Plaintiff v Defendants [2026] VSC 50 | Case summary

This matter was fixed for trial on 16 February 2025 on an estimate of 10 days. It concerns a transport accident on 13 December 2019 in which the plaintiff's wife was fatally injured. The defendants are the drivers of two vehicles travelling in the same direction in front of the vehicle in which the plaintiff and his wife were travelling. The statement of claim alleges that a towbar assembly fell from the rear of the first defendant's vehicle, was driven over the by the second defendant in his vehicle and was ejected, striking the windscreen and the driver of the plaintiff's vehicle causing loss of control of that vehicle and injury. The first defendant was driving his vehicle to a new owner in the course of his employment.
The plaintiff has sought an adjournment of the trial date for the purpose of joining an additional three defendants, perhaps four, including the employer of the first defendant and various parties responsible for the installation of the towbar assembly and modification of the tray of the truck before delivery to its owner. Since the application made yesterday, a proposed statement of claim has been provided, as requested. It seeks to substitute the first defendant with his employer and owner of the truck being driven by him, and adding two further defendants, a company who modified the vehicle of the employer and the company that inspected and certified that work. The plaintiff and first defendant have reached a resolution of the proceeding concerning the first defendant and consent orders have been made.
The plaintiff has been represented by the same firm of solicitors throughout and by senior counsel from prior to the commencement of the damages proceeding. The statement of claim is dated 26 November 2024 and the writ was issued the same day. The chronology both before and after issue of the writ is not in contention and I will return to the key dates. The application comes about in circumstances where senior counsel long involved in the proceeding has become unavailable for trial and new counsel were briefed on 11 February 2026. In a conference on 12 February 2026, according to the affidavit relied on, 'A view was formed that it was appropriate to join the following parties as defendants... The view was formed based upon the Coroner's finding...'. The Coroner's finding is dated 23 July 2024.
It is not unusual for counsel, whether or not they have had a long involvement in the trial, to become 'jammed'. Nor is it unusual for alternate counsel to be briefed to appear shortly before trial without the benefit of that long involvement. I appreciate the difficulty for counsel coming into a trial after a number of strategic and forensic choices have been made and forming their own views about the presentation of the case. The reasons for the strategic change in this case are unexplained beyond they are the views of different counsel. Clearly a plaintiff is entitled to rely on their legal advice as to the preparation of the case to be presented. Legal advice is provided by both counsel and the solicitors who all have independent obligations under the Civil Procedure Act 2010 (Vic). No doubt counsel, in particular senior counsel, play an important role in forensic trial decisions, but do not do so divorced from solicitor obligations to consider and prepare for the issues in the trial. Solicitors play an active strategic role in preparing matters for trial and engaging counsel. I speak of a solicitor in the corporate sense of firm responsibility. I mean no criticism of the present solicitor personally and have no information concerning the conduct of the proceeding within the firm over time.
As Tsalamandris J said recently in Broadhead v Reliable Discount Movers Pty Ltd:[1]

Plaintiff v Defendants [2026] VSC 50 | Case summary | Zoe

This matter was fixed for trial on 16 February 2025 on an estimate of 10 days. It concerns a transport accident on 13 December 2019 in which the plaintiff's wife was fatally injured. The defendants are the drivers of two vehicles travelling in the same direction in front of the vehicle in which the plaintiff and his wife were travelling. The statement of claim alleges that a towbar assembly fell from the rear of the first defendant's vehicle, was driven over the by the second defendant in his vehicle and was ejected, striking the windscreen and the driver of the plaintiff's vehicle causing loss of control of that vehicle and injury. The first defendant was driving his vehicle to a new owner in the course of his employment.
The plaintiff has sought an adjournment of the trial date for the purpose of joining an additional three defendants, perhaps four, including the employer of the first defendant and various parties responsible for the installation of the towbar assembly and modification of the tray of the truck before delivery to its owner. Since the application made yesterday, a proposed statement of claim has been provided, as requested. It seeks to substitute the first defendant with his employer and owner of the truck being driven by him, and adding two further defendants, a company who modified the vehicle of the employer and the company that inspected and certified that work. The plaintiff and first defendant have reached a resolution of the proceeding concerning the first defendant and consent orders have been made.
The plaintiff has been represented by the same firm of solicitors throughout and by senior counsel from prior to the commencement of the damages proceeding. The statement of claim is dated 26 November 2024 and the writ was issued the same day. The chronology both before and after issue of the writ is not in contention and I will return to the key dates. The application comes about in circumstances where senior counsel long involved in the proceeding has become unavailable for trial and new counsel were briefed on 11 February 2026. In a conference on 12 February 2026, according to the affidavit relied on, 'A view was formed that it was appropriate to join the following parties as defendants... The view was formed based upon the Coroner's finding...'. The Coroner's finding is dated 23 July 2024.
It is not unusual for counsel, whether or not they have had a long involvement in the trial, to become 'jammed'. Nor is it unusual for alternate counsel to be briefed to appear shortly before trial without the benefit of that long involvement. I appreciate the difficulty for counsel coming into a trial after a number of strategic and forensic choices have been made and forming their own views about the presentation of the case. The reasons for the strategic change in this case are unexplained beyond they are the views of different counsel. Clearly a plaintiff is entitled to rely on their legal advice as to the preparation of the case to be presented. Legal advice is provided by both counsel and the solicitors who all have independent obligations under the Civil Procedure Act 2010 (Vic). No doubt counsel, in particular senior counsel, play an important role in forensic trial decisions, but do not do so divorced from solicitor obligations to consider and prepare for the issues in the trial. Solicitors play an active strategic role in preparing matters for trial and engaging counsel. I speak of a solicitor in the corporate sense of firm responsibility. I mean no criticism of the present solicitor personally and have no information concerning the conduct of the proceeding within the firm over time.
As Tsalamandris J said recently in Broadhead v Reliable Discount Movers Pty Ltd:[1]

Plaintiff v Defendants

At a glance

Court

Decision date

Before

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Judgment (19 paragraphs)

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Legislation Cited (2)