Daniel Robert Lambert bhnf Nicole Lucas v Zammit

CASES CITED : Idoport Pty Limited & Anor v National Australia Bank Limited & Ors [2000] NSWSC 1215

Daniel Robert Lambert by his next friend Nicole Lucas - Plaintiff PARTIES : Sandra Zammit - Defendant

Mr P Frame - Plaintiff COUNSEL : Mr R Stitt QC - Defendant

Matthews Folbigg Pty Ltd - Plaintiff SOLICITORS : Abbott Tout - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20253/04 - Daniel Robert LAMBERT by his next friend Nicole LUCAS v Sandra ZAMMIT

JUDGMENT 1 HIS HONOUR: Nature of application On 22 November 2002 the plaintiff, Daniel Robert Lambert then aged seven, was attempting to cross Fitzwilliam Road Toongabbie on his way to school when he was struck by a motor vehicle driven by the defendant. As a result of the collision, the plaintiff suffered traumatic brain injury, a fractured skull, fractures to the face and a fractured left femur. He has been left with extensive cognitive, motor and behavioural deficits, ie incomplete quadriplegia complicated by brain damage. The medical reports to which I have been referred indicate that the plaintiff has required twenty-four hour care. 2 The COPS summary prepared by the Police Service summarised the incident as follows: "The child pedestrian was attempting to cross Fitzwilliam Street from south to north. It is apparent that the child waited for the west boundary traffic on Fitzwilliam to pass and then ran out from behind the last vehicle, which was a truck. As the child came out from behind the truck into the east bound lane he was hit by a vehicle travelling east." 3 Liability has not been admitted. 4 The plaintiff by motion dated 18 October 2004 seeks an order that there be a separate trial in relation to liability. This is opposed by the defendant. The motion came on for hearing before me on Friday 4 March 2005.

Competing arguments 5 On behalf of the plaintiff two arguments were advanced. The first involved hardship. The plaintiff was discharged from hospital into the care of his mother on 3 September 2003, ie approximately nine and a half months after the accident. She is a single parent with another child to care for. The plaintiff requires essentially full-time care. The only respite his mother gets is when he attends school. She receives between ten-fourteen hours of attendant assistance from Homecare Services of NSW per week but otherwise is required to care for the plaintiff on her own. 6 The plaintiff's mother is not coping well with caring for the plaintiff. She is not able to adequately parent her other child, whose behaviour is such that she was recently expelled from school. The plaintiff's mother is concerned that the absence of adequate care and timely rehabilitation intervention will mean that the plaintiff will not make gains which otherwise might have been possible had adequate resources been provided. 7 The first argument depends upon the provisions of s83 of the Motor Accidents Compensation Act 1999 (MAC Act) which relevantly provides: "83(1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of: (a) Hospital, medical and pharmaceutical expenses, and (b) rehabilitation expenses, and (c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and (d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay), as incurred. …" 8 The plaintiff's medical condition has not yet stabilised. Although there will not be any substantial physical resolution of his disabilities, there is some prospect of improvement in such matters of speech, arm movements and adjustment to his mental deficits. It is unlikely that his condition will fully stabilise until he matures, which is likely to be many years into the future. He has apparently made some significant gains whilst attending a special school for disabled children. 9 In the normal course of events where liability and damages are heard together, the hearing of this matter would not take place for many years. As a consequence it would not be known until the hearing of the matter what resources would be available for him for the rest of his life. In other words the plaintiff, his mother and his family would have to cope as best they can during those years in the hope that ultimately he would be successful in establishing liability. 10 The plaintiff's second argument related to the finality of the litigation. If liability was dealt with separately, a hearing as to liability could be expected to take place this year and even if the matter went on appeal, there would be some certainty for the family one way or the other within a relatively short time. If a favourable result occurred, the plaintiff would immediately be entitled to the benefits of s83 MAC Act. From the defendant's point of view, if it obtained a verdict that would bring an end to the matter and there would be no damages to be considered. 11 On behalf of the defendant it was submitted that the plaintiff has not been left without any assistance by the defendant's CTP insurer. Consultations took place between the CTP insurer and PADP (Provision of Aids to Disabled Persons) before the plaintiff's discharge from hospital. This resulted in the provision of equipment such as a wheelchair, hoist, standing frame, ramps, shower aids, feeding equipment, a special bed and other associated matters by the CTP insurer. To date the value of this equipment is approximately $13,000. Some requests by the plaintiff's mother have not been consented to, such as a washing machine, clothes dryer and computer. In relation to the computer, justification was sought by the CTP insurer but as yet that has not been provided. 12 It was also pointed out that the plaintiff's mother has received approximately two-three weeks respite assistance, rental subsidies have been provided to her and the Westmead Hospital is providing some care. These last matters were not paid for by the CTP insurer. The Court was informed that because the plaintiff falls outside what was described as the "paediatric guidelines", the CTP insurer was able to pay a further $7,000 for the provision of equipment and assistance but that this would require the plaintiff's mother to consult with the CTP insurer, which had not been occurring. 13 It was submitted by the defendant that nothing had been put before the Court, which would justify the Court in departing from the usual procedure of liability and quantum proceeding together. The defendant was happy to co-operate with the plaintiff in seeking expedition of the matter but wished liability and quantum to be dealt with together. It was the defendant's opinion that most of the damages issues would be capable of agreement and that those which were disputed would not take long to decide and would be resolved within a week. Although there might be some modest improvement in the plaintiff, his condition would unfortunately remain the same and could be assessed now. There was, accordingly, no reason to delay the hearing of both liability and quantum until some unknown time in the future. 14 It was also submitted that to separate liability from quantum, particularly where an appeal was likely on the issue of liability would disadvantage the defendant. The cost for the defendant of two trials would be inevitably greater if the plaintiff was ultimately successful on the liability issue. 15 I was advised by both counsel that insofar as the plaintiff was concerned, his liability evidence had now been collected and served. He relied upon two experts, Dr Henderson and a Mr Johnson. There was a complication in that the availability of Dr Henderson was very limited and he would only be available to give evidence between 20 May and 20 July and 24 August-3 September 2005. Senior Counsel for the defendant advised a response to the plaintiff's liability experts could be obtained within two months. His estimate of the length of the hearing as to liability alone was approximately two weeks.

