Jurott v Ryan[1997] QDC 216

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 6th day of June 1997

The plaintiff claims damages for injuries suffered by him in a motor vehicle accident on 30 January 1994. On that day he was riding a motor cycle eastbound along the Mt Glorious North Brook Creek Road, climbing the western side of Mt Glorious, when a collision occurred with the defendant's motor cycle which was travelling in the opposite direction. Liability is not now in issue.

In the collision the plaintiff was struck on his left hand side (p. 13) as a result of which his bike rolled to the right onto the road. The plaintiff was knocked out in the accident, and regained consciousness lying on the westbound carriageway on his back: p. 14. He was taken by ambulance to the Royal Brisbane Hospital, the trip he found rough and quite painful. He arrived at the hospital shortly before 2pm where he was examined, given some sedation, and after various tests was operated on that evening: p. 14. He was found to be suffering from a comminuted displaced fracture of the right neck of the humerus, closed mid-shaft fracture of the left radius and ulna, a displace fracture of the left clavicle, and an undisplaced fracture of the left lateral malleolus, and a closed head injury: Exhibit 1. The same day an operation was performed on his left arm to apply a plate to the fractures, and his left ankle was placed in a cast. There was a further operation on his right shoulder on 7 February 1994, when the head of the humerus was replaced with a stainless steel prosthesis (p. 15, 164) after which he had intensive physiotherapy. He developed a wound infection, and there was a further operation on the right shoulder on 28 March 1994, following which he was discharged on 5 April 1994. It seems that one consequence of the infection may have been to cause some damage to the bone adjacent to the prosthesis in the right shoulder, which then migrated down the shaft a little, but this was not thought by Dr Toft to be a continuing problem: p. 115. He has subsequently been reviewed on a number of occasions, and there were continuing problems principally in his right shoulder. He was readmitted to the pain clinic on 10 May 1994 where he remained for ten days: p. 168. The plaintiff said that he did not receive any relief from this attendance: p. 16.

The plaintiff was seen by Dr Toft, an orthopaedic surgeon, on 5 May 1994 for the purposes of a report which became Exhibit 10. Dr Toft said that the plaintiff suffered very severe injuries in the accident and had been left with very limited movements in both arms with considerable pain, which interfered with his ability to dress or wash or drive a car, as well as various other activities. At that stage Dr Toft did not think the condition had stabilised. He saw the plaintiff again on 27 December 1996 and prepared a further report: Exhibit 11. The plaintiff was still complaining of pain in both shoulders and lower neck, which had if anything become worse; at times for several days he was incapacitated to the point of having to stay in bed. At other times he could do some things around the house. He had difficulty in dressing and some difficulty with driving a car, but walking was not a problem. He was suffering quite severe discomfort, and that there was substantial limitation of movement in both shoulders. Dr Toft thought the plaintiff had suffered an aggravation of pre-existing significant degeneration in the cervical spine, leading to a 15% loss of bodily function of which 40% was due to this accident. The disability in the right shoulder was entirely due to the accident and amounted to a 40% loss of use in the right arm, essentially because of pain. The left shoulder problems to some extent pre-dated the accident, Dr Toft having in Exhibit 10 assessed pre-accident loss of mobility in the left shoulder of about 25%. In Exhibit 11 Dr Toft put the loss of use of the left arm at 20% of which 2% was the result of the plated fractures in the forearm and the rest from the shoulder, and he thought half the disability in the shoulder was attributable to the accident and half to the pre-existing condition. He thought there was a 2% loss of function in the left leg as a result of the accident.

In oral evidence Dr Toft said that Royal Brisbane Hospital records showed degenerative changes in the left shoulder dating back many years (p. 106). Dr Toft thought that the plate in the arm should be left alone (p. 108). He thought that there was an enormous amount of tissue damage and scar tissue around the right shoulder joint, and it was not quite anatomically aligned, and this may well be precipitating the pain in the right shoulder which was likely to mean that doing anything with the shoulder would make it more painful, and the condition was not likely to improve: p. 116. He thought that assuming the neck was not causing problems before the accident, it was quite probable that the plaintiff would have developed symptoms within five to ten years had the accident not occurred: p. 117. Pre-accident the spine was vulnerable to trauma, and the situation was much the same with the left shoulder: p. 117, He thought the accident caused a significant increase in the symptoms in the left shoulder, making it permanently worse.

