Cook by her tutor Kristy Stewart v Riding for the Disabled Association

Background facts

1. Breanne was born with a microdeletion syndrome causing severe intellectual disability and global developmental delay. She also has spastic diplegia.
2. In her affidavit filed in support of this application Breanne's mother stated that Breanne does not speak words, using only sounds to communicate. Breanne can follow some simple instructions and can indicate simple things such as hunger by gestures.
3. Prior to her fall Breanne could walk independently. Since her fall she has been unable to mobilize. She indicates she is often in pain and distress.
4. Breanne attended Hunter River Community School in Metford, New South Wales. In May 2019 Breanne was invited via her school to attend a horse riding for the disabled program run by the first defendant.
5. Breanne's mother was required to pay a fee to participate which she paid on 28 May 2023. The program was conducted on a school day, with the school providing a bus service to convey Breanne to the riding facility at Raymond Terrace. The school also provided staff to accompany the children and supervise them whilst participating. Breanne had participated a number of times before her fall.
6. On 12 September 2019 Breanne was placed on the saddle of a horse and led by agents or servants of the defendants, but with only one support person walking on one side of her. Apparently this was different to earlier occasions which involved (as shown in photographs to be tendered at the trial), a support person on each side of the horse.
7. Breanne was unable to hold on securely. She had been allowed to carry a toy and a drink bottle. She lost balance and fell, sustaining a serious injury to her right leg and hip. There is debate between medical practitioners as to how to best treat this injury given the initial surgery involved internal fixation and there is now complication with the screws including avascular necrosis and collapse of the right femoral head.
8. The treating orthopaedic surgeon, Dr Solomon, told Breanne's mother that the decision regarding surgery needs to be postponed until Breanne is fully grown, at which time a hip replacement is a viable option. Earlier discussed surgical options would result in Breanne being wheelchair-bound permanently, so the correct surgical decision is obviously very important and must not be rushed.

Principles

1. Rule 29.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides for the usual situation, that all issues should be determined at the one time: 29.4 Trial to deal with all questions and issues Unless the court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising on every claim for relief in the proceedings.
2. Pursuant to r 28.2 of the UCPR the Court may order the separate determination of any question at any stage of the proceedings: 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.
3. Rule 28.1 defines "question" as follows: 28.1 Definition In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
4. A summary of the principles to be applied to the issue of whether separate questions should be determined was provided by Hallen ASJ in Southwell v Bennett [2010] NSWSC 1372 at [15], and more recently restated by Wilson J in Lake Maintenance (NSW) Pty Limited v Todd Hadley Pty Limited & Ors [2019] NSWSC 297: "[42] A summary of the principles to be applied to the question of whether separate questions should be determined was given by Hallen ASJ in Southwell v Bennett [2010] NSWSC 1372, at [15] as: (a) The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law. (b) The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51]. (c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question. (d) Whether such an order should be made is a matter for the court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]. (e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]-[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ. (f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. (g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049. (h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J. (i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168]. (j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at [142], per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported). (k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037. (l) Often, a separate question is heard on the basis of: (i) agreed statements of fact; (ii) a narrow point to be determined; and (iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with). (m) Factors that tend to support the making of an order, include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings; (ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at [607]). (n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions. (o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions. (p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J. (q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5. (r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred. (s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at [341]."
5. I am mindful of the many decisions of this and other courts that have observed that an interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality: Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5].
6. As with any application of the UCPR to proceedings, ss 56 to 60 of the Civil Procedure Act 2005 (NSW) must be borne firmly in mind with a focus on the just, quick and cheap determination of the real issues in dispute. In most cases those provisions are best served by case managing and hearing proceedings as a whole, but that is not so in every case.

Evidence tendered on this application

1. The plaintiff relies upon an affidavit of Breanne's mother and tutor, Kristy Stewart affirmed 6 October 2023 and an affidavit of Emma Mead, solicitor, affirmed 10 October 2023.
2. The defendants did not rely on any affidavit evidence.

Submissions

1. Mr Reynolds, counsel for Breanne, submitted that it is just and convenient to deal with liability issues first. There are no common witnesses who would need to give evidence on both liability and damages issues. The experts on liability effectively agree on all matters and so there is no need for an expert conclave. The cross-claims between the defendants can be filed in the short term and the issues relevant to liability can proceed. There is no prejudice to the defendants. Breanne's medical condition is not stable and it is unlikely the damages claim will be ready for trial for approximately 4 to 5 years. If there are in fact valid statutory offences it is better that these be determined now so that extra expense is not incurred by the plaintiff's tutor in preparing for a damages case that cannot succeed.
2. Mr Best, counsel for the Department of Education, submitted that the question for determination is not sufficiently articulated and the medical evidence is insufficient for the Court to use as a basis to split the issues of liability and damages because contrary to what Mr Reynolds submits, the expert reports suggest that due to Breanne's pain levels it may be necessary to perform the hip surgery sooner rather than later.

