PRACTICE AND PROCEDURE – MEDICAL NEGLIGENCE – SEPARATION OF ISSUES – LIABILITY TO BE DETERMINED SEPARATELY FROM THE ISSUE OF DAMAGES
Does unclear demarcation between the issues of liability and damages resulting in an overlap of issues, including issues of credit of witnesses, make a separate trial of issues undesirable? – McLean by her Tutor Nicole Shuttleworth v Marshall  NSWSC 1400
AUTHOR: YEVGENI SHKURATOV, ASSOCIATE
DECISION DATE: 23 SEPTEMBER 2013
SUPREME COURT OF NEW SOUTH WALES
SOLICITORS: STACKS GOUDKAMP (PLAINTIFF)
AVANT LAW (DEFENDANT)
1. In examining whether an issue that is sought to be determined separately, should indeed be determined separately from other issues and at a different time, one ought to examine the matter in light of the principles identified by Einstein J, at  of Idoport Pty Ltd & Ors v National Australia Bank& Ors.
2. One must also cast light on the amended provisions of Limitation Act 1969 (NSW)(“LA”), in particular section 50F, Uniform Civil Procedure Rules 2005 (NSW), and section 56 of Civil Procedure Act 2005 (NSW)(“CPA”).
3. For a party to successfully oppose an application to try issues separately, it is essential to illustrate that the separation sought is undesirable and in particular that it will lead to a plethora of problems and difficulties including, inter alia, possible issues of appeal (including specifically identifying what those issues are), overlapping of witnesses and issues of credit with respect to those witnesses, as well as the closeness/proximity or interlink between the issue that is sought to be determined separately, and other issues in the proceedings, which are to be decided at a later date.
4. Separation of the issue of liability from other issues, may lead to the opposing party considering the issue of liability in greater detail, which may ultimately narrow the field of controversy between the parties, and in some instances lead to a full admission.
On 3 September 2013, the plaintiff, by way of notice of motion, sought an order, inter alia, pursuant to Rule 28.2 of UCPR that the issue of liability be determined separately from the issue of damages.
The defendant opposed the plaintiff’s application, despite there being no disagreement between the parties, in accordance with the medical opinion, that no attempt should be made to assess the plaintiff’s loss until she reached fourteen to sixteen years of age. The net result being a deferment of assessment of damages in the plaintiff’s claim for at least five years and probably more from the date of her application.
Rule 28.2 of UCPR provides:
28.2 Order for decision
In deciding the plaintiff’s application in her favour and ordering that the issue of liability be determined separately from the issue of damages, Barr AJ relied on the following principles:
1. It is for the party seeking an order that the issue of liability be determined separately from the issue of damages to satisfy the court that it is desirable for these issues to be tried separately. The court will begin its enquiry with the proposition that ordinarily it is appropriate that all issues in the proceeding are to be disposed of at the same time and the onus is on the party who wishes otherwise to show that it is desirable for that to occur.
2. In the past, courts have been reluctant to direct separate trials of issues. However, in light of the:
- 2002 legislative changes to the LA 1969 (NSW), in particular section 50F, the courts have been readier to separate issues; and
- introduction of UCPR has caused the courts to be more prepared to intervene to separate issues in order to resolve significant parts of litigation expeditiously.
3. The courts power to direct separate trials of issues cannot be fettered and must be exercised judicially on a discretionary basis.
4. In exercising the power, pursuant to rule 28.2 of UCPR the court is to give effect to the overriding purpose of section 56 of CPA that is to facilitate just, quick and cheap resolution of the real issues in the proceedings. Given that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, it ought to be identified, with respect to the issue sought to be determined separately, that separation will facilitate quicker and cheaper resolution of the proceedings.
5. An order that the issue sought to be determined separately, should indeed be determined separately from other issues may be appropriate in the following, non-exhaustive, circumstances:
- the resolution of the separate issue will have the effect of resolving the entirety of the controversies or narrowing the field of the allegations or facts in issue;
- where the resolution of the issue that is sought to be determined separately, carries a strong prospect of leading to a resolution of the dispute by the parties without the need for further litigation; and
- where the demarcation between the issue that is sought to be determined separately, and all other issues in the case is clear, including issues going to witnesses’ credibility.
6. A separate determination of the issue sought to be determined separately will rarely be appropriate where:
- the issues of fact or law between the issue sought to be determined separately and other issues are intertwined and therefore separation of, and determination of, one issue will not have any substantial effect upon the prospect of settlement of the proceedings or the “width of the field of the litigious controversy” in the proceedings;
- where there is overlapping of witnesses with respect to the issue that is sought to be determined separately and other issues in the case, and a ruling as to the issue of credit of one or more of the common witnesses is necessary. In these circumstances, a separate trial will preclude the same judicial officer from dealing with the matters going to the credit of the joint witnesses. Thus, making a separate trial undesirable; and
- there is risk that a separate trial will not lead to finality, resulting in an appeal, in turn, creating a multiplicity of proceedings, fragmentation of the proceedings, and interruption of the court.
