Supreme Court New South Wales

• Medium Neutral Citation: Nettleton v Rondeau [2013] NSWSC 1321
• Hearing dates: 29 August 2013
• Decision date: 29 August 2013
• Jurisdiction: Common Law
• Before: Hall J

Decision

(1) Pursuant to rule 28.2 of the Uniform Civil Procedure Rules, the question of liability be separately determined from the question of damages.

(2) Costs of the application are costs in the cause.

• Catchwords: PROCEDURE - application under 28.2 UCPR for separate determination of liability and damages - plaintiff sustained complete paraplegia to the T10 spinal cord level - plaintiff's injuries sustained 19 months before the hearing date of the application rendering uncertain his future employment prospects - in particular, uncertainty as to whether plaintiff will continue in post-accident employment - no suggestion of overlap of issues or of evidence - whether practical and proper course for issues to be separately determined - no countervailing circumstances against severance - application granted
• Legislation Cited: Civil Procedure Act 2005; Uniform Civil Procedure Rules, r 28(2)
• Cases Cited: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125; Hawkins v New Mendp Engineering Limited [1963] 3 All ER 228; Idoport v National Australia Bank Ltd [2000] NSWSC 1215; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; McKenzie v Downing [2008] NSWSC 69; Perre v Apand Pty Ltd (1999) 198 CLR 180
• Category: Interlocutory applications
• Parties: Bruce Nettleton (Plaintiff); Jocelyn Germaine Rondeau (Defendant)
• Representation: Counsel: AS Morrison SC (Plaintiff); J Guihot (Defendant); Solicitors: Stacks Goudkamp (Plaintiff); Moray & Agnew (Defendant)
• File Number(s): 2012/308746

Judgment

1 HIS HONOUR: These proceedings were commenced by way of Statement of Claim, and the plaintiff now proceeds by way of Amended Statement of Claim filed 29 November 2012, in which he claims damages in respect of a motor vehicle accident, said to have occurred on 14 January 2012 while the plaintiff was cycling, and involving another motor vehicle.

2 The judgment is sought by the plaintiff on two alternative bases. As is made plain in the Amended Statement of Claim, the application, or determination, has been brought by way of notice of motion on behalf of the plaintiff filed 26 June 2013, in which an order is sought under rule 28.2 of the UCPR that the question of liability be separately determined from the question of damages.

3 In support of that application reliance is placed upon the plaintiff's affidavit, affirmed on 28 August 2013, and the affidavit of Mr Thomas Goodcamp, solicitor, affirmed on 28 August 2013. The defendant has relied upon the affidavit of Michelle Landers, solicitor, sworn on 19 July 2013.

4 It is, briefly, necessary to record some of the factual matters.

5 The plaintiff, at the time of his accident, was employed by ANZ Banking Corporation, in the role of Global Head of the ANZ Corporate Advisory Business, described by the plaintiff in his affidavit as an extremely high pressure job which required clear thinking and an ability to make important decisions. It's clear that he was a very well paid employee at the time of his unfortunate accident.

6 The plaintiff sustained a complete paraplegia to the T10 spinal cord level. The plaintiff has returned to employment since the accident and is working with ANZ.

7 In his affidavit he said that he has been unable to perform at the same level as he did prior to the accident. He stated, in paragraph 10, that his capacity to continue working is extremely uncertain. In particular, he referred to the management of pain as being a problem, in particular the impact it has had on his work capacity, and it results in him spending less hours in the office than previously, and he needs to rely on medications.

8 The plaintiff has said in the affidavit, paragraph 20, that given his ongoing difficulties in coping with pain, and the fact of his daily care regime which impacts upon the number of hours he can work, he is currently of the belief that a full and accurate assessment of what the future holds, in terms of his employment, can not be made at the time of his affidavit, and he said that he is reluctant to have the damages side of his claim heard until such time that he has more certainty in relation to his ability to continue working, and requests that an order for a separate trial be made.

9 In support of the application is a copy of the report of Dr Susan Rutkowski, rehabilitation physician, dated 8 January 2013. At pages 3 to 4 Dr Rutkowski addresses the pain issues affecting the plaintiff. She stated in that report that in her opinion the plaintiff is unable to continue working as a senior banking executive, the position he held at the time of the accident, and that he is likely to have minimal earning capacity, should he retire from the ANZ Bank, as he would not be able to function sufficiently for a similar future employer, for the reasons stated in the report.

10 In the present application Dr Morrison, who has appeared on behalf of the plaintiff, has acknowledged that the general policy is not to split liability and damages as issues in proceedings, and has drawn my attention to the decision of Harrison AsJ in McKenzie v Downing [2008] NSWSC 69, in which her Honour in that case did order a separate determination of liability and damages under rule 28.2, in the particular circumstances of that case.

11 The application is opposed by the defendant, Mr Guihot, of counsel, who has raised a number of matters. He has observed that, firstly, the original basis for the application was, essentially, the uncertainty as to whether the plaintiff would be admitted into the Lifetime Care scheme. That matter has been resolved and is no longer a basis for this application.