The plaintiff was also seen for the purposes of a report by Dr Boys, orthopaedic surgeon, on 7 May 1996; Dr Boys report is Exhibit 12. He recorded the current complaints as an ache at the base of the cervical spine, pain and significant restriction of movement in the right shoulder, aggravated by activity, and pain in the left shoulder more significant than that experience prior to injury, aggravated by repetitious movement. He thought there was a good range of movement in the cervical spine, but restriction of movement in the right and left shoulder, and some right deltoid muscle wasting. There was also wasting in the left calf. Dr Boys thought there were continuing problems associated with the accident in the right shoulder, left forearm and left ankle. He assessed 35% loss of function of the right arm, 2% loss of function in the left arm associated with the forearm plate, and 2% loss of function of the left leg reflecting the injury to the left ankle. He thought that the problems in the neck and left shoulder were attributable to the pre-existing degeneration and the effect the accident had subsided in both those areas. The left clavicle had also healed without permanent impairment.

In a further report dated 16 December 1996 (Exhibit 13) preparing after considering records from the Royal Brisbane Hospital Dr Boys thought it was possible that the current restrictions in the left shoulder reflected some effects of the motor cycle accident but it was more likely that they reflected long standing arthritic degeneration and associated tendonitis. Under cross-examination Dr Boys conceded that it was possible that there was some additional disability in the cervical spine as a result of the accident, depending on the degree of injuries sustained: p. 133. Dr Boys pointed out at page 135 that it was quite frequently the case with a non-dominant arm that a person could have a marked restriction of shoulder movement in upper ranges and function quite well on a day to day basis. He said that had it not been for the accident the degeneration in the neck might have been asymptomatic but the plaintiff would have had stiffness anyway and such a condition is frequently symptomatic.

The plaintiff had also been seen by a neurologist Dr Ohlrich, on 9 May 1994 (Exhibit 5) and in March 1996 (Exhibit 6). Dr Ohlrich noted in May in 1994 that apart from the problems associated with orthopaedic injuries the plaintiff was complaining of mild headaches which had commenced a few days after the accident and did not improve. There was also some intermittent numbness in both hands. By the examination in 1996 the headaches seemed to have settled. Dr Ohlrich said on each occasion that he did not find any evidence of persisting brain damage resulting from the accident although it was possible that some of the weakness of the muscles around the right shoulder was associated with nerve lesions.

The plaintiff was also sent to Dr Mulholland a psychiatrist who examined him on 30 August 1994 (Exhibit 7) and for review on 22 March 1996 (Exhibit 8). Dr Mulholland thought that the plaintiff had not suffered a significant closed head injury, and the main psychological issues were unhappiness and frustration. They had not prompted the plaintiff to seek psychiatrist help, and he was sent to Dr Mulholland for the purposes of a medico-legal report by his solicitors. Exhibit 7 contains an account of the plaintiff's past medical history (on p. 3) which contained a number of events most of which were not relevant to the injury suffered in the accident, and a note of the medication currently being taken, mostly for matters not related to the accident. Dr Mulholland said the plaintiff was suffering chronic pain which was not caused by any psychological factors, but was producing a chronic adjustment disorder with chronic low grade depression: Exhibit 7. In Exhibit 8 Dr Mulholland thought that his current treatment was reasonably satisfactory, although he adhered to a recommendation that the plaintiff could benefit from some expert assistant in pain management. In his oral evidence Dr Mulholland expressed the view that visits from his wife and children in the period following the accident had probably prevented the depression from becoming more serious: p. 122. It seems however that this really depended on there being some visits from the family from time to time and he did not in terms justify as therapeutic all of the visits in fact made. He was not able to express any confidence that further work on pain management would probably produce some improvement: p. 126.

