HIS HONOUR: This is an application under UCPR 28.2 for a separate trial of a number of issues in the substantive proceedings. The defendant makes this application by way of a notice of motion, an amended form of which was filed in court yesterday.
[2]
Facts
To understand what has happened, it is necessary to briefly consider the statement of claim and the facts behind it. The late Julia Kovac-Nemedi, who was then 26 years old, was a passenger in a green and purple coloured Toyota Coaster bus which can be shortly described as a minibus. That vehicle was travelling north on the Hume Highway on 9 February 2015. The minibus was being driven by Yoad Konikoff, who was then 24 years old. Mr Konikoff was using an Israeli driver's licence. Seated beside him on the passenger side of the minibus was Mr Ben Jacoby, who was also 24 years old. An inference can be drawn that Mr Jacoby was, like Mr Konikoff, an Israeli, and that they were both visitors in this country. The late Julie Kovac-Nemedi was also a visitor to this country. She was from Canada. At the time of a collision which I shall shortly describe, the deceased was lying on a bed located in the rear of the minibus with her head towards the back of the bus.
The first defendant was a truck driver. He was the driver of a Western Star Prime Mover towing a trailer containing dangerous goods. Like the minibus, the first defendant was driving north along the Hume Highway. The second defendant in these proceedings is the owner of the Western Star Prime Mover, which is by statute liable for the acts and omissions of the driver of its vehicle.
The Western Star Prime Mover was fitted with a system known as "Optalert" which monitors the fatigue level of the driver. That system requires the driver to wear a special pair of spectacles which monitor the driver's blink rate and fatigue levels. The Western Star Prime Mover was also fitted with a GPS tracker which tracked the truck's route and position every two minutes. Not only does it track the truck's route and position, but it also records, at each two minute interval, the time, the road type, the duration of travel, the distance that has been travelled, and the speed and the maximum speed of the vehicle, the posted speed limit, and also records braking movements of the truck, the gear involved, the RPM level of the engine and the odometer reading and fuel consumption of the truck.
On 9 February 2015, the first defendant, at 4.30pm, collected a vehicle from a depot in suburban Fairfield and then drove to Tarcutta where he arrived about 9.30pm. He remained at Tarcutta until 11pm before commencing a return trip to Fairfield. The first defendant's national driver work diary indicated that he was actively working at Tarcutta until 10.30pm and therefore that his only rest break was for 30 minutes before leaving Tarcutta.
It is clear from the facts that at all material times the minibus, in which the deceased was a passenger, was ahead of the first defendant's truck on the Hume Highway. About 11.50pm, each of the minibus and the truck driven by the first defendant were travelling in lane 1 on the northbound side of the Hume Highway near Jugiong, near the intersection of the highway and Belmont Road. That stretch of the highway is near the top of a long sweeping right‑hand bend on a steep incline. Because of the steepness of the incline, the minibus could only travel at 80 kilometres per hour. At the same time, the truck was travelling at 98 kilometres per hour. Sometime between 11.50pm and 11.52pm, the truck being driven by the first defendant collided with the rear of the minibus, effectively pushing the minibus up the highway for a short distance before both vehicles came to a stop in the breakdown lane about 20 metres south of the Belmont Road intersection.
The data collected by the GPS tracker indicated that the truck was travelling at 98 kilometres per hour and that there was a failure to apply the brakes at all prior to the collision. It appears that afterwards, there were six applications of the brake. The Optalert system indicated that the first defendant had removed the Optalert spectacles at 11.50, but on two occasions prior to the collision that system had issued two warnings to the driver about his condition. One warning had been given at 11.39pm, and the warning concerned fatigue. The second warning, again concerning fatigue, was issued by the Optalert system at 11.48, that is, between two and four minutes prior to the collision.
According to the police facts, the deceased was believed to be asleep in the bed in the rear of the bus at the time of the collision. It is clear that the rear of the minibus took the full brunt of the collision with the truck. The deceased sustained life-threatening head and neck injuries as a result of the collision and was rendered both unconscious and unable to breathe. According to the police facts, the deceased was resuscitated at the scene by "witnesses" and then by ambulance personnel and she was then airlifted to the Canberra Hospital in Woden in the ACT. Unfortunately, the deceased died of her injuries at Canberra Hospital four days later, on 13 February 2015.
One final thing to note about the facts is that the police were unable to identify the exact point of the collision as there were no skid marks or gauge marks on the roadway. That clearly indicates that the truck had failed to brake at all prior to the collision.