Applicable principles 16 Part 31 r 2 of the Supreme Court Rules contains the power of the Court to order the determination of separate issues in the proceedings: "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; and (b) the statement of a case and the question for decision." 17 A useful statement of the applicable principles was made by Einstein J in Idoport Pty Limited & Anor v National Australia Bank Limited & Ors [2000] NSWSC 1215 as follows: "(1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered. (2) In exercising the power under Part 31 r 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules ; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time. Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) Where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of 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 witnesses. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation, (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, (c) there is a possibility that the 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.

Decision 18 It is generally accepted that a separate decision of a question may be appropriate where the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions. This is such a case. In making that observation, I am of course well aware of the need to avoid what Einstein J described as the fragmentation of the proceedings, which can bring about the very result, which the order seeks to avoid. 19 From my experience in cases of this kind, although the general nature and level of disability of a seriously injured infant plaintiff is known at an early point in time, with maturity and rehabilitation some important gains can be achieved. The extent of those gains will often not be known until after puberty. Although such gains may appear to be relatively minor against the total medical picture, they can be particularly significant when dealing with matters such as care. There can, for example, be a significant saving for a defendant where a severely disabled plaintiff does not require sleep over care. 20 Accordingly I accept the assessment by counsel for the plaintiff that the plaintiff's damages case is unlikely to be ready for hearing for many years. 21 This means that the present care and rehabilitation regime, described by the plaintiff's mother in her affidavit of 3 March 2005, is also likely to continue without amelioration for many years. I am, of course, mindful of the assistance which has already been provided by the CTP insurer and which is being provided by Westmead Hospital and other State agencies. Nevertheless, one cannot help but wonder for how long the plaintiff's mother will be able to continue to provide care for him unless she receives some significant additional assistance. 22 Even though the CTP insurer has provided a substantial range of equipment and is prepared to do so to the extent of an additional $7,000, one can see why the plaintiff's mother would want to have the statutory protection provided by s83 MAC Act. There is no cap to the monies which can be expended under that section. The only test is whether the expenditure is "reasonable and necessary". 23 It follows that I accept the first argument on behalf of the plaintiff that there is some urgency associated with the present situation of the plaintiff and his mother, which can best be resolved by an early resolution of the liability issues. If that question is adversely decided for the plaintiff, then at least his mother can make a decision at an early point in time as to how she proposes to adjust her life to care for the plaintiff if she is able to do so. From the defendant's point of view, the CTP insurer would have finality and would not need to concern itself further with the damages question. 24 If the plaintiff does succeed on liability, then the sort of assistance provided by s83 can be made available immediately to the certain benefit of the plaintiff and his mother, rather than being delayed for many years into the future. From the defendant's point of view, such a result may well lead to a settlement of the damages question without that matter needing to be litigated. 25 It is common ground that there is a clear distinction between the evidence to be called on liability and that to be called in relation to damages. There will be no overlap of witnesses nor will there be decisions as to credit made in any liability hearing which would have an effect on a subsequent hearing as to damages. 26 On the other hand, because of the significant consequences for the losing party, there is a strong likelihood that any decision on liability will be taken on appeal. That, however, is likely to be the outcome even if liability and damages were heard together. One would expect such an appeal to be disposed of within twelve months of being filed, so that the benefits for the plaintiff of an early determination of liability if he were successful, would still remain. 27 I regard the difficult position of the plaintiff and his mother to be a particularly strong consideration. They are entitled to know sooner rather than later what the liability position is so that planning can be made for his future. In particular if the plaintiff is successful on liability, he will immediately obtain the benefits of s83 of the MAC Act even though damages may not be finally assessed for many years. 28 Taking that matter into account with the other discretionary considerations to which I have referred, I am of the opinion that I should grant the plaintiff's application for a separate trial as to liability.

Conclusion 29 The orders which I make are as follows:-

(1) That there be separate trials in respect of the issues of liability and quantum. (2) That the trial as to liability be given expedition. (3) That the costs of this application be costs in the cause. **********

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