Utiger v Brown and Venteb Pty Ltd [2002] VSC 306

9. On 20 April 2001, the plaintiff was assisting Mr Brown to unload plasterboard from a truck and in so doing, Mr Brown dropped a piece of plasterboard and as a result, the plaintiff suffered a moderately severe injury to his lumbar spine.

12. As a result of the said incident, the plaintiff has incurred losses and expenses and suffered economic loss.

15. The plaintiff asserts in his statement of claim that the incident was caused by the negligence of Mr Brown and Ventab.

18. The plaintiff does not assert that there was any special relationship existing between him and the defendants at the relevant time, and accordingly, it would be necessary for him in the proceeding to establish that at the relevant time, the defendants, or one of them, owed him a duty of care. See Richards v The State of Victoria [1969] VR 136 at 140.

21. The plaintiff's claim is that he was an independent contractor and that the defendants did owe him a duty of care. The duty arose by reason of the principles established in Donoughue v Stevenson [1932] AC 562. See, by way of example, Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 30 et seq per Mason J.

24. The plaintiff sought trial by judge alone but the defendants have filed a notice seeking trial by jury. At present, the trial will be by jury.

27. In their amended defence filed 21 March 2002, the defendants have put the plaintiff to his proof, alleged contributory negligence and finally, pleaded that the plaintiff was a worker within the meaning of the Accident Compensation Act 1985 and because the plaintiff has not followed the procedure laid down by s.134AB of the Act, the proceeding is a nullity. It is pleaded that the plaintiff has not made an application pursuant to s.134AB(4) of the Act, no impairment assessment has been made and the WorkCover Authority has not given consent to commence the proceeding.

30. The plaintiff seeks the resolution of the matters raised by the defendants in their defence as a preliminary question prior to the trial of the proceeding.

33. The defendants oppose the splitting of the issues in the trial, principally on the ground that many of the factual matters to be considered and determined in the preliminary hearing would also have to be considered and determined at the trial.

(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;

(b) different questions be tried at different times or places or by different modes of trial."

44. Under the sub-rule, the Court has the power to order that questions of fact or law or mixed questions of fact and law be determined as a preliminary matter. Also that the question be decided by a different mode of trial. As a general proposition, the procedure should not be used except in clear and straightforward cases where a simple question can be identified in relation to facts which are not really disputed and the decision could have a substantial effect upon the outcome of the proceeding.

47. The Full Court in Dunstan v Simmie & Co Pty Ltd [1978] VicRp 62; (1978) VR 669 at 671 said -

"Nevertheless it remains true that it is a power to be exercised with great caution. It is not desirable to circumscribe the exercise of the discretion to make an order under the power and it is perhaps particularly desirable that the power should be invoked in building cases so long as there are appropriate issues to be isolated. Nevertheless, although every case must depend upon its own facts, it will as a general rule only be appropriate to order that a preliminary issue be isolated for determination before trial where the determination of the issue in favour of the plaintiff or the defendant will put an end to the action or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense."

51. In Verwayen v The Commonwealth [1988] VicRp 29; [1988] VR 203 at 206, the Full Court quoted with approval the above passage and observed -

"Even now it must be rare for a case to present itself where it is appropriate for different modes of trial to be employed for different issues." (Emphasis added).

"It must also be very rare for it to be appropriate to order that a preliminary issue be isolated for determination before trial."

57. Despite the dicta, in the 1980s and early 1990s, a more flexible and relaxed approach was taken to applications for determination of preliminary issues, but experience showed that it is an appropriate procedure only in the clearest cases. There are indeed many problems that can arise where preliminary issues are heard and determined. This is especially so when facts are found on disputed evidence involving findings of credit when the case has to proceed further to decide other issues of fact, some of which overlap. Problems can arise when findings are made in relation to credit at the preliminary hearing and the same witness is called at the later hearing. Often, findings on the preliminary hearing did not have any significant impact on the outcome of the proceeding.

60. The plaintiff's counsel, Mrs L. Bird, submitted that the questions raised by the defence should be heard as a preliminary matter because in the event of the defence being established, judgment would be given against the plaintiff, thereby avoiding substantial court time and expense. On the other hand, if the defence was to fail at the preliminary hearing, then it would be necessary to decide the issues raised by the plaintiff's claim, which would include all the issues in a common law negligence claim.

63. More recently, judges have again emphasised the difficulties and problems that can arise if issues are decided by way of preliminary hearing, especially where there are disputed questions of fact and issues overlap.

66. In Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 75 ALJR 775, Kirby and Calinan JJ at p.806 made reference to the problems of limiting issues to be tried. They said -

"In the light of experience in this case, what was there said should be re-stated with emphasis. (See Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180). 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, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others and they all overlap." (Emphasis added).

70. Further, their Honours pointed out that sometimes there are appeals from determinations made and this has the effect of substantially extending the life of the litigation.

73. In Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 at para 25, Byrne J referred to a number of factors relevant to the making of the order for preliminary determination.

