Procedure - Civil Proceedings in State and Territory Courts - Separate Decision or Determination of Questions and Consolidation of Proceedings - Separate Decision or Determination of Liability and Damages - Personal injury matter - Order to be made only in clear cases - Application refused.

Judgment Number: [2016] TASSC 9

HOLLY RAPER (by her mother and litigation guardian ELAINE RAPER)

1. The defendants have applied for an order that the question of liability in an action for damages for personal injury be tried and determined before any other question in the proceeding.
2. The background is as follows.
3. By her writ issued in November 2014 the plaintiff claims damages in respect of a catastrophic head injury which she suffered on 30 December 2011 when the quad bike she was riding in the course of her employment on the defendants' farm at King Island hit an unmarked drain and crashed. According to the statement of claim, the injury was the result of the negligent acts and omissions and breaches of statutory duties by the plaintiff's employers. In particular, it is alleged that the employers failed to provide a helmet to the plaintiff; required the plaintiff to ride the quad bike when it had faulty brakes and a faulty steering mechanism; failed to adequately instruct the plaintiff as to the use of the quad bike and failed to provide the plaintiff with a warning as to the presence of the drain. The defendants deny liability and in the alternative say that the plaintiff's damages should be reduced for her negligence in riding the quad bike at an excessive speed and, contrary to the plaintiff's assertion, failing to wear a helmet which was available and which the plaintiff had been instructed to wear.
4. The trial of the action is likely to be lengthy, expensive and complex for a number of reasons. The only witness to the accident was the plaintiff and she is unable to give evidence because of the severity of her injury. According to the particulars of claim, the plaintiff was aged 23 at the time of the accident. She is a United Kingdom resident and had obtained tertiary qualifications suiting her to a career in teaching. She had travelled to Australia on a temporary visa and had obtained work on the defendants' King Island farm. Following the accident the plaintiff was hospitalised in Tasmania. She was able to return to the United Kingdom after about 15 months and then spent the next 12 months in a hospital near to her parents' home. Following her discharge from hospital the plaintiff was moved into a garage at her parents' home which had been set up to be suitable to accommodate the plaintiff who is bedridden and in an almost vegetative state. The plaintiff remains in the converted garage receiving considerable help from her parents, her family members, her friends and numerous health workers. The total of the claim is $40,621,125.
5. There are significant areas of dispute in relation to the assessment of damages. I provide some examples. There is a dispute as to the discount rate to be applied to future losses taking into account United Kingdom economic conditions. There is a dispute as to the plaintiff's life expectancy. There is a dispute as to the cost of providing suitable accommodation for the plaintiff.
6. In June 2015 an order was made by consent setting the action down for trial to commence in April this year. At the same time a number of procedural orders were made by consent to ensure that the parties were ready to proceed to trial by the allocated date.
7. In December 2015 the plaintiff's solicitors submitted a draft timetable for the conduct of the trial. It was proposed that the hearing would commence in the United Kingdom where opening addresses will be made in the presence of the plaintiff's parents and where numerous United Kingdom based witnesses will give evidence concerned with the assessment of the plaintiff's damages. The trial would then move to Tasmania where mostly Australian based witnesses will give evidence on the question of the liability of the defendants and the question of whether, and if to what extent, the plaintiff was contributorily negligent. If the hearing runs to the plaintiff's timetable there will be about a two week hearing in the United Kingdom followed by a break of about one week before the hearing resumes in Tasmania for about another two weeks.
8. The parties have exchanged their expert witness statements concerning liability. The plaintiff has delivered her expert witness statements relating to the assessment of damages. The defendants are not sure whether all of their expert witness statements relating to the assessment of damages can be to hand by the start of a trial in late April. The defendants say that they are confident that all such witness statements will be delivered ready for a trial by August this year at the latest.
9. On 27 January the defendants filed their application for an order that the issue of liability be tried and determined before any other questions in the action. On 2 February the allocated trial judge imposed a timetable requiring the filing of written submissions on the application by 18 February. The trial judge referred the hearing of the application to me.
10. The Supreme Court Rules 2000 (Tas), r 559 empowers the Court to make orders for the trial of any question separately from any other questions. Pursuant to the rule the Court is required to take into account the advantage of hearing evidence without undue delay and the costs which may be incurred depending upon whether or not a separate trial is ordered.
11. I set out some matters of principle applicable on an application for a split trial.
12. Ordinarily, all issues in a proceeding are decided at the one time. Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141. "Single issue trials should ... only be embarked upon when their utility, economy and fairness to the parties are beyond question." Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170]. "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have ... had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap." Tepco at [168]. "A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's rather than the parties, interests." Tepco at [169]. The power "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". Tallglen at 141-142. The separate determination of an issue may prove to be appropriate where the determination will resolve the entirety of the proceedings or will have the effect of substantially narrowing the field of controversy or where the resolution of the separate issue carries with it a strong prospect that thereafter the parties will be able to resolve the dispute without further litigation. Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215 at [7]. Conversely, the separate determination of an issue will rarely be an appropriate procedure where there are intertwined issues of fact or law between the separated question and the other questions and where there is a commonality of witnesses particularly where issues of credit may arise. Idoport at [7]. The overarching purpose of case management, to ensure that proceedings are conducted and resolved justly and efficiently, must be taken into account. The discretion is to be exercised judicially and is not fettered by rigid rules. There is no closed list of considerations.