The plaintiff was seen for the purposes of a report by Ms Helen Coles on 28 June and 2 July 1994: Exhibit 3. There was a follow-up report (Exhibit 4) obtained following a review on 14 January 1997. Exhibit 3 contains a detailed catalogue of a consequence of the accident to the plaintiff, although it was prepared only some five months after the date of the injury. The second report reveals improvement in a number of areas of day to day living, mostly in the form of additional activities being carried out or possible, although still with difficulty. This is described by Ms Coles as a minor change, and she thought that he was still significantly restricted in domestic and recreational activities, as well as any retirement employment. If he did not have the assistance of his wife he could be expected to need domestic assistance of a minimum of six hours per week.

One of the plaintiff's pre-accident medical conditions was a heart disease, which led to an operation in 1990 but in November 1991 a blood test showed that the plaintiff's cholesterol was within the normal range: p. 149. Dr Goodwin, physician and cardiologist, expressed the view that as a consequence of the increased inactivity following the accident because of his injuries his cardiovascular risk functions had increased, with the consequence that whereas prior to the accident his medical condition suggested a life expectancy of 74.5 years, his current condition suggests a life expectancy of 72 years: Exhibit 22, and see p. 94. These of course are average figures for men in his general condition, and what happens to this particular plaintiff, or what would have happened to him may well be different, but in the light of this evidence I think it is appropriate to find that one consequence of the accident has been to reduce the plaintiff's life expectancy by 2½ years.

One of the matters in issue in the trial was the extent of the plaintiff's pre-accident disability in his left shoulder, and the question of what his condition was likely to have been in relation to the left shoulder if the accident had not occurred. Dr Griffiths, the plaintiff's GP, said (p. 96) that he had no record of any complaints from the plaintiff of problems with the left shoulder, in notes going back to 1983. There were also no complaints of cervical pain prior to the accident: p. 103. According to his report Exhibit 24 the plaintiff frequently attended complaining of pain in the right shoulder and lower cervical spine from June 1994 to late 1996. According to Dr Griffith the plaintiff was currently on medication including anti-depressants Prothioden 25mg (4 at night), and Zoloft 50mg (1 in the morning), each of which cost about $20 per month: p. 100.

The other doctor called who was familiar with the plaintiff prior to the accident was Dr Klestov, a specialist rheumatologist. He had first seen the plaintiff on 28 June 1984: p. 147. The plaintiff had symptoms in several joints and by 1993 Dr Klestov had come to the conclusion that the plaintiff was suffering from oesteoarthritis of the spine: p. 148. The left shoulder was frequently a symptom area, although at other times there were hardly any symptoms: p. 149. Dr Klestov did not think anxiety or depression was a significant feature of the plaintiff's presentation prior to the accident: p. 151. The plaintiff was also suffering pain in the neck: p. 151. This sometimes caused headaches, but they were not often the subject of complaint to the doctor, who saw him between ten and fifteen times over a period of some nine years. At no stage was the pain sufficiently severe to keep the plaintiff away from work: p. 153. Dr Klestov said that the plaintiff had not been treated with gold injections by him; that medication, which is referred to in Dr Boys' report Exhibit 12, would have been appropriate for a rheumatoid disease which would have left the plaintiff more seriously ill that he had in fact being. Before the accident the plaintiff's shoulder had quite a good range of movement: p. 157.

The principal issue was as to the extent to which the plaintiff's symptoms were worse than they would have been apart from the accident, in particularly in relation to the left shoulder where there was some considerable difference of opinion between the medical witnesses. It was clear particularly in view of the x-rays that the plaintiff was suffering significant problems in the left shoulder prior to the accident, and the evidence of Dr Klestov indicates that the plaintiff had some pain there from time to time. Dr Toft thought that there was also some significant loss of the normal range of movement, although this was not really supported by Dr Klestov who said that at least at times the plaintiff seemed to have a full range of movement in the shoulder. Problems to the left shoulder do not appear to have prevent the plaintiff from working, or caused him to consult his GP. The plaintiff himself said that there was a little bit of pain suffered in the left shoulder under certain circumstances (p. 18) and generally gave the impression that he had few problems with it prior to the accident.

