Nominal Defendant v Niko Cencic

LOWER COURT JURISDICTION : District Court LOWER COURT 6128/99 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: H G Shore Respondent: R Goodridge SOLICITORS : Appellant: Sparke Helmore Respondent: Firths - The Compensation Lawyers CATCHWORDS : Tort - negligence - where trial judge ordered separate hearings of liability and damages - assessment of damages - appeal allowed in part. Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 CASES CITED: Simmonds v Spooner (No 3)(unreported, NSW CA, 28/03/95) Stead v State Government Insurance Commission (1986) 161 CLR 141 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liquidation)(1999) 73 ALJR 306 DECISION : 1. Appeal allowed (in part); 2. Judgment below set aside; 3. Order a new trial limited to damages; 4. No order made as to costs of appeal; 5. Respondent is to have a certificate under the Suitors Funds Act 1951; 6. Costs of the first trial to abide the result of the new trial.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

FACTS The Nominal Defendant represented Mr Magro, the driver of a car that collided with the respondent's car. The respondent successfully sued the Nominal Defendant at trial and was awarded $260,875 damages. The Nominal Defendant appealed against the trial judge's decision on both liability and quantum. A further ground of appeal contended for was that the trial judge should not have ordered a separate hearing of liability and quantum and that this error necessitated a new trial.

HELD per Meagher JA (Handley & Powell JJA agreeing): (i) The trial judge's decision to have separate hearings on quantum and liability was a discretionary one. No error is apparent that warrants appellate intervention. (ii) There is no basis to disturb the trial judge's finding on liability. (iii) The trial judge's decision on damages should be set aside.

ORDERS 1 Appeal allowed in part. 2 Judgment below set aside. 3 Order a new trial limited to damages. 4 No order made as to costs of the appeal. 5 Respondent is to have a certificate under the Suitors Funds Act 1951. 6 Costs of the first trial to abide the result of the new trial.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Thursday, 3 May 2001 THE NOMINAL DEFENDANT v CENCIC JUDGMENT 1 MEAGHER JA: This is an appeal against a verdict obtained by a plaintiff (the present respondent) against the appellant Nominal Defendant in a District Court action. The learned judge, his Honour Judge W. Delbridge Hosking QC, awarded the plaintiff, Mr. Cencic, the sum of $260,875. Both liability and damages were in issue. The action concerned an accident which occurred at the intersection of Trevor and Sheffield Streets at Merrylands (a suburb of Sydney). 2 The appellant Nominal Defendant in effect represents a Mr. Magro, the driver of the vehicle. 3 The respondent plaintiff was driving a Ford Laser east along Sheffield Street and approaching the intersection of Trevor Street, intending to make a right hand turn into Trevor Street. Trevor Street formed a terminating T-intersection with Sheffield Street. Mr. Magro was travelling in Trevor Street towards Sheffield Street, and was intending to turn right into Sheffield Street. Facing Mr Magro, at the junction of the two streets, was a "Give Way" sign. The vehicle being driven by Mr. Magro was unregistered and uninsured. 4 But a particularly vigorous attack was made by the appellant on his Honour's decision to have separate hearings on liability and quantum. The way it was put in the appellant's written submissions is as follows: Notwithstanding that the trial came on for hearing upon the combined questions of liability and quantum, his Honour chose to order separate hearings with the damages hearing to immediately follow the determination of the liability hearing. That course was not only opposed on behalf of the appellant. It arose as a result of his Honour's own suggestion and upon his own motion. It was then enthusiastically supported by the respondent. 5 That way of putting the matter obscures many relevant factors. One is that there is a well-known discretion in a trial judge to proceed on separate issues, although it is clear enough that it should not be done unless there is good reason to do so. Another is that his Honour sought the views of both counsel before making his order. Yet another is that there was a very good reason to do so; Mr Rodriguez was going to be an important witness, he attended court with reluctance and subject to a subpoena, he had a seriously ill wife to attend to, and he had no evidence to contribute to the question of quantum; and his Honour believed that the trial on liability was short. And yet another was that if his Honour did not make the order off his own bat the plaintiff's counsel was on the point of requesting him to make such an order.