12 In terms of deferring a hearing on damages, and to allow liability to be determined separately, Mr Guihot observed that this Court is commonly called upon to determine various degrees of certainty or uncertainty of events relevant in damages claims, and it is not a question of the need to wait for certainty before issues can be determined. He observed that it is necessary for the court, often, to undertake what has been referred to as the Malec v Hutton assessment, and to adjust damages according to the various degrees of probability, and citing, as an example, claims by infants, and cases where the prospects of surgery in the future may, but can not with any certainty be determined.

13 Accordingly uncertainty, he said, is not a basis for splitting liability and damages, in this case referring to the question as to whether or not the plaintiff will remain in employment, or not, so far as the future is concerned.

14 He also sought to distinguish the McKenzie decision, to which I have referred. This is not case of the plaintiff not receiving a verdict. The plaintiff is likely to receive a verdict on one or other of the bases sought in the proceedings.

15 It is necessary to have regard to both the relevant principles and the facts in the present case in applying those principles to an application for a separate trial of liability and damages. In exercising the discretion under rule 28(2) it is essential the court gives effect to the provisions of s 56 of the Civil Procedure Act. By s 56(2) the Court is obliged to seek to give effect to the overriding purpose of that Act and the rules. The commencing point for the consideration of an application such as the present is, as Dr Morrison has acknowledged, that all issues in the proceedings should be disposed of at one time. In that respect I refer to the decision of Johnson J in Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at paragraph 5. Additionally there are other decisions, including Perre v Apand Pty Ltd (1999) 198 CLR 180, at paragraph 436.

16 Those were cases made, of course, prior to the Civil Procedure Act but, nonetheless, they do state the general position that I am to apply. I, accordingly, proceed upon the basis that it does remain the case that determination in favour of a separate trial is unusual, and perhaps exceptional, and should only be made in the appropriate circumstances.

17 In Idoport v National Australia Bank Ltd [2000] NSWSC 1215 Einstein J set out the principles to be applied in considering the determination of separate questions. I will not here repeat everything his Honour said, but I have regard to the various principles recorded in paragraph 7 of his Honour's judgment.

18 Accordingly, the onus is upon the plaintiff to establish that the normal position should be departed from, such as to warrant the making of the orders sought.

19 It is true, as Mr Guihot observed, that this Court often deals with matters requiring determination of issues surrounding which there is uncertainty, and it is a function of the Court to evaluate those uncertainties in determining damages. However, it is necessary to take into account, in this case, that the plaintiff's accident happened only last year and, in a sense, it is early days, so far as the history of his case is concerned, and in relation to issues in some cases a practical course, and a prudent one, may be that the damages issue should be deferred. In this case the issue is very much bound up with the question of the basis upon which future economic loss ought to be assessed.

20 In circumstances where it is a practical and a proper course to order a separate trial, such an order should only be made if there are no countervailing circumstances which would indicate that there should not be severance.

21 An example of this approach can be seen in the decision some years ago, in the English Court of Appeal, Hawkins v New Mendip Engineering Limited [1966] 3 All ER 228. That involved a determination of damages in a case of a 27 year-old injured plaintiff. There, a period, I think, of about three years had elapsed from the date of the accident to the date of trial, Wynn J observed in that case, at 232, and I quote:

"It is no criticism of the learned judge if I add that it appears to me that one or other of the parties to this action ... might well in this particular case have availed themselves of the provisions of Supreme Court Ordinance 36, rule 34, and asked the judge, in the interests of justice, to postpone the trial on the issue of damages, or to adjourn the case for consideration of that issue until some five years after the accident, either by himself or another judge."

22 And a little later:

"... an order for postponement of the trial on the issue of damages in the interests of justice, until as time passed, it could have been far better known whether this young man is likely or unlikely to become a victim of major epilepsy.

It seems to me that, while there are many considerations which militate against any general practice of separate determination of issues on liability and quantum, this is a clear-cut case in which there could be nothing to be said against the idea of postponing the trial on those terms. As it is, the matter is one which has to be dealt with on a footing of future uncertainty. That is regrettable, but I think that on the evidence the learned judge came to a proper award ..."

23 In this case it has not been suggested that there is any overlap of issues, or of evidence, on liability and quantum which militates against severing liability from a hearing on damages. In particular, there is no overlap involving issues of credibility concerning the plaintiff.

24 In cases where there is a relevant overlap between issues of liability and quantum or damages a court will hesitate, and often refuse to severe the issues. However, that is not this case.

25 It seems to me that, given the fact that the plaintiff is only at the relatively early stages, since the occurrence of his accident, and that there is, in my assessment, no real countervailing circumstances against the application, that the application should be granted. Accordingly, I have concluded that a proper application of the principles to the facts of this case favours the granting of the order sought.

26 Accordingly, I make an order pursuant to rule 28.2 of the Uniform Civil Procedure Rules, that the question of liability be separately determined from the question of damages. Costs in the application are costs in the cause.

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Decision last updated: 18 September 2013