The plaintiff in these proceedings was not a passenger in the minibus or a passenger in the truck. The plaintiff was the driver of another motor vehicle which was travelling north along the Hume Highway. She came upon the accident scene shortly after its occurrence. She can be described as a "good Samaritan", using terminology used in the Civil Liability Act 2002 ("CLA"). She gave assistance to the deceased. She administered cardiopulmonary resuscitation and mouth to mouth resuscitation. I infer that she did so prior to the arrival of the New South Wales Ambulance. I do not know, nor does any material before me indicate, when official emergency service personnel attended, that is, when the New South Wales Ambulance arrived, when police arrived and whether, and if so, when a NSW Fire and Rescue appliance or personnel attended. And because this was in a rural environment, it is also possible that the local bushfire brigade attended or volunteer emergency service workers.
[3]
The cause of action
The plaintiff brings an action against the driver of the truck and its owner on the basis that the driver of the truck and the owner owed the plaintiff a duty of care. In the statement of claim, the following allegations are made:
"8. The defendants at all material times owed the plaintiff a duty to take all reasonable precautions not to expose [her] to a foreseeable risk of suffering not insignificant harm. The duty owed to the plaintiff included a duty to take all reasonable care not to expose the plaintiff 'a rescuer' to mental harm and nervous shock, consequent upon the plaintiff [sic] witnessing Julia Adria Kovac-Nemedi being killed or injured at the scene of the accident referred to in para above.
PARTICULARS OF DUTY
9. It was reasonably foreseeable that the plaintiff, 'a rescuer', witnessing Julia Adria Kovac-Nemedi being killed or injured, in particular whilst attempting to resuscitate her by applying CPR and mouth to mouth resuscitation would suffer mental harm and or recognisable psychiatric injury."
The plaintiff maintains that the defendants breached their duty of care to her and as a result that they are liable for an injury she sustained whilst once upon a time lawyers called "nervous shock" but is now called, to use the terms of the CLA, "mental harm". The plaintiff's only claim is for non‑economic loss, that is, for general damages and for her out of pocket expenses. She makes no allegation that she lost any income because of the mental harm that she says she has suffered and makes no claim that her earning capacity in the future will be affected by the mental harm that she has suffered.
[4]
Matter not yet ready for hearing
As I understand it, the plaintiff has seen a psychiatrist who has made a diagnosis and has certified that the plaintiff has sustained whole person impairment (WPI) of greater than 10%. The defendant qualified Dr Robert Lewin, a psychiatrist, on 13 October 2017. Dr Lewin expressed the opinion that the plaintiff's injury - which, from what I was told from the Bar table, appears to be post-traumatic stress disorder - was not stable and would not stabilise until the expiration of a further nine to 12 months.
I understand that arrangements either have been made or will be made for the plaintiff to be re-examined by Dr Lewin towards the end of the current year to enable him to express a view as to whether the plaintiff's condition has stabilised, and if so, what is the extent of her WPI. For the plaintiff to recover damages for non-economic loss, she must establish that she has a WPI greater than 10%. If Dr Lewin form the view that the plaintiff's condition has stabilised but do not agree with the plaintiff's expert, Dr Adesina Adesanya, that the plaintiff has a WPI of more than 10%, it will be necessary for the plaintiff to apply to the Medical Assessment Service, established under the Motor Accidents Compensation Act 1999, for the appointment of an Assessor who will conclusively establish whether the plaintiff has WPI of greater than 10%. According to the defendant's solicitor, Mr Paul Mison, should it be necessary for an MAS to be appointed then one could not expect an MAS certificate to issue until late February 2019 and there is a potential for review applications to be filed. Such review applications can be made up to 30 working days after the certificate of the medical assessor is issued and Mr Mison believes that it could be until late April 2019 before any review of the original assessment could be finalised.
[5]
Relief sought
If that be the case, the matter could not proceed to hearing in this Court until probably the sittings commencing on 20 May 2019, one year hence. In those circumstances, the defendant moves the Court for a separate hearing essentially on three issues. The relief sought in the amended notice of motion is a separate trial pursuant to UCPR 28.2 of these issues:
"(a) The question of whether the defendants (or any agent of the defendants pursuant to s 112 of the Motor Accidents Compensation Act 1999) were in breach of duty to the plaintiff and the plaintiff's entitlement to recover damages pursuant to s 30(2) of the Civil Liability Act as put in issue by the pleadings;
(b) If the answer to (a) is in the affirmative, the question of the degree by which the plaintiff's recovery should be reduced by the contributory negligence of the victim pursuant to s 30(4) of the Civil Liability Act 2002".
