‘The dictates of justice’ – the key to seperate


[author: Ryan Cable]

The Supreme Court of New South Wales in Walsh v Walget Shire Council [2013] NSWSC 1434 recently rejected an application of a defendant to have a separate liability and quantum hearing in a catastrophic injury case. The principal reason being the dictates of justice.

Mr Walsh, the plaintiff, dove head first into an empty pool  after dark, striking his head on the bottom of the pool, becoming a tetraplegic requiring 24 hour care. He claimed Walgett Shire Council (Council) was negligent in failing to indicate with adequate signage that a swimming pool was empty, failing to illuminate the area sufficiently to alert the plaintiff that the pool was empty and failing to fence the area to prevent people from entering the area whilst the pool was empty. Council’s defences included dangerous recreational activity, contributory negligence and intoxication. Council submitted there was a genuine dispute as to whether Council was liable to the plaintiff and that separate hearings would save costs in assessing the plaintiff’s catastrophic injuries and future care.

The Court acknowledged there are occasions where it is in the interests of justice to have separate hearings, including ‘where the investigation of quantum is likely to be lengthy and expensive and the prospects of the plaintiff succeeding on liability are not clear.’ Citing Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215, Adamson J held separate hearings may be appropriate where it will narrow the field of litigious controversy, where there is a strong possibility that resolution of the separate issue will avoid further litigation and where there is a clear demarcation between that issue and all other issued including credibility of witnesses.

The plaintiff opposed Council’s application for separate hearings on the basis that the his right to interest on any quantum judgment would be prejudiced by delay, the material already obtained in support of his quantum claim would become stale and that another judge would need to determine quantum as the defendant intended to raise the credibility of the plaintiff, his wife and son as witnesses.

Her Honour ultimately held the degree of injustice that would be suffered by the plaintiff if separate hearings where ordered, would be more significant than any prejudice which the defendant might suffer in the event of a single hearing.

This can be compared to another recent Supreme Court of New South Wales matter of Nettleton v Rondeau [2013] NSWSC 1321 in which this time the plaintiff, suffering complete paraplegia, requested a separate hearing so that his damages claim could be heard later, allowing for there to be more certainty in determining his ability to continue working. Again, the Court sought to arrive at the most just outcome. In this instance, given the injury had been suffered so recently, it was decided that the hearing of the quantum claim at a later date would enable a more just assessment of the plaintiff’s future needs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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