76. His Honour emphasised the difficulties that can arise where the preliminary hearing involves disputed facts and cross-examination of witnesses. Sometimes the evidence of a witness covers more than the issues in the preliminary hearing and yet the cross-examining counsel will be confined to the issues in the preliminary hearing and denied the opportunity of attacking the witness on other issues which may be relevant not only to the issue but also to credibility.

79. He also emphasised that any questions to be answered must be formulated with particularity and referred to the Full Court decision of Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 at 340. In addition, his Honour drew attention to the fact that often the judge asked to order the preliminary trial does not have a familiarity with the evidence which might be led and hence may not appreciate the full implications of severance.

82. He observed that the severance of a trial by ordering particular questions to be determined "may lead to unfair advantage or disadvantage to a party or may prove to be illusory".

85. The plaintiff seeks a preliminary determination of the questions raised by the defence. The questions raised by the defence involved mixed questions of law and fact. The Accident Compensation Act 1985 is an Act bristling with difficulties of construction and those observations are particularly pertinent to what is meant by the word "worker" in s.5, and ss.8 and 9 which deal with contractors and independent contractors. In addition to the difficulties involved in construing the provisions of the Act which are, of course, questions of law, there are the factual matters that will have to be considered and determined in relation to the particular question whether the plaintiff was a worker, within the meaning of the Act, at the time when he suffered his injury. This will involve considering the facts concerning his relationship with his partner, the type of business that they operated, and his relationship with the defendants and, in particular, the second defendant, Venteb. Some of the facts may be disputed and one would expect that the plaintiff will be cross-examined in relation to these questions. The point made by Byrne J that cross-examining counsel will be deprived of the opportunity of cross-examining the plaintiff in relation to the issues in the proceeding, on the preliminary trial, may cause injustice to the defendants. Often in the Court's experience, a plaintiff gives evidence in relation to issues of causation, injury and damage and sometimes his credibility is affected by the evidence given on those issues. Those issues would not be relevant in a preliminary trial. Hence, on the preliminary hearing, the defendants may be deprived of the opportunity of attacking the credit of the plaintiff in respect to other issues. In addition, it would be open to the defendants to call evidence in relation to the issues of fact at the preliminary hearing and the factual matters may take some time to be heard and determined.

88. The judge would have to give reasons and make findings of fact. The judge may also express views on credibility. Sometimes the problems associated with evidence having to be repeated at the trial, problems associated with findings of credibility and overlapping factual disputes can be avoided by the parties agreeing that the same judge hear the trial as heard the preliminary trial and that his findings on the evidence in the preliminary trial will be accepted in the main trial.

91. This course cannot be followed in this matter because the trial of the proceeding is by a jury.

94. But assuming that the plaintiff was successful on the preliminary hearing, what would be the position at the main trial in relation to matters already canvassed in the preliminary trial?

97. The plaintiff has to prove that the defendants, or either of them, owed him a duty of care at common law in accordance with the principles stated in Donohue v Stevenson, supra. Whether or not either defendant owed a duty of care would depend upon the circumstances and it would be necessary at the main trial to call evidence of the nature of the plaintiff's partnership, business and the relationship of working for the defendant, Venteb. Realistically, this would involve the calling of the same evidence that was called at the preliminary hearing. Whether or not there is a duty of care is ultimately a question of law for the trial judge. See Benson v Lee [1972] VicRp 103; (1972) VR 879. Of course, if there is any disputed fact which is relevant to the issue, then that fact must be decided by the jury. The trial judge would have to make a ruling on the duty of care at some point during the trial, no earlier than at the end of the plaintiff's case and maybe just prior to counsel's address to the jury. The judge would have to give reasons for his conclusion. On any view, he would have more evidence than the evidence which was before the judge on the preliminary hearing, namely, evidence from the plaintiff and others concerning causation, injuries and damage. The additional evidence may have an effect upon the credibility of the plaintiff. There is the risk that there could be inconsistent findings between the judge who heard the preliminary matter and the judge at the trial.

100. In my view, this case is not a suitable vehicle for the determination of issues in a preliminary trial. There is not a clear line of demarcation between the issues, and the determination of an issue in the preliminary trial is not likely to save much time or expense. Secondly, the defendants will be deprived of an opportunity at the preliminary trial to test the credibility of the plaintiff in relation to other issues which may have a significant effect upon his credibility and this, in my view, is likely to cause injustice. I say that because, in my view, there will be a real contest at the preliminary hearing in relation to the plaintiff's partnership, business and relationship with the defendants. Further, there is the risk of inconsistent decisions in relation to some facts.

103. Whilst I readily concede the submission by Mrs Bird on behalf of the plaintiff that the plaintiff is in a difficult position and would like a determination promptly and with little expense on the question of whether the Accident Compensation Act does apply to his claim, the fact is that there are a number of features about that course which would not be fair to the defendants. Further, there is considerable overlap on factual matters and there is no clear line of demarcation between the issues.

106. Accordingly, the plaintiff's summons should be dismissed.

109. Subject to submissions of counsel, I propose to make the following orders -

(i) That the plaintiff's summons filed 21 June 2002 is dismissed.

(ii) That the plaintiff pay the defendants' costs of the summons.

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