I should said with regard to the plaintiff's evidence that there was nothing which led me to have serious doubts about its general reliability, although I would not necessarily except as completely accurate everything he said. The plaintiff has undoubtedly suffered significant injuries in this accident, and I am satisfied that they have substantially changed his life. Under these circumstances it is understandable that he might be disposed to focus on the contrast between his current painful and restricted state and the relatively comfortable and unrestricted state he was in prior to the accident, and this I suspect produces a tendency to de-emphasise the other problems he did have at that time. He did have a range of significant health problems, he had hypothyroidism of longstanding, hypertension, he had had heart problems which required artery by-pass surgery in 1990, he had asthma of long standing, and had had diverticular disease in 1993: Exhibit 7. He also had pre-existing problems of arthritis in the spine, and some degeneration in the left shoulder. Even if the arthritis in the spine and shoulder were not causing significant symptoms prior to the accident, they could well have done so even if the accident had not occurred, either as a result of the natural progression of the disease, or if their condition was stirred up by some other trauma. I would therefore be prepared generally to accept the plaintiff's evidence, but would treat it with some caution.

I do think that the previous medical conditions are significant in assessing the extent of the consequences of the plaintiff's injuries. On the other hand I do not think that it is appropriate to assess the plaintiff's condition on the basis that his left shoulder now is in the same state it would have been in had the accident not occurred; in this respect I think the important consideration is that what I have to do is assess the difference between the actual state and the hypothetical state of his shoulder had the accident not occurred. In the light of the medical evidence his shoulder could well have been as bad as it is by now, but on the other hand might have remained in the same or not much worse condition than it was immediately before the accident. Dr Toft was inclined to attribute half the current degree of disability of his shoulder to the accident and half to the pre-existing condition. Although I suspect that this is a statement of scientific causation rather than an assertion that, but for the accident, the plaintiff's shoulder would have been half as bad as it in fact is now, in the light of the medical evidence as a whole I think that it is reasonable to assess damages on the basis that the plaintiff is entitled to half of the amount which would have been recoverable if the whole of the problem the plaintiff has in his left shoulder were certainly caused by the accident, that is, but for the accident the plaintiff's shoulder would have been fully functional and pain free.

With regard to the neck, I am prepared to accept that the plaintiff had few problems with the neck before the accident, and that the result of the accident was to leave him with more or less continuous pain in the neck, although normally not severe pain. Nevertheless the evidence indicates that the plaintiff had significant degeneration of the spine before the accident. I would interpret Dr Boys opinion as being to the effect that the plaintiff would probably have the sort of symptoms now in any case even if the accident had not occurred, and Dr Toft's view was that the plaintiff would probably be in that state within a few years. In the light of the medical evidence as a whole and the age of the plaintiff I think that a reasonable approach is to treat the effects of the accident as probably having made the neck permanently worse than it would otherwise have been.

There is no dispute that the right arm is significantly disabled and very painful and that this was caused by the accident. There is also agreement about a minor disability in the left wrist, and a minor disability in the left leg. I think that there were no lasting consequences of the head injury (apart from aggravation of the degeneration in the spine), and I am satisfied that as a result of the injuries caused by the accident, particularly the severe pain, the plaintiff has suffered an adjustment disorder with some depression, but the condition is controlled and not in itself very significant. I will make some small allowance for the scarring on the left wrist (p. 15), and there should also be some allowance for the loss of expectation of life of 2½ years. I think that it is correct to say that the plaintiff's inactivity is related to the accident, and that it is not reasonable to expect him to be more active than he is in the light of his physical condition. Overall his condition is more likely to deteriorate in the future than to improve.

There was some issue in the course of argument as to the significance of the plaintiff's age when assessing damages for pain and suffering and loss of amenities. In my opinion the correct position is that age in itself is not a factor which affects the assessment of damages on this basis, but duration of loss is, and in the case of a plaintiff who has been injured in a way which leaves permanent consequences the duration of the consequences will be dependant on life expectancy. In that way age will be relevant.

The effect of the accident on the plaintiff was principally to interfere with domestic and recreational matters, since he had retired. There was some prospect of continuing work involving photographic activities (p. 19) and it had made it much more difficult for him to do any photography (p. 53). It is also cut off any possibility of returning to some part-time work at a tertiary institution (p. 36).

