The plaintiff contended that the words "such person as the court may direct" in s 77(3) extended to, or were apt to include, in this case, the plaintiff's tutor. I do not agree. Section 77 falls under Division 4 of Part 6 of the Act and deals specifically with "Persons Under Legal Incapacity". The plaintiff is such a person by reason of her age and may well hypothetically qualify on other grounds. The Division is concerned with the payment and distribution of monies paid and to be received upon trust for legally incapacitated persons. It is concerned with money paid and received for their benefit.
In the present case, it has been submitted that the plaintiff's tutor, who is also her grandmother, has provided significant gratuitous care and services to the plaintiff for which it is appropriate that she be recompensed out of monies that the plaintiff is likely to recover as damages in the proceedings and, for present purposes, out of the interim payment that is to be made. I hasten to observe that I have no doubt that the plaintiff's tutor is probably a deserving recipient of such a payment. However, I am not convinced that s 77(3) authorises the payment of what amounts to part of the plaintiff's damages to the plaintiff's tutor for her own use and benefit. It has not been suggested that the money is to be retained by the tutor for the maintenance, education or otherwise for the benefit of the plaintiff. It may well be that the Queensland Public Trustee, in the exercise of its discretion, chooses to make a payment to the plaintiff's tutor in the amount that is sought. So much is unexceptional. In my opinion, it would be exceptional for me to do so.
There is a second reason why I feel disinclined to authorise the payment. There is no evidence of any kind before me concerning the details of the services provided by the tutor to the plaintiff to which the sum is said to relate. I have no evidence setting out the hours or the period over or during which the services were provided or the nature of those services. Once again I hasten to observe that I have no present doubt that the plaintiff's tutor could provide this information without difficulty or contest, but no-one has yet done so and I am, I trust understandably, disinclined to act in an evidentiary vacuum. I confidently expect that the evidence supporting an explaining the calculation of the amount in question will be furnished to the Queensland Public Trustee in due course.
Finally, the plaintiff seeks the costs of this application. Somewhat optimistically, it seems to me, the plaintiff seeks a lump sum costs order for the plaintiff's costs "of and incidental to this application" pursuant to s 98(4) of the Civil Procedure Act, in the amount of $468,750. There are a series of difficulties with that application.
First, no proper notice of the claim was given to the defendant. The order for costs sought in the notice of motion is in commonly expressed anodyne terms described as the costs of the application.
Secondly, there is no supporting material indicating what the plaintiff's costs of the motion might be. I have some difficulty with the notion that the plaintiff's costs of $468,750 are in fact her costs of the motion, and they seem more likely to be her costs of the proceedings so far. Be that as it may, no separate analysis or calculation has been carried out to establish or quantify the relevant costs, and certainly none has found its way into evidence.
Thirdly, there is an issue about the making of any costs order against the defendant at all. The defendant has not opposed the relief sought either for the making of the interim payment or for the separate hearing on liability. The defendant has not maintained that s 82(3) operates in any way as a bar to the making of the order. Indeed, the defendant has tacitly and generously acknowledged that it will not seek repayment of the amount of the interim payment in the event that it is successful in defending the proceedings. In these circumstances the defendant submits that the costs of this application should be the costs in the proceedings.
The plaintiff submits that costs should follow the event. I was provided with a detailed analysis by senior counsel for the plaintiff of the ways in which the defendant, according to the plaintiff, has acted in an unhelpful and obstructive manner in its defence of the proceedings and why the costs should be paid by the defendant for that reason in particular. Those submissions appeared to me, however, to be misdirected to the questions of whether or not the defendant should be required ultimately to pay costs of the proceedings generally, and if so whether to pay them upon an indemnity basis to some extent, rather than being directed to the limited costs of this application.
It seems in my view to follow that the costs of this application should be the costs in the proceedings. The plaintiff's application was not contested. The defendant has cooperated, as far as it could, in supporting both the interim payment application and in not opposing the order for a separate hearing of the liability issue. The plaintiff's ultimate success in the proceedings will see her reimbursed for the reasonable costs of and incidental to this motion. Any different costs order will be a matter for the trial judge in due course.
[2]
Orders
In the circumstances I consider that the following orders should be made:
1. Order pursuant to UCPR 28.2 that there be a separate hearing on the issue of liability.
2. Subject to order (3), order the defendant to make one payment to the plaintiff of part of the damages sought to be recovered in the proceedings in the amount of $746,092.
3. Order in accordance with s 77(2) of the Civil Procedure Act 2005 that the sum referred to in order (2) above be paid directly to the Queensland Public Trustee to be held upon trust for the plaintiff to be applied for her maintenance and education, or otherwise for her benefit.
4. Direct the parties within 14 days to bring in short minutes of order providing for the further conduct of the proceedings, including but not limited to the service of evidence upon which each proposes to rely on the issue of liability.
5. Grant liberty to apply to me on 48 hours' notice by arrangement with my Associate.
6. Order that the costs of and incidental to the plaintiff's summons filed on 7 March 2016 and the plaintiff's notice of motion filed on 24 August 2016 be the costs in the proceedings.
[3]
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Decision last updated: 05 September 2016