PARTIES: HARREX, Emma by her litigation guardian Alecia Baker

Procedure - Supreme Court procedure - Tasmania - Procedure under rules of court - Other matters arising before trial - Power to order that in any proceeding any question be tried before any other - Plea in defence that action statute barred - Whether action statute barred depended on date of discoverability - Whether limitation plea should be tried before any other question in the action - Order to be made only in clear cases.

Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215, Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141, Parramatta Stadium Trust v Civil and Civil Pty Ltd [1996] NSWSC 439, applied.

Plaintiff: Bradfields Lawyers as agents for LHD Lawyers

Judgment Number: [2012] TASSC 45

EMMA HARREX by her litigation guardian ALECIA BAKER

1 This is an application by the plaintiff under r559(1)(b) of the Supreme Court Rules 2000 (SCR) for an order that the question of whether her action is statute barred be tried before any other.

2 The action is one for damages for personal injuries suffered in a motor vehicle accident on 21 December 2005. The plaintiff was 13 years old at the time, her date of birth being 18 July 1991. Although there is a rather complicated history in relation to the institution of proceedings, the writ naming Ms Hall-King as defendant was filed on 27 February 2012.

3 By her amended statement of claim the plaintiff alleges that on 21 December 2005 she was a passenger in a motor vehicle driven by the defendant in the vicinity of the intersection of Fingerpost Road and the East Coast Highway, that the defendant "proceeded off the road which caused the vehicle to roll and caused injury to the Plaintiff". What is referred to as the "collision" is said to have been caused by the defendant's negligence.

4 Although "draft" particulars of claim before me contain a more comprehensive list of the injuries said to have been suffered, those set out in the statement of claim are: "Closed head injury, Hand injuries, Deep lacerations to the right shoulder, Back injury cervical and thoracic, Pelvic injury, General lacerations, Bruising, Injury to the right scapula, Mild diffuse brain injury, Psychological injury [and] PTSD"

5 The defence to the statement of claim puts in issue the fact of the vehicle leaving the roadway, that the defendant was the driver, and that the collision was caused by her negligence. In paragraph 9 there is a plea of contributory negligence on the basis that the plaintiff failed to wear an available seatbelt.

6 Paragraph 10 of the defence is in the following terms:

"The Defendant says that the Plaintiff's claim cannot be bought [sic] as it is barred by the operation of Section 5A (3) of the Limitation Act 1974, as this action was commenced in excess of three years after the date of discoverability, as specified in that Act, which the Defendants says was on or about the 21st December 2005, or in the alternative that it was three years before the 28th of February 2012, the date when this action against the Defendant began."

7 The plaintiff has not served a reply to that defence. Effectively, it is the trial of paragraph 10 of the defence which is sought by this application. The plaintiff submits that there is utility in having this issue determined first. That determination would bring the case to an end were the plea to succeed, or on the other hand it would be likely to lead to an admission of liability, given the circumstances of the accident.

8 It is common ground that s5A(3) of the Limitation Act 1974 (the Act) applies to the plaintiff's action. It seems to be clear, at least for the purposes of this application, that the plaintiff suffered at least more than trivial or inconsequential injuries on the date of the accident. Accordingly, the cause of action accrued on that day. That date does not, however, determine when time begins to run. Section 5A(3) of the Act relevantly provides that an action for damages for negligence, where the damages claimed consist of, or include, damages for personal injuries, must not be brought after the expiration of whichever is the earlier of three years commencing on the date of discoverability - subs(3)(a) - or 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury - subs(3)(b).

9 The "date of discoverability" is defined in s2 of the Act as meaning:

"date of discoverability, in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death -

(b) was attributable to the conduct of the defendant; and

(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings."

10 As this action was commenced on 27 February 2012, the issue is whether the date of discoverability was before 27 February 2009. It is common ground that paragraph (c) of the definition will be the focus of the debate.

11 Rule 559(2) requires the court or judge to have regard to the advantage of hearing evidence without undue delay, the costs which may be incurred, and "any other relevant matter".