The plaintiff has had substantial interference with most of his preferred recreations. He was keen on riding motor cycles, including long distance touring, and his capacity is now quite limited: p. 18. He has had to give up his interest in bush walking (p. 19) and gardening (p. 23); he is able to mow a lawn again, but only in easy stages (p. 24). There are some difficulties with dressing and any other activity which requires any significant movement of the right arm or hand which was the dominant hand. The plaintiff's ability to be active around the house has been significantly impaired. He is now unable to do painting work in his own home (p. 23) and there is evidence of Ms Coles that he needs domestic assistance of about six hours per week. The plaintiff was born on 30 September 1929 (Exhibit 7); he was 64 at the date of the accident, and is now 67.

Taking all these matters into account I have assessed damages for pain and suffering and loss of amenities of $42,000 of which I would apportion $18,000 to past loss. This includes scarring and the adjustment disorder. There are no similar cases of which I am aware, but I have found some guidance in the decisions of Hastie v Fire Service Commissioner (White J, Writ 1889/92, 29.3.96) and Mann v Northern Sandblasting Pty Ltd (Kiefel J, Townsville, Writ 140/87, 9.9.94). I think that it is appropriate to make some allowance in this figure for the loss of the opportunity to pursue his interests in photography in away which might otherwise have produced some small amount of income. Any such income would have been I think quite small, and that activity would be more a matter of maintaining interest in his profession. In accordance with the usual practice I will make some small separate allowance for loss of expectation of life in the sum of $1,000: see Gannon v Gray [1973] QdR 411. I allow interest on past loss the sum of $1200. There was no claim made for economic loss in itself.

With regard to special damages, the medical expenses claimed of $425 are proved by Exhibit 17 and 18, as are the Ambulance transport after the accident for the sum of $400.30 (Exhibit 19), a Health Insurance Commission refund (Exhibit 23) in the sum of S297.40, hydrotherapy treatments for the sum of $64.60, and transport costs for the sum of S93.50. Exhibit 21 also records gardening expenses $60 and a neck brace $6.90. With regard to cost of medication, Exhibit 21 provided a list of actual expenditure over a period of eighteen (18) months in an amount totalling $341.80. They suggest that after July 1994 the plaintiff incurred expenses on medication of the order of $18 per month, but taking into account the evidence of Dr Griffiths I allow a further amount of $1,000 for the period up to judgment. I will allow $3,000 for future costs.

With regard to past gratuitous care, there were really two aspects of this claim. The first related to visits particularly by the plaintiff's children during his hospitalisation and on other occasions which were essentially to provide companionship and to help to cheer him up. I have referred to the evidence of Dr Mulholland in relation to this. There was also evidence of actual time spent in providing assistance. The plaintiff in the period of one to two years after the accident probably required rather more assistance than he does now, and I will allow the sum of $12,000 for past care. I do not think that the basic evidence is sufficiently precise to justify detailed calculations from it. With regard to the cost of future care I assess that in the sum of $15,000; I suspect that as time goes by the plaintiff's need for this is going to go up rather than down.

With regard to the visiting of the plaintiff in hospital, and other provision of companionship, it is often reasonable to make some allowance for this, particularly in the case of injured children or person suffering severe injuries, and particularly when expenses have been incurred by someone in travelling long distances to provided some companionship. See Wilson v McLeay (1961) 106 CLR 523; O'Connell v Brisbane City Council (1966) OWN 26. The theoretical basis for such an allowance, the therapeutic value of the companionship, is perhaps somewhat tenuous in many cases, but it is often justifiable when the alternative would have been no companionship at all. I do not think the principal extends however to paying for all of the reasonably frequent visits here from a number relatives, particularly in circumstances where the medical evidence was that what mattered was that there was some visits rather than the actual level of visits undertaken. Accordingly for this therapeutic companionship I will allow the sum of $500.

Conclusion

I therefore assess damages as follows:

I therefore give judgment for the plaintiff for $76,189.50 together with interest of $2,515.00. I order the defendant to pay the plaintiff's costs of and incidental to the action to be taxed. I will publish these reasons by sending them to the solicitors for the parties; if either wish to seek a different order as to costs, please notify my associate promptly. If the matter is contentious I will give directions through him for written submissions.

BETWEEN:

AND:

SUPPLEMENTARY REASONS FOR JUDGEMENT - McGILL D.C.J.

