21 It appears that there were no eye-witnesses to the accident, but there is a witness who was apparently travelling just behind the plaintiff's car. It seems that the witness did not actually see the accident because his vision was obscured due to the bend in the road. There is another witness who came onto the scene immediately after the accident had occurred. She apparently made observations as to the position of the cars.
22 It is not in dispute that the plaintiff suffered severe injuries following the accident. He was hospitalised for a period of six months and was unconscious and in ICU for some considerable period of time. He allegedly suffered traumatic brain injury; fracture of the right femur, with consequent valgus deformity of the right knee with hyperextension changes, chondromalacia patellae, and 20 degree external rotation deformity in left hip posture; healed fracture of the left proximal humerus, with consequent restriction in the range of movement of the left shoulder; healed fractures in the pelvis, with bilateral leg pain; critical care polyneuropathy, and as a consequence has severe bilateral ankle weakness and marked bilateral leg dysaesthesia; serious abdominal injuries; and extensive skin grafting and abdominal herniation.
23 So far as the brain injury is concerned, Dr Buckley rehabilitation specialist (report 01/12/2007), says that the plaintiff has a traumatic brain injury and to ascertain the extent of it, a forensic neurological assessment and MRI scan of the brain are required. As I understand it, the medical evidence consists of the hospital records and the report of Dr Buckley. It appears that they may have had the plaintiff examined by one or two specialists.
24 The plaintiff's solicitor Mark Capolupo says that he has had discussions with the plaintiff's parents who informed him that they are not in a position to fund the costs of litigation in these proceedings. Mr Capolupo believes that the plaintiff will be unable to properly fund a case on quantum unless he is successful in obtaining litigation funding. His firm of solicitors are prepared to fund the case on quantum but are not prepared to fund the plaintiff's case on liability. The solicitors are prepared to fund the plaintiff's case if liability is determined before quantum.
25 Prior to the accident, the plaintiff was employed as a labourer doing lawns and laying turf (t 5.26). He was fit and healthy. There is no evidence that the plaintiff had any pre-existing medical or psychological conditions or injuries.
26 The plaintiff gave evidence that he is currently undertaking unpaid light work on a casual basis on behalf of the House with no Steps. He works three days per week for six hours at a time. He receives approximately $34 on a fortnightly basis, being an allowance for travel and meals. He has been involved with the House with no Steps for approximately 18 months to 2 years. He also receives a disability pension from Centrelink. He continues to live with his parents on a full time basis and will remain there for the foreseeable future. He pays $20-$25 per week board. He says that his current financial situation is such that he would be unable to fund the preparation of his case.
27 The plaintiff's father David McKenzie gave evidence that he is not in a position financially to fund any such proceedings and that he has been advised by his son's solicitors that to prepare the case fully would cost somewhere in the vicinity of $50,000 to $60,000. At the hearing of this motion, much time was devoted to ascertaining the cost of obtaining medical reports and the necessity for each report. Overall, I accept that the sum of $30,000 is not an unreasonable figure, which reflects costs of the plaintiff obtaining medical reports on the issue of quantum.
28 The plaintiff's parents own their property at Fletcher. It is a four bedroom home and worth approximately $460,000. It is subject to a $90,000 mortgage. The mortgage was originally $70,000 in 2001. It has subsequently been increased and the plaintiff's parents are having difficulty meeting the repayments.
29 The plaintiff's father had an accident in November 2006 when he fell off a ladder. He is not receiving any compensation and is unlikely to do so as he was painting at a relative's premises when his accident occurred. He is re-consulting his specialist next week with a view to being advised as to whether an operation on his knee will be necessary. If he has to undergo an operation he will need at least six to eight weeks to recuperate. He had worked as an electrician on a casual basis through Manpower. For 12 months preceding his accident he had been working five days per week earning $1,249 gross per week. His wife earns $200 per week working 24 hours per week as a school tuckshop supervisor. The plaintiff's parents own two cars of little marketable value. The plaintiff's father gave evidence that the family is having difficulty coping financially. Their savings are exhausted. The plaintiff's father is concerned about his future working life. He is also very worried that he will not be able to keep a roof over their heads and the detrimental affect that would have upon his son, the plaintiff. It must be remembered that it is the plaintiff who had the accident and it is the plaintiff's case, not his parents. I am satisfied that it is likely that the plaintiff will be shut out of litigation if he has to pay for the preparation of his whole case. I also accept, should it be necessary to do so, that his parents are not in a financial position to finance the preparation of his case.
30 The defendant submitted that should a separate hearing on liability be conducted and a finding made in favour of the plaintiff, the liability decision would be interlocutory in nature, pending the determination of damages. The defendant would then require leave from the Court of Appeal in order to proceed and this would well be refused pending a determination of damages and as a result, any perceived savings in costs by conducting a separate hearing on liability would be lost. I accept that if the plaintiff succeeds and no or little reduction is made for contributory negligence, the defendant may decide to seek and obtain leave to appeal or otherwise will also be obliged to await the outcome of the damages hearing. I have also taken into account that if there is no appeal, the damages claim may settle without the necessity of a court hearing. The liability claim may take three days of court time. If no agreement is reached in relation to the plaintiff's injuries, the damages claim could take at least two weeks of court time.
31 The defendant further submitted that if the plaintiff succeeded on liability then he would be entitled to expect the defendant's insurer to meet his past and ongoing expenses, which may be considerable. This would be unfairly prejudicial, in circumstances where the conduct of the proceedings could be delayed while the question of damages is determined and the defendant would have no real prospect of recovering from the plaintiff those expenses paid, in the event of a successful appeal.
32 I have taken all of these matters into account. It is my view that there is utility and economy in hearing the liability question separately. In the exercise of my discretion, the interest of justice favours the separate determination of liability particularly where it is likely that the plaintiff will be shut out of this litigation should it not occur.
33 I make an order pursuant to Rule 28.2 of the Uniform Civil Procedure Rule that the question of liability be determined separately and prior to the issue of quantum. Costs are reserved.