13. The defendants accept that, even with the advent of case management principles having the overarching purpose of ensuring that cases are resolved justly and efficiently, the Court still begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time. The defendants, who want the trial to be bifurcated, carry the onus. In the language of Kirby and Callinan JJ in Tepco at [170], the defendants must show that the "utility, economy, and fairness" of the trial of the separate issue is "beyond question".
14. The liability issue can be heard in Tasmania with a hearing time, on the plaintiff's estimate, of two weeks and on the defendants' estimate, about one week. The hearing of the evidence on the quantification of damages, which is likely to occur in the United Kingdom, will, according to the defendants, occupy approximately three weeks. The defendants say that considerable expense will be avoided if the defendants succeed on liability and that such expense might be avoided if, after a finding on liability in the plaintiff's favour, the parties are able to reach agreement on the quantification of damages. The defendants say that the costs of the assessment of damages might be reduced if following a finding on liability the parties are able to further narrow the field of controversy. It was also submitted that if the trial is not split and commences at the allocated time there may be an increase in costs as the defendants may not have all of their evidence on the assessment of damages ready to be received in the United Kingdom immediately upon completion of the plaintiff's United Kingdom evidence. The result would be a second trip away for the presentation of the defendants' evidence on damages.
15. Counsel for the plaintiff submitted that if there is delay in hearing the evidence of the United Kingdom based witnesses, the witnesses will need to be briefed again with an increase in costs.
16. Clearly, there will be a significant saving by reason of a split trial if the defendants wholly succeed on the issue of liability. However, I do not accept that if there is a finding of liability in favour of the plaintiff that there is a realistic prospect that the quantum of the damages to be awarded might be agreed, or at least the field of controversy substantially narrowed. The parties have already undertaken a two day mediation session conducted by former High Court Justice the Honourable Ian Callinan QC and there has been no suggestion that any aspect of the quantification of the plaintiff's damages has been agreed or is close to agreement.
17. Compared to the extra expense which might result from an order that the question of liability be separately determined the potential cost saving, if the issue of liability is resolved in favour of the defendants, is massive.
18. It follows that an order for a separate trial on the ground of potential cost savings, depending upon the other relevant considerations, might be appropriate.
19. Next, the defendants say that there is a clear demarcation between the issue of liability and the questions arising on the assessment of the damages to be awarded. Counsel for the plaintiff disagreed. He said that two of the plaintiff's witnesses will be required to give evidence on both liability and damages because a major issue in the case is whether it would have made any difference to the plaintiff's injury had she been wearing a helmet. Counsel for the plaintiff said that, because of this issue, hospital records, which also go to quantum, will need to be tendered and scrutinised on the question of liability.
20. Although there will be some overlapping of witnesses and evidence, counsel for the plaintiff did not assert that the overlapping evidence was likely to be controversial nor was it suggested that the duplication of witnesses and evidence might materially increase the expense in the context of the overall cost of the litigation.
21. Although there is some overlap, there is sufficient demarcation between the issues and evidence going to liability and the other issues in the case so that, depending upon the other considerations, a single issue trial might be appropriate.
22. Finally, the defendants say that if a separate determination on the issue of liability results in delay, the disadvantage to the plaintiff is mitigated by the fact that she is in receipt of workers compensation payments and has received a large advance payment to assist with her additional needs.
23. Despite the payments the plaintiff is living in a converted garage at the home of her parents. The final quantification of the amount of damages to be awarded will determine the quality of the plaintiff's future accommodation and the amount generally which can be spent to provide for the plaintiff's future comfort and needs.
24. Any delay seriously disadvantages the plaintiff in that it defers the realisation of the potential for the plaintiff to have a greater level of care and comfort than she currently has.
25. Besides the potential for delay, there are other factors which count against the defendants' application for a split trial.
26. The parties have prepared on the basis that all issues will be determined in a single trial and the application for a separate trial has not come until after the parties' preparation has significantly advanced. Although in Arnott v O'Leary [1998] TASSC 15, Cox CJ said that in such a situation and in the circumstances of the case before him the plaintiff was "entitled to insist upon the trial of all unresolved issues ... and should not be forced to engage in piecemeal litigation", the statement was a statement of conclusion on the facts and not a statement of general principle. I have regard to this feature, not as being decisive, but as strongly favouring the rejection of the defendants' application.
27. The bifurcation of the trial carries with it a risk that there will be further fragmentation of the proceedings in the event of appeal.
28. Even if the refusal of the application results in the trial being delayed, the potential delay is not so extensive as to give rise to any concern that the fair trial of the action would be prejudiced (r 559(2)(a)).
29. Although there may be a prospect of having a substantial cost saving by liability being separately determined (r 559(2)(b), it is not possible on the material before me to assess the prospect other than as speculative.
30. Although there is a potential large cost saving in the separate determination of the issue of liability and there is a clear (albeit not complete) demarcation between the issues sought to be separately tried and the other issues in the case, the factors which I have listed as counting against the application outweigh these features. It follows that I am not persuaded that the utility, economy and fairness of splitting issues is so strongly apparent as to justify the making of the order sought.
31. The defendants' application for the separate trial and determination of the question of liability is dismissed.