Application of those principles to the circumstances of this child's case

1. Speaking pragmatically, I must consider whether granting the separate question application will cause delay to the overall proceedings, will increase the costs of a party, will facilitate resolution of the proceedings, (here potentially, by clarifying responsibility and liability for Breanne's injury on the part of either, or both, or neither of the defendants), whether there will be substantial overlap of evidence with resultant risks of contrary credibility findings, or witnesses having to be called twice.
2. The Court must also apply the overriding purpose of the facilitation of the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2002 (NSW).
3. There is at least some prospect that focus on liability and the determination of issues relating to the nature and content of the duty of care owed by each defendant to the plaintiff, breach of duty, and any s 5D Civil Liability Act considerations will lead to settlement of damages issues when they are ready for assessment, or the abandonment of the damages claim if no liability is found. This will lead to a saving in time and costs for both the parties and the Court.
4. Section 57 of the Civil Procedure Act has direct application here given the practical concerns raised in the submissions by Mr Reynolds. Costs expended on the preparation of a damages case in circumstances where there may not be liability for someone else to pay them is an important consideration for a family raising and caring for a mentally and physically disabled child. The practical reality of knowing whether there is a basis for an application for an advance on damages to assist in paying for necessary treatment in circumstances where both defendants have denied liability, is also a matter of practical relevance.
5. It is not in any way unfair to the defendants to have the issue of liability heard and determined as early as possible, unaffected by delays relating to the stabilisation of Breanne's medical issues. It is in fact important for the defendants to have their witnesses available and giving evidence relatively close in time to the events so that their recollections are as fresh as possible and they are able to give their evidence effectively and be cross-examined so that the Court is assisted in determining those issues without the risk of years elapsing and memories fading while waiting for all the sequelae for Breanne to be first, stable and second, able to be fully assessed.
6. Expert reports have been exchanged which are self-evidently based on written accounts of witnesses who were present or involved. These statements are specifically referred to in the reports. Clearly these accounts have been prepared and can presumably be converted into sworn or affirmed witness statements suitable for filing and service very soon, if they have not been already.
7. There appears to be effectively no one in the plaintiff's "camp" who was present and can give evidence about what occurred relevant to liability issues. The evidence is clear that Breanne cannot articulate any evidence on any issue. Her parents and family were not present when the accident occurred, and were told of it only later.
8. The focus of the submissions of the second defendant was directed to the question of whether there is evidence showing that there will definitely be a long delay before the necessary further surgery would be completed. What the evidence shows is that this may well be the case.
9. However this was only one aspect of the plaintiff's application. The liability issues can be made ready now and do not rely on the exigencies of Breanne's recovery, the manageability or otherwise of her pain levels, her skeletal maturity and the difficulties and exigencies of surgical decision-making given her complex presentation.
10. It is more than possible that delays associated with these unknowns will be lengthy, but there is no reason at all as to why a hearing of liability issues could not proceed now subject to some basis case management orders. In my opinion it should proceed as soon as practicable and I will make additional case management orders to facilitate that path.

Costs

1. The plaintiff sought costs of the notice of motion. Counsel was briefed to prepare written submissions and appear because the second defendant made it clear that it opposed the order being made. The defendants were first asked in April 2023 whether they consented to the separate question approach. The second defendant has maintained its opposition. The first defendant only communicated its neutral position shortly before the hearing.
2. Mr Best submitted that there should be no order as to costs, or costs should be costs in the cause because the plaintiff required the Court to order the separate question regardless of the position of the defendants. He also submitted that the application is a "form of indulgence" and so r 42.2, costs following the event, should not apply.
3. I disagree with Mr Best's submissions. The application if consented to could have been the subject of consideration and short reasons provided in Chambers. Instead the Court was required to convene a contested hearing. The second defendant actively opposed the order, filed written submissions opposing the order, and retained counsel to attend Court to oppose the application. I do not consider the order proposed by the notice of motion to be an "indulgence". It is a pragmatic and sensible approach to facilitate justice for the parties.
4. The plaintiff's notice of motion succeeded. There is no reason why costs should not follow, and so the second defendant should pay the plaintiff's costs.
5. The first defendant, taking a neutral position, should bear its own costs of the notice of motion. It could have indicated much earlier than November 2023 what its attitude would be.

Orders

1. I made the following orders on 29 November 2023: 1. Pursuant to the Uniform Civil Procedure Rules 29.4 and 28.2 the issue of liability of the defendants for the injuries suffered by the plaintiff, including issues raised on any cross claims, is to be heard and determined separately and prior to the hearing and determination of quantum of damages. 2. The second defendant is to pay the plaintiff's costs of the notice of motion including counsel's fees. 3. The first defendant is to bear its own costs of the notice of motion. 4. I grant leave to the plaintiff to file in Court the amended statement of claim dated 28 November 2023. 5. The defendants are to file and serve any cross-claims on or before 13 December 2023 6. The first defendant is to file and serve on each other party its statement(s) of lay witnesses or statement(s) of the evidence it is expected each lay witness it intends to call will give in respect of liability issues, on or before 14 December 2023. 7. The second defendant is to file and serve its witness statements from each witness it is proposed to call at the trial on liability on or before 14 December 2023. 8. I list the matter for directions before Lonergan J at 9:30am on Friday 15 December 2023. The parties are requested to attend with available dates and estimates for a hearing on the issues on the separate question framed regarding liability and any issues raised on the cross-claims so that a date for hearing on the separate question can be fixed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023