Delivered the 11th day of July 1997

On 6 June 1997 I delivered judgment in this matter following a trial held earlier in the year, judgment having been then reserved. The preparation of the written reasons was not finalised until that day, and, as I was about to be absent from Brisbane on circuit and then on vacation for a total of four weeks, I decided to deliver judgment by sending by facsimile a copy of the written reasons to each counsel. I gave judgment for an amount $76,189.50 together with interest of $2,515.00, and I made an order for party and party costs but reserved leave to either party to seek a different order as to costs. That judgment was taken out in the registry.

An application has now been made on behalf of the plaintiff under the slip rule to include two amounts which I omitted from the judgment, notwithstanding that the parties had agreed that these amounts would be included. On the first day of the trial I was told that a property damage claim made in the plaint had been compromised for an amount of $6,031.50, with no interest to be payable, and that it was agreed that the plaintiff was entitled to recover in respect to an obligation to pay $28,542.00 to the Royal Brisbane Hospital for costs of treatment and rehabilitation. These matters were not mentioned again at the trial, and when preparing my reasons for judgment I overlooked the note I had made of them on the first day of the trial, and they were omitted. The judgment should therefore be varied under the slip rule by increasing the amount for which judgment is given by the total of these two sums, $34,573.50, making it a judgment for $110,763.00 together with interest.

Application has also been made under the leave reserved in respects of the costs order. The plaintiff has sought costs on a solicitor and client basis because the judgment was more favorable than an offer to settle dated 20 December 1996. The plaintiff has also sought that the costs include costs reserved by His Honour Judge Healy on 10 January 1997. The matter was originally set down for two days, having been certified as lasting two or three days by the parties on the certificate of readiness as filed. When it became apparent to the parties that the matter was going to take longer, an application was made on behalf of the plaintiff to vacate the trial date, and His Honour set the matter down for five days at a later date. Shortly before that hearing the issue of liability was resolved, so that in the event the trial took only three days. His Honour reserved the costs of the application.

Solicitor and Client costs

With regard to the application for solicitor and client costs, counsel for the plaintiff relied on the terms of Rule 118(1) which prima facie requires that such an order be made in favour of his client. It is clear that the judgment received was overall more favorable than the offer to settle, although the amount at which the property damage claim was ultimately agreed was a few hundred dollars less than the amount in respect of that claim in the offer. It follows that the plaintiff is entitled to an order unless the defendant shows that another order for costs is proper in the circumstances.

Counsel for the defendant relies on the fact that, at the time when the offer of 20 December, 1996 was made, the plaintiff had filed and served a statement of loss of damage under Rule 149A (being the statement filed on 31 July 1995) in which the amount claimed in respect of gratuitous care by other family members “immediately following the accident” was stated to be $1,250.00, setting out detailed particulars of the claim in respect of each family member. There was no suggestion of any continuing need for domestic care or assistance. Subsequently an amended statement of loss and damage (filed on 3 February, 1997) was served, which added a claim for gratuitous care provided by the plaintiff's wife, both in respect of the past and on the basis that such care was continuing in the future. In respect of past care part of the amount for which the claim was made in the statement filed on 3 February, 1997 related to the period prior to 31 July 1995.

In practical terms the effect of the change was that under the first statement the only claim in respect of gratuitous care was a relatively small payment for past care which ceased fairly soon after the date of the accident. In the second statement it was claimed that there was significant recoverable gratuitous care continuing after that period, and that that would continue in the future.

In my judgment I allowed $12,500.00 for past gratuitous care, and $15,000.00 for future gratuitous care. The amount allowed for past gratuitous care was rather less than the amount claimed in the statement of loss and damage filed on 3 February 1997, but these two sums together represented $26,250.00 more than the amount claimed for gratuitous care in the statement of loss and damage which was current when the offer to settle was made. As pointed out by counsel for the defendant, if that extra amount is disregarded, the judgment was less favorable than the offer to settle of 20 December, 1996.

The argument was that the defendant was entitled to assess its response to the offer of 20 December 1996 on the basis of the claim as then made, and that the defendant's attitude may well have been different if the claim for gratuitous care made in the statement on 3 February 1997 had been made prior to the making of the offer of 20 December 1996. Another way of putting it is that it would be unfair to penalise the defendant in costs on the basis that he ought to have accepted that offer of settlement in circumstances where it was bettered only because of a claim for gratuitous care of which the defendant had not been made aware as at 20 December 1996, although it should have been included in the first statement under Rule 149A.