6 There is no doubt, as Mr. Shore, learned counsel for the appellant, stressed, that the normal rule is that all questions of liability and damages should be heard together; a departure from that rule should occur but rarely, and no judge should order it except with great caution. These principles are laid down in a series of decisions: Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304, Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, Simmonds v Spooner (No 3) (unreported, NSW CA, 28/03/95) and Stead v State Government Insurance Commission (1986) 161 CLR 141. Nonetheless, the trial judge has a discretion to make an order severing the hearing of liability and damages. 7 Whether or not the judge in the present case should have exercised the discretion in favour of severance is another matter. That question should be decided as at the time when the offer was made, not at the time of the hearing of the appeal, when we all have the benefit of hindsight. At the relevant time, then, his Honour had to consider the convenience of the witness to whom I have referred; he was told that the liability component of the case was very short (a misrepresentation of some enormity); on that issue, it seemed that all which was involved was deciding whether Mr. Magro's vehicle did or did not stop at a "Give Way" sign - hardly, one would have thought, an involved question; whereas, so it was said, in contrast to the shortness and simplicity of the liability question, the damages component of the case (which counsel frequently called the "medical question") was both long and involved. (In fact the latter question was about the same size as the former question, but initially that is not what the judge was told). 8 In these circumstances, his Honour might well have thought, as he apparently did, that all obstacles to his devoting himself to the difficult problem should be removed. 9 I might add that, if I were in his position I should have decided the matter differently, but that is another matter, and one of no relevance. 10 For these reasons, in my view this ground of appeal must fail. 11 His Honour heard each question separately, and, broadly speaking, found each of them in favour of the plaintiff, Mr Cencic. 12 On the issue of liability, his Honour's conclusion in favour of the plaintiff seems to me to be inevitable. It all revolved around the question of whether Mr Magro stopped at the "Give Way" sign (as he contended) or not (as the plaintiff contended). His Honour found the plaintiff a truthful witness. He also found that the only independent witness, the Mr Rodriguez to whom reference has been made, was also a witness of truth. He further found that Mr Magro was an unimpressive witness. Mr Magro begged the plaintiff not to tell the police. He offered to repair the plaintiff's vehicle at no cost. And, in reply to the plaintiff's question, "Why did you go through it?" (ie. the "Give Way" sign), Mr Magro replied "Because I did not see you." I shall not recite the rest of the evidence on liability, because the combined effect of the admissions I have just referred to demanded an affirmative finding in the plaintiff's favour on the issue of liability. That the plaintiff's account contained some internal inconsistencies, and that his Honour's account of the accident contained some misapprehensions, do not derogate from this conclusion. 13 However, on the question of damages, a different picture presents itself. The plaintiff's case was that, although before the accident (which took place on 20 March 1997) he suffered headaches, they were of no great severity, whereas immediately after the accident his headaches were much more serious, and rather different in kind. This assertion could not but raise some questions. One was why his wife was not called to substantiate his story. Another was why no pre-accident medical reports were tendered. The diligence of the defendant's solicitors unearthed that he went onto a Department of Social Security Sickness Benefit in or about mid November 1996, when he also obtained a medical certificate of unfitness for work for 3 months. He was experiencing cluster headaches. He obtained another 3 month certificate on 19 December 1996. In January 1997 (just 2 months before the accident) he was referred for a neurological opinion from Dr. Somerville. By 7 February 1997 (just one month before the accident) he was certified as unfit for any work (part-time or full-time) for a further 3-6 months because of chronic headaches. He had been treated by a number of psychiatrists, but the plaintiff's counsel did not tender any of these reports. 14 A certain Dr Becker had apparently treated Mr. Cencic both before and after the accident - the only doctor to have done so. He opined that the plaintiff's "ongoing disability cannot be attributed to his motor vehicle accident as his previous spinal condition is reason for his complaint of pain." Despite the plaintiff's best endeavours to suppress this document, the appellant, having obtained it by subpoena, tendered it. His Honour, without explaining why, treated it as having no evidentiary value. 15 In these circumstances, I think his Honour's decision on the question of damages cannot, in the light of the principles laid down in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in Liquidation)(1999) 73 ALJR 306, stand. 16 In my view, the following orders should be made:

1. Appeal allowed (in part).
2. Set aside judgment below.
3. Order a new trial limited to damages.
4. Make no order as to costs of appeal.
5. Respondent to have a certificate under Suitors Fund Act 1951.
6. Costs of the first trial to abide the result of the new trial. 17 HANDLEY JA: I agree with Meagher JA. 18 POWELL JA: I agree with Meagher JA. ******

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