Mr Sleight, who appears for the defendant, the applicant on the notice of motion, defined three issues or questions which ought be the subject of a separate trial. They were whether the defendants owed a duty of care to the plaintiff, and if so, whether the duty of care owed to the plaintiff was the same as the duty of care that the defendants owed to the passenger in the minibus, namely the deceased, who can be conveniently referred to as the "victim", and thirdly, the application of s 30(2) of the Civil Liability Act, namely the question of the extent of a reduction of the plaintiff's entitlement because of alleged contributory negligence by the victim. As I understand it, there was no real dispute that if the victim - that is the late Julia Kovac-Nemedi - was guilty of contributory negligence, then the plaintiff's damages must be reduced to the extent of the contributory negligence of the victim. That is the clear statutory provision in the CLA s 30(3).
[6]
Consideration
To establish her cause of action, the plaintiff must establish the matter contained in s 32 of the CLA, and then satisfy the provisions of s 30 of the same statute. In particular, the defendant relies upon s 30(2) which is in the following terms:
"The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) The plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) The plaintiff is a close member of the family of the victim."
It is common ground that the plaintiff was not a "close member of the family of the victim", that term being something defined in s 30(5). Accordingly, the plaintiff to recover has to establish that she witnessed at the scene, the victim being "killed, injured or put in peril". The defendant in the course of submissions put a very narrow construction on those words, but it is clear from the decision of the High Court of Australia in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 a more expensive construction can be put upon those words. In particular, one needs to consider what fell from the High Court at [43] to [50].
Although the basic facts are as I have earlier outlined, much further detail and therefore evidence would be required as to the circumstances of the plaintiff's interacting with the deceased. For example, one would need to know how long after the collision actually occurred did the plaintiff reach the scene of the collision. Was it five seconds, 50 seconds, or five minutes. One would need to know how, if at all, the deceased was removed from the minibus and where it was that the plaintiff sought to assist the deceased by rendering CPR and mouth to mouth resuscitation. Was it while the deceased was still in the minibus, or if the deceased had been removed from the minibus whether it was in the breakdown lane or on the carriageway itself. One might need to know what arrangements had been made by those present at the scene, which must have included the two men who were in the front of the minibus, and the first defendant himself to stop other motorists coming on the crash scene at the posted speed limit of 110 kilometres, rendering those who might be on the carriage way dealing with the aftermath of the collision the threat of there being injured or further injured.
Unfortunately, it is not uncommon for those involved in an accident who alight from vehicles onto the carriageway or are otherwise on the carriageway as a result of a breakdown or a collision to be struck by motorists who are unaware of the emergency before them and speed by and collect a person who is on a carriageway. In other words, it is possible that the deceased remained in peril of further injury because of where she might have been when she was being resuscitated by the plaintiff. Indeed, the plaintiff herself may have been in a position of peril if the deceased remained in a position of peril.
In Wicks v SRA, the plaintiffs were two police officers who alleged that they suffered PTSD as a result of coming to the scene of the Waterfall Railway disaster after the train had become derailed, but there was still perils to be obviated, perils from, for example, fallen overhead electric wires and persons were still being injured in attempts to free them from the wreckage of the train. Such matters may be pertinent in this case. Furthermore, it would be otiose to make a ruling as to "contributory negligence" if there were no contributory negligence. The Court would have to find contributory negligence before making a determination. For my part, I believe that the allegation by the defendant that the deceased was guilty of contributory negligence is almost unconscionable. I find it very difficult to see how a person lawfully using a vehicle by being asleep in the back of it could be guilty of contributory negligence because another motorist rammed the back of the vehicle in which the person was sleeping.
However, the defendant takes the point. It would probably be necessary for the plaintiff in those circumstances to call the driver of the minibus and his front seat passenger - the two young men, probably both from Israel - that I have identified. The circumstances of proving what happened immediately after the collision may require the calling of the first emergency workers on the scene which would involve probably calling an ambulance officer or both ambulance officers and may involve calling the first police on the scene.
The police evidence before me is a "Facts Sheet" compiled by Detective Aaron Walker of Cootamundra but it is more likely that his involvement was well after the immediate emergency caused by the collision, and that the first police on the scene might be Highway Patrol officers from either Yass or Gundagai, more likely Yass, or they could in fact be uniformed officers from the closest police station which I understand it to be Yass. There is no police officer stationed at Jugiong.