Counsel for the plaintiff responded by arguing that there is no overt link made within the rules between Rule 118 and Rule 149A, that the latter rule contains its own regime for breach in sub-rule (3)(c) (so far as the plaintiff is concerned), and that therefore this is not an appropriate basis upon which it can be shown that a different order for costs is proper.

I was not referred by counsel to any authorities touching on the interrelationship of these two Rules, and I have not found any for myself except for Sheath v B&F Video and TV Service Pty Ltd. (Supreme Court, White J., Writ 958/92, 24.3.97, unreported). In that case a similar argument was advanced, but it was not necessary for Her Honour to consider the issue in detail as she was of the view in that case that “the nature of the plaintiff's care which was run at trial was very much the case revealed in the Statement of Loss and Damage even if the figures had changed.” Rule 149A (8) does permit the court in making an order for costs to take account of a party's failure to comply with the Rule or a party's manner of compliance with the Rule, and it seems to me that there is no reason why that sub-rule should be read down so as to make it inapplicable when determining whether to make some other order under Rule 118(1). In my opinion technically it is open to me under the rules to have regard to the arguments of Mr Alldridge for the defendant, although it does not necessarily follow that they should succeed.

Rule 118 is part of a regime designed to encourage the resolution of disputes prior to trial: Tamwoy v Solomon [1996] 2 Qd. R. 93 at 96. That is also one of the objectives of Rule 149. Thomas J in King v Nolan [1992] 2 Qd. R. 498 at 501 said: “The general intention of r. 149A was to require the legal profession to prepare a party's case earlier than the last possible moment, and to facilitate the settlement of claims at an early stage”. Taking into account changes in the plaintiff's claim as disclosed pursuant to Rule 149A for the purposes of determining whether to make some other order under Rule 118(1) would appear to me to be consistent with these objectives, and provide further support for them, by providing further encouragement for a plaintiff to prepare a complete statement of loss and damage at an early stage.

It is certainly well established that normally a court will give effect to the cost provisions in Rule 118(1) and the corresponding provisions in the Supreme Court Rules, O. 26 r. 9. The approach formerly adopted with regard to payment into court in Lauchlan v Hartley [1979] Qd. R. 305 at 309 has generally been followed; see for example Norris v McManus (Wylie DCJ, Cairns Plaint 615/89, 11/6/91, unreported). His Honour pointed out there that it was appropriate to attempt to give effect to the spirit of the rule as to offers to settle.

In Larson v Tang (Carter J, Mackay Writ 16/87, 30.6.88, unreported, referred to in Ryan Weld and Lee “Queensland Supreme Court Practice” para 26.9.4) Carter J said: “It seems to me, however, that if the defendant is in a position of being able to show that here are circumstances which were unknown to him and which he could not reasonably have obtained at some time prior to trial then such a defendant should not be mulcted with solicitor and client costs when the critical information comes to hand only at the last minute and is material of which the defendant has no reasonable notice beforehand”.

In the present case the claim for gratuitous care made at the trial was a significant one, and the amount allowed represents about a quarter of the total damages for personal injuries (as varied above), of which about another quarter represents the refund of hospital costs. Given the extent and severity of the plaintiff's injuries, a claim for gratuitous care might reasonably have been anticipated. The question is really whether the fact that a claim for gratuitous care was made in a statement under Rule 149A which did not make provision for any ongoing care after the period immediately after the accident meant that it was reasonable for the defendant to proceed on the basis that that was the only claim that would be made, notwithstanding that a consideration of the nature of the injuries might well lead to the view that a more extensive claim could reasonably be anticipated if the matter went to trial.