12 There are some authorities which provide additional guidance. I will deal first with the general principles which apply to applications for the trial of separate issues, and leave to one side for the moment particular aspects of such applications which relate to the separate determination of the limitation defence. Primarily, I accept that, as Zeeman J said in J Boag & Son Brewing Ltd v Cascade Brewery Co Pty Ltd 60/1997 ([1997] TASSC 64), the operation of the rule is not limited to points of law which if decided one way, would be decisive of the litigation without the need to go into the facts.

13 In Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215, Einstein J summarised the general principles relating to the separate determination of issues. His Honour said at [7]:

"Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, I proceed on the basis of the following principles.

(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: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J.

(2) ...

(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: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). 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_: CBS Productions Pty Ltd v O'Neil_ [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J);

(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: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D);

(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: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA.

(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: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J).

(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 witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J).

(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: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra)."

14 In this case the plaintiff seeks the separate determination of the limitation question in a case in which time begins to run from the date of discoverability. That date depends on things which the plaintiff knew or ought to have known about her injury. The nature and extent of the plaintiff's injuries will be a major point of contention in the trial of the action.

15 In Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, Mason CJ, Dawson, Gaudron and McHugh JJ, in a joint judgment, expressed a strong view against separating questions of limitation from the trial of a complex commercial claim under the (then) Trade Practices Act 1974 (Cth). At 533 their Honours said:

"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases."

16 Separate determinations of limitation questions can arise by virtue of applications to strike out, or as here, the separate trial of a plea raised in the defence. Wardley involved the former but the same general considerations apply. Applications to extend time involve different considerations. There is no rule or practice that such an application should not be dealt with otherwise as a separate application to exercise the statutory discretion in advance of any trial: Blunden v Commonwealth of Australia [2000] ACTCA 22 at 11. [1] In this case however the Act does not provide for extensions of time in cases to which s5A(3)(a) applies. In cases involving applications other than for an extension of time, the undesirability spoken of in the statement from Wardley has been highlighted, and the need for "the clearest of cases" endorsed, in many subsequent cases.

17 Resorting to SCR r559 and their equivalents "for the determination of a limitation question should only be entertained in cases where there is little or no doubt attendant upon the nature and incidence of the subject damage upon which the cause of action is reliant": Parramatta Stadium Trust v Civil and Civil Pty Ltd [1996] NSWSC 439. See also for instance Construct Pty Ltd v Bongiorno (1993) 113 ALR 667 at 676, Cubillo v Commonwealth [1999] FCA 518; (1999) 89 FCR 528 at 587 - 588 [167], State of New South Wales v Gillett [2012] NSWCA 83 at [108] and Tyco Australia Pty Ltd t/a Wormald v The Owners Corporation Strata Plan 49302 [2012] NSWCA 112.

18 I have an affidavit of the plaintiff's solicitor exhibiting a psychological report from Professor K F Kennett dated 23 November 2011. It is a very comprehensive report, the executive summary of which states that the plaintiff continues to suffer with brain trauma injuries (severe memory dysfunction that causes severe limitations), acquired brain injury (cognitive dysfunction with severe limitations including severe loss of personal and social competencies), physical injuries (pain disorder with debilitating restrictions), and psychological injuries (major limitations in adaptive behaviour and major chronic post-traumatic stress disorder).

19 The report details the history of the events associated with the injury, but this is limited to the immediate aftermath of the accident. It includes references to a statement by the police, ambulance and hospital records. Professor Kennett notes that at the hospital the plaintiff complained of a severe headache and chest pain, and her behaviour was apparently out of character, erratic and unco-operative. She was hospitalised for two days. After returning home she suffered persistent and severe headaches, despite the use of painkillers. The bulk of the report is a lengthy and comprehensive analysis of the plaintiff's present symptoms and disabilities, and the consequences of those things.