Furthermore, it would be impossible to hear the separate questions and determine them without the plaintiff herself giving evidence. If I were to accept the defendant's argument, the plaintiff could be called twice to give evidence about her experience both at the preliminary hearing and at the final hearing, if the preliminary issues are determined in her favour. In other words, the plaintiff may be required to recall in evidence twice what happened shortly before midnight on 9 February 2015. Courts are always reluctant to require a witness to recall twice traumatic events which led to the development of a psychiatric or psychological illness. There does not appear to be any dispute at the moment that the plaintiff sustained such a psychiatric or psychological condition, and therefore to require her to relive the event twice would be both painful and damaging for the plaintiff.
Furthermore, the authorities make it clear that one of the reasons for having the separate trial of certain questions or issues is to minimise costs. With the upmost respect, what the defendant proposes will maximise costs. If the plaintiff succeeds on the issues tendered in the separate questions, then the second or substantive trial would be short because it would amount to an assessment of damages which would require her to give evidence and would probably lead to the tendering of medical reports, which a judge would read and evaluate in order to ascertain the quantum of the plaintiff's damages. Such a hearing might well be very short but the hearing of the separate questions could be extremely lengthy. In other words, the proposal made by the defendant would not lead to a shortening of time but might require the running up of additional costs; two hearings rather than one.
Mr Sleight referred me to the decision of Hallen AsJ in Southwell v Bennett [2010] NSWSC 1372. In [15] of his reasons the Associate Justice summarised the caselaw concerning the separate trial of questions or issues in nineteen separate paragraphs. The Associate Justice's reasons were gratefully adopted by Beech‑Jones J in Crawley v Vero Insurance Limited [2012] NSWSC 593 at [15]. It is I think, salutary, to consider what fell from Beech-Jones J at [17]:
"…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]. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order, but it may be appropriate for the judge to take a more "interventionist role" in crafting the precise scope of the question: Integral Home Loans Proprietary Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 per Brereton J at [6]; Commonwealth Bank of Australia v Clune [2008] NSWSC 1125. The counter to the observations in [16] is that sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to the trial but with the years having passed. Kirby and Callinan JJ noted in Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168] that the benefits of a separate question order 'are often more chimerical than real. Common experience demonstrates than savings in time and expense are often illusory…'"
Without prolonging the current determination, I should draw attention to the decision of Hallen AsJ in the case I have cited and refer in particular to the paragraphs he numbered (e), (g), (h), (i) and (l). In the last paragraph to which I referred, his Honour pointed out that a separate question is often heard on the basis of an agreed statement of facts and a narrow point to be determined and a hearing that is able to be conducted within a short time (or a short time relative to the total length of the hearing of the separate question if the hearing of the separate question were not to be dealt with). But none of those three points here arises.
Furthermore, there is one fatal answer to the defendant's submissions. As I have pointed out, the plaintiff's claim is only for damages for non-economic loss and her out of pocket expenses. Learned senior counsel for the plaintiff, Mr Roberts SC, referred to the out of pocket expenses having being paid by "Medicare" so that the plaintiff's out of pocket expenses if recovered would merely be repaid to that entity. If the plaintiff is unsuccessful in establishing a WPI of more than 10%, then she is not entitled to recover damages for non‑economic loss or, to use the more usual terminology, general damages. In other words, all the plaintiff would be proceeding on is to act as an agent for Medicare to recover its expenditure from the insurer of the defendants. In those circumstances, the plaintiff may well discontinue the proceedings or fail to press on with it. In those circumstances, having a separate trial of issues which might never arise would be a completely otiose exercise. I am not persuaded on the balance of probabilities that this is at all an appropriate case in which to order that there be a separate trial of discrete questions or issues. For those reasons, the notice of motion - the original which was filed 29 March 2018 is dismissed. I order the defendant to pay the plaintiff's costs.
SLEIGHT: As the Court pleases.
HIS HONOUR: I see you're here now, Mr Roberts. Either you or Mr Abbott can tell me what you want done, I was going to suggest I put this matter in for mention on the first day of the first sittings next year, would that be convenient? I mean it may be that Dr Lewin accepts that there is greater than 10% and therefore there is no issue.
ROBERTS: Your Honour's suggestion is a good one if I may say so with respect, could your Honour do that?
HIS HONOUR: I order that this matter be listed for directions on the first day of the first sittings of this Court in 2019.
[7]
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Decision last updated: 28 March 2019