Rule 118(1) is designed to encourage the making of reasonable settlement offers, and it does this by imposing a significant cost penalty if in fact the plaintiff does better than an offer which was made, prima facie even if the offer was made relatively late. The assessment of damages for personal injury is an imprecise exercise at the best of times, and is often very difficult, and is necessarily impossible to predict with precision. That should not be used as a justification for departing from the prima facie order for costs in Rule 118(1) or the purpose of the rule would be defeated. It is not uncommon that preparation of a matter for trial involves investigations which reveal aspects of the plaintiff's condition, or the consequences of his injuries, not previously appreciated or fully appreciated by the plaintiff's advisors, and it is therefore not uncommon for the plaintiff's case as finally presented at trial to be somewhat different from what might have been anticipated by the plaintiff's advisors even if they gave careful consideration to the formulation of a statement under Rule 149A. It is also possible for the evidence simply to come out in a way which is more favorable to the plaintiff, or for the trial judge to take a view of the evidence more favorable than was anticipated by the plaintiff's advisors. All of these are matters which might be regarded as part of the ordinary risks of litigation and would not ordinarily justify departure from the prima facie order in Rule 118(1). I also think that the policy of that rule of encouraging defendants to accept reasonable offers of settlement could be undermined if after a trial there was a minute comparison undertaken between the statement of loss and damage and the findings made by the trial judge with a view to showing that what was ultimately found to be justified was not quite what the plaintiff had claimed.

Of course the difference may occur because of changes in the plaintiff's condition, or because additional evidence is obtained on behalf of the plaintiff which throws a new light on the plaintiff's condition. I would think that those circumstances would not prejudice a plaintiff's entitlement to an order under Rule 118(1). On the other hand, I think a point can be reached where there is such a substantial difference between the claim disclosed in a Rule 149A statement and the claim which succeeds at the trial (and which should have been more fully disclosed in the Rule 149 A statement) to justify a departure from the prima facie order in Rule 118(1).

Here at the time when the original statement of loss and damage was filed the plaintiff had, according to the later statement of loss and damage and as found at the trial, a significant need for assistance which was then being met by gratuitous assistance from his wife, and there was reason to expect that that would continue. That claim nevertheless was not included in the first statement of loss and damage. In circumstances where a claim for gratuitous care is made but is limited, as the claim in the present case originally was, I think it is reasonable for the defendant's advisers to proceed on the basis that that is the only claim made for gratuitous care. I think that I would be acting to undermine the policy lying behind Rule 149A if I were to proceed on the basis that there was an obligation on a defendant to “second guess” a statement of loss and damage filed and served on behalf of the plaintiff, so as to work out what that statement should have said but did not. Such a statement ought to be the basis upon which proper settlement negotiations can proceed, and I think that the defendant is entitled to have regard to the terms of such a statement when determining a response to an offer to settle.

In the present case there was a substantial difference between the claim for gratuitous care made originally and current at the time when the offer of settlement was made, and the claim which was subsequently advanced on behalf of the plaintiff at the trial, and substantially succeeded. This appears from the figures mentioned earlier. The amount involved is a substantial proportion of the total award (about 25%). But for that amount, the offer was some $8,000 more than the amount finally awarded (after taking into account $2000 to represent the component for additional interest to 20 December 1996).

I am satisfied that in those circumstances I am justified in departing from the order otherwise required by Rule 118(1). In my opinion the order I initially made, that the defendant pay the plaintiff's costs to be taxed on a party and party basis, is in the circumstances of this action the order which is proper, for the reasons I have given. I will therefore not vary it.

Reserved costs

With regard to the question of reserved costs, I think in the circumstances it was appropriate for the application to have been made to vacate the earlier trial date, and by that time an application to the court was necessary to achieve that result. Although different costs orders may reasonably be open in such circumstances, in my opinion the plaintiff should recover the costs of that application.

Costs of this application

With regard to the costs of this application, it was appropriate for the application to have been made under the slip rule to have included in the judgment the two amounts which I had omitted, although the application was not in that respect resisted. Such a variation was necessary: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502. The plaintiff has also obtained an order in respect of the reserved costs. The defendant has successfully resisted the application for solicitor and client costs, although I think it was reasonable to make that application, particularly where there do not appear to be any reported decisions discussing the interrelationship between Rule 118(1) and Rule 149A. There may be some element of rough justice involved, but I think in all the circumstances the plaintiff should have his costs of this application.

I therefore order that the judgment dated 6 June 1997 be varied by

I order the defendant to pay the plaintiff's costs of and incidental to this application to be taxed.