The plaintiff’s position was that this was an appropriate case for the issue of liability to be determined separately from the issue of damages, as there was little overlapping of witnesses on the issues of liability and damages, with minimal prospects of inconsistent findings or of difficulties of cross-examination if issues were heard separately. In the plaintiff’s submission her case was similar to the decision of Wood CJ in Thomas v Oakley, where his Honour, in permitting a separate trial, identified, at , the following features, as justifying a separate trial of issues:
“… (a) their separation would allow for the issue of liability to be determined closer to the relevant event and, therefore, potentially with greater reliability;
(b) if the issue of liability were to be decided against the plaintiff, then there would be a very substantial saving in costs and Court time by avoiding an unnecessary and lengthy hearing on damages;
(c) a favourable determination on the liability issue for the plaintiff would give rise to a real prospect of facilitating an out of Court resolution of the proceedings by way of mediation;
(d) a favourable determination on liability would simplify and facilitate an application for an interim payment of damages under section 76E of the Supreme Court Act 1970;
(e) there will be little or no overlapping of witnesses on the issues of liability and damages, so that there are minimal prospects of inconsistent findings, or of difficulties arising in cross-examining witnesses, if the issues are heard separately, and that;
(f) it is premature to assess the plaintiff’s damages because of his age, but it would be unfair to have the whole matter languishing in the list, waiting for him to reach an appropriate age for an assessment of damages to be undertaken…”
In contrast to the plaintiff’s pleadings and the supplied further and better particulars of the pleadings, which stated that the plaintiff consulted “Dr Marshall and/or Singleton Heights Medical Practice” (i.e. it was not expressly confirmed that Dr Marshall was consulted on each and every occasion) on 10 occasions in the period 13 January 2006 to 7 July 2009, the defendant submitted this was not an appropriate case for an order separating the issues of liability and damages, namely because:
…the Court would therefore need to hear evidence from the plaintiff’s mother and the defendant as to what took place at the various consultations between January 2006 and July 2009. There would be a factual dispute which the Court would have to resolve….
 …issues of credibility were likely to arise. There would therefore be a substantial overlap of witnesses and issues when it came to the damages hearing, assuming the plaintiff succeeded on liability…
… if the plaintiff succeeded on liability it was unlikely in view of the issues on breach, causation and damages, that an early determination on liability would substantially narrow the field of litigious controversy.
 … there was no clear demarcation between issues of liability and damages. Rather there was an overlap of issues including issues of credit…
 … there was a real possibility that the separate resolution of the issue of liability would not finally determine the issue but merely result in an appeal, creating a multiplicity of proceedings…
Having considered the plaintiff’s and the defendant’s submissions, Barr AJ was of the view that an early trial of the issue of liability was desirable for the following reasons, inter alia:
1. A more reliable determination would be made;
2. Subject to any appeal, if the issue of liability were decided against the plaintiff, there would be a substantial saving in costs. On the other hand, a verdict for the plaintiff on liability would promote prospects of settlement out of court, which would be in line with the overriding purpose of section 56 of the CPA;
3. The considerations outlined at 1 and 2 above outweigh the difficulties pointed out by the defendant in his submission at  to  of the judgment.
The Plaintiff filed and served an Amended Statement of Claim. The defendant subsequently filed a Defence to the Amended Statement of Claim admitting liability and removing all allegations of contributory negligence.
A verdict and judgment in respect of liability was entered in favour of the plaintiff with damages to be assessed in due course, upon stabilisation of the plaintiff’s injuries.
Stacks Goudkamp and the plaintiff’s mother were pleased with the result.
 NSWSC 1400
 Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J);  NSWSC 1400, at .
 Tallglen v Pay TV Holdings Pty Ltd (supra) at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J);  NSWSC 1400, at .
 Dunstan v Simmie & Co Pty Ltd  VR 699 at 670 per Young CJ and Jenkinson J; Idoport Pty Ltd & Ors v National Australia Bank & Ors  NSWSC 1215 per Einstein J at ;  NSWSC 1400, at .
 Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra);  NSWSC 1400, at .
 Tallglen v Pay TV Holdings (supra, at 141 – 142 per Giles CJ in Comm D);  NSWSC 1400, at .
 CBS Productions Pty Ltd v O’Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA;  NSWSC 1400, at 
 Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J);  NSWSC 1400, at .
 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J),Century Medical v THLD  NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J);  NSWSC 1400, at .
 Story of Sydney Pty Ltd v Ling (supra),Century Medical v THLD (supra);  NSWSC 1400, at .
  NSWSC 1400, at .
  NSWSC 1400, at  to .
  NSWSC 1400, at .
  NSWSC 1400, at .