20 I have already referred to the general thrust of the plaintiff's submissions. Senior counsel for the plaintiff, Mr Bartley SC, frankly and properly acknowledged that there were competing arguments of some strength, and that what the plaintiff proposed had a simplicity about it which may or may not in the end prove to be illusory. This was in the sense that the making of the order may complicate matters rather than simplify them. However, the plaintiff seeks the early determination in the most cost efficient way, of an issue which if decided against her, will be fatal to her case.

21 As to the potential savings in costs, Mr Bartley said that the limitation issue would take about two to three days, whilst the trial as a whole would occupy between five to ten days. Senior counsel for the defendant, Mr Read SC, agreed with these estimates. The plaintiff points out that on the pleadings as they presently stand, in addition to the limitation plea, the fact of the driving of the vehicle by the defendant is in issue, as is also the fact of the accident and the negligent manner of the defendant's driving. Additionally, there is the plea of contributory negligence to be resolved.

22 If it is established that the plaintiff was not wearing a seatbelt, any reduction is to be assessed without recourse to any statutory reduction of damages. Section 22(3) of the Motor Accidents (Liabilities and Compensation) Act 1973 provides that in the case of damages awarded for personal injury where the person was not wearing a seatbelt at the time when the injury was suffered, and was not less than 16 years old at the time, damages are to be reduced by 15% or such higher percentage as the court considers just and equitable. Because of her age at the time of the accident, that section does not apply in the plaintiff's case.

23 The plaintiff accepts that the medical evidence, in particular that of Professor Kennett, would need to be explored in any separate determination of the limitation plea. There will be an issue as to the extent to which the consequences of the head injury were, or could have been, attributed by a lay person to causes other than the accident. However, the plaintiff points out that a much broader examination of all of the medical evidence would take place at trial. The end result of all of this is that there are substantial aspects of the trial beyond the limitation question.

24 If the plaintiff were to succeed on the limitation question, there would still need to be a rather lengthy trial in respect of all remaining issues. If she were to fail, that would bring an end to the action, and the need for a trial of those residual proportions would be obviated. Lastly, it might also be said that if there is a separate resolution of the limitation question in the plaintiff's favour, there might be some increase in the prospects of successful negotiations to settle the entire action.

25 For the defendant, Mr Read suggested that the resolution of the limitation question was not as simple as it may appear on the face of things. In explanation of this, the defendant accepts that the degree of the purely physical injuries suffered at the time of the accident is not going to be determinative of the question.

26 An underlying point made by the defendant is one which relates to the burden of proof in relation to the limitation plea. Mr Read accepted that the weight of authority establishes that a defendant who raises a limitation defence bears the onus of proving it. However, he said that there was recent conflicting authority in Australia with one case against the trend - Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159. But I do not think this case is in conflict with other authorities: see Malcolm CJ (Kennedy J agreeing) at 171 - 175, [36] - [51].

27 It seems to me that the present state of the law is unequivocal, and is indeed that a defendant who raises a limitation defence bears the onus of proving it. In particular, I also refer to Pullen v Gutteridge [1993] VicRp 4; [1993] 1 VR 27 at 71 - 76, Cassis v Kalfus [2001] NSWCA 460 at [65], Segal t/a Segal Linton and Chilton v Fleming [2002] NSWCA 262 at [27], Stocks v Retirement Benefits Fund Board [2007] TASSC 8 at [123] and State of New South Wales v Gillett (above) per Beazley JA at [26] (McColl, Campbell, Young and Whealy JJA agreeing). I am conscious that of these cases, only Gillett deals with a limitation plea based on similar "date of discoverability" provisions. However, that is a decision of an intermediate appellate court of five judges and although the matter was not argued, I cannot see how I can properly do otherwise than to follow it, nor immediately see any reason for a different approach to be taken.

28 The defendant's submission was made to highlight the prospects of an appeal from a determination of the limitation question alone, depending on the view taken by the trial judge as to who bore the onus. However, as is clear, I proceed on the basis that it is the defendant. That raises the second aspect of the defendant's submission which is that, assuming the defendant bears the onus, a number of procedural difficulties for the defendant arise which have potential serious disadvantages. Even assuming the plaintiff was required to go first in order to establish a cause of action in the sense which I have mentioned, both the legal and evidential burdens would fall on the defendant.

