Pember v Corporation of Trustees of the Order of the Sisters of Mercy
[1997] QDC 38
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- Pember v Corporation of Trustees of the Order of the Sisters of Mercy[1997] QDC 38
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Pember v Corporation of Trustees of the Order of the Sisters of Mercy[1997] QDC 38
Pember v Corporation of Trustees of the Order of the Sisters of Mercy[1997] QDC 38
DISTRICT COURT | Plt No 3574 of 1995 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
ROSS PEMBER | Plaintiff |
and
THE CORPORATION OF TRUSTEES OF THE ORDER OF THE SISTERS OF MERCY | First Defendant |
and
QUEENSLAND NURSING SERVICE PTY LTD | Second Defendant |
BRISBANE
DATE 17/03/97
ORDER
HIS HONOUR: This is an argument about costs. The plaintiff who suffered a misfortune after an operation at the Mater Hospital sued that hospital, alleging negligence. At first the hospital joined the second defendant as a third party, saying that any damage the plaintiff had suffered was really caused by the nurse on duty.
For quite some time the action proceeded on that basis. The action was in that state when a case appraisal on the issue of quantum was held between the plaintiff and the Hospital. The case appraiser found that the plaintiff would recover damages of $19,952.05. The appraiser's certificate was filed on 23 December 1996 so that the 28 days for a challenge passed on 20 January 1997. Neither side challenged that appraisal and it then became binding on the plaintiff and the Hospital.
The third party was made a second defendant on 28 January 1997. It appears from the material that the third party was aware of the developments in the principal action before becoming a second defendant. On 4 February the plaintiff served an offer to settle under Rule 118(1) offering to settle quantum by accepting $19,944.79. That offer was served on both defendants. At the same time the plaintiff offered to settle the question of liability on the basis of recovering 100% of his damages.
The 14 days passed with no response being given. Then, on 21 February, the action was set down for trial, to be heard today. On 4 March the second defendant accepted the appraisal. Then, on 6 March, both the first and second defendants indicated that liability was admitted as well. The result was that from 6 March the defendants accepted that which had been in the offers to settle.
The plaintiff asks today that the defendants pay his costs fixed on a solicitor and client basis, under Rule 118. That application is resisted by the defendants, who say that another order for costs is proper in the circumstances.
The defendants rely upon the decision of Mr Justice MacKenzie in Davies v. Fay [1995] 1 Queensland Reports 509. That was a personal injury case in which liability and quantum were both in issue. It appears that the plaintiff offered to settle quantum in the sum of $635,000 and shortly after that it was settled at $620,000. At that time, as the judgment recounts, “liability was very much in issue there being issues of credibility so that the acceptance of one view of the evidence over the other was in issue”.
As he put it, once quantum had been settled, the question of contributory negligence became the sole live issue. In all of the circumstances of that case he thought it appropriate that any order for costs on a solicitor and client basis on the issue of liability should date only from that date - that is, the date when quantum was settled. He ordered that the defendant had to pay the costs of the action to be taxed, such costs on the issue of liability to be taxed on a solicitor and client basis after the date when the issue of quantum was settled. He therefore reduced the prima facie burden of Rule 118 on the defendant.
In this case it seems to me that the matter is made unnecessarily complicated if one concentrates upon the appraisal and the joining of the third party as a defendant, because that detracts from the essential simplicity of what happened. By the time the offer to settle was served the third party had become the second defendant. It then had 14 days in which to make up its mind as to whether or not the offer should be accepted.
Miss Dalton for the first defendant says that it is unfair to penalise a defendant for all that has gone before, when liability was still in issue. It may be that the plaintiff was asking for too much money before the offer to settle. If so, that is unimportant. The importance of Rule 118 is that it concentrates the mind of both the plaintiff and the defendant on their respective positions. Rule 118 enables the plaintiff to say what will be accepted. It gives a defendant 14 days to respond, under the penalty of paying additional costs if the response is not an appropriate one, or if there is no response.
The previous history of this matter is beside the point. Liability was always an issue. To lessen the costs burden on the defendants is to forget that liability was always an issue. The case before Mr Justice MacKenzie can be distinguished on its facts, which do not apply here.
If judges are easily persuaded that another order for costs should be made, it will destroy the essential reason behind Rule 118. Defendants who receive offers from plaintiffs have a certain time to accept, and there should be a strong incentive to decide quickly on the appropriate response. The usual penalty for not deciding on time, or deciding wrongly, is to pay the costs of the whole action taxed on a solicitor and client basis.
The order will be - judgment for the plaintiff against the first and second defendants for damages of $19,952.05, with the defendants to pay the plaintiff's costs of and incidental to the action including any reserved costs to be taxed and paid on a solicitor and client basis.