29 Mr Read made a number of points as to the defendant's position. They are:

•

the issue of the date of discoverability involves a wide-ranging inquiry which extends to the conduct of both the plaintiff and her mother on the date of the accident;

•

that inquiry is all the more wide-ranging because the defendant has not delivered a reply, more specifically there is no reply which would serve to define the parameters of the date by identifying a date of discoverability suggested by the plaintiff;

•

the costs of the separate determination would, in any event, be extensive;

•

there will be no costs savings unless the defence succeeds, but a significant increase in costs if it fails;

•

there is the real possibility of an appeal in the event the defendant succeeds with the costs caused by fragmentation;

•

the costs of the interlocutory steps of discovery including interrogatories will not be saved because the defendant would need to pursue those things given where the onus lies;

•

the separate determination is likely to delay the proceedings which are presently the subject of a case management timetable;

•

the real potential exists for contradictory findings due to the identity of issues on the discoverability question and relating to the assessment of damages.

30 A determination of the date of discoverability will involve an examination of the onset and development of the plaintiff's symptoms and their consequences, and of the attitudes and responses to them of both the plaintiff and her mother. The determination of the limitation question will require findings of fact about these things. I would think that an assessment of credibility would invariably be involved, and those findings may well be credibility based.

31 The report of Professor Kennett is essentially confined to the causes of the plaintiff's present disabilities, and their nature and extent. It does not, as I have said, deal in any detailed way with the history and chronology of relevant events. Accordingly, there is no discussion about the sorts of things which an inquiry as to date of discoverability, with particular reference to paragraph (c) of the definition, will involve. On the other hand, the detailed examination of the nature and extent of the damage alleged to have been suffered shows that the determination of the limitation plea will involve a significant amount of Professor Kennett's expert evidence.

32 Accordingly, were the plaintiff to succeed on the limitation question, at the subsequent trial there would be a not insignificant duplication of her own evidence, that of her mother (and perhaps other relatives and close friends) and of the medical evidence. Findings on credibility and credibility based findings would create difficulty for the judge who hears the matter in relation to any subsequent trial or appeal. It also raise the prospect of contradictory findings in any later trial, were the plaintiff to succeed. I accept of course that if the plaintiff were to fail, there would be no further trial, and no further exposure of the plaintiff to costs of any description.

33 It is worth setting out a passage from the judgment of Giles CJ in Comm D in the Tallglen case referred to in point (3) of the quotation from Idoport which I have set out (above). It seems to me that it addresses the particular concerns with this case. That passage is as follows:

"In the ordinary course all issues in proceedings should be decided at the one time, but separate decision of a question may be appropriate where, for example, 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, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties' dispute."

34 I must say that there is an attraction to the plaintiff's proposition, but I see that attraction as superficial. It is true that there will be a significant saving of court time in the event that the question is resolved in favour of the defendant, but conversely, a favourable outcome for the plaintiff will not have the immediate effect of either resolving the entirety of the action "or of substantially narrowing the field of litigious controversy". The resolution of the separate issue does not carry with it any strong prospects that the parties will be able to resolve the action by negotiation, although, as I have said, it adds somewhat to the prospects of that.

35 Further, the issues of fact concerning the date of discoverability, and the nature and extent of the plaintiff's symptoms and disabilities suffered over the period of time are intertwined to a large degree. There will be a commonality of witnesses, and issues of credibility will no doubt be involved in the determination of the limitation question. I also accept that as a relevant factor, the separate determination has the potential to create procedural disadvantages for the defendant, which although not insurmountable, do have an impact, at least in terms of cost. Another relevant factor is the real possibility of costly fragmentation.

36 For the reasons I have given, I am not able to say that the case for the making of the order sought is a clear one. The application is dismissed.

[1] Blunden provides a useful illustration of the difficulties which fragmentation of the proceedings can cause: see paragraph [6] of the judgment.