Wootton v Smith[1999] QDC 220

Before HALL D.C.J.

BETWEEN:

AND:

PLAINT No. 395 of 1995

BETWEEN:

AND:

REASONS FOR JUDGMENT - HALL DCJ

(Delivered the 8th day of June 1999)

Pursuant to my request made at the time of delivering my reasons for judgment in these actions further submissions have been provided by the parties on a number of issues.

Firstly, the plaintiff claims interest on the judgment against Royal Pines Resort Pty. Ltd. and that is clearly so. My failure to allow interest in the first place was an oversight but it seems to me that Mr. Rolls' argument that interest should be calculated as against that defendant only from 22nd September, 1992 is correct.

With one exception interest was calculated on various components over a period of 6.5 years. The only exception was made in relation to interest on the pre-trial component of the award for pain and suffering. Consequently I assess interest in respect of that component for 6.5 years only so far as Mr. Rolls' client is concerned. Interest then is assessed at $20,759.44.

Secondly, the plaintiff claims an order for costs on a solicitor and client basis on the ground that an offer to settle was made in the in action number 395 of 1995 and the judgment in that action is no less favourable to the plaintiff than was contemplated by that offer. In fact on 1st October, 1998 the plaintiff offered to settle the action on the basis that the defendant admit liability absolutely and that the defendant paid the plaintiff's costs to the date of that offer to be taxed. In the result I found the plaintiff not guilty of any contributory negligence.

Rule 118(1) of the District Court Rules provides, so far as is relevant:

It seems clear that the offer made was an “offer to settle any one or more of the claims in the action.” See Davies v. Fay [1995] 1 Qd.R. 509 at 510. There is also authority for the argument, contrary to that proposed by Mr. Rolls for the defendant that the offer to settle must relate to a sum of money for which judgment can be given. In Henderson v. Simon Engineering (Australia) Pty. Ltd. [1988] VR 867 Murphy J. considered an offer of settlement relating to the matter of liability made between the competing defendants in a master/servant action and determined that such an offer relating only to a percentage of liability was an offer in the Victorian equivalent of Rule 120 of the District Courts Rules, but, as Mc Kenzie, J.., ruled in the Davies case, Murphy's J. Dicta apply equally as between the plaintiff and the defendants under Rule 118.

His Honour held that the third defendant's offer to contribute in that action could only shorten the litigation or lessen the costs by eliminating the need as between defendants of being separately represented, or calling or exhibiting evidence from witnesses which laid claim upon the third defendant or which exculpated the third defendant and inculpated the first and second defendants. In the circumstances, acceptance of the offer would not have caused any material lessening of any costs incurred, and therefore the third defendant was not entitled to an order that the first defendant should pay or contribute to its costs or to which a proportion of liability to pay the plaintiffs costs incurred after the date of the offer.

At page 871 of the report His Honour said:

Murphy J.'s judgment is with respect, an accurate application of the principles behind the rules relating to offers to settle. In my view had the offer made by the plaintiff been accepted by the defendant there would have been no significant reduction in the costs. Moreover, the question of liability in the action was never of great moment in the course of the trial though it was contested quite strenuously.

The only extent to which the plaintiff's costs were enlarged was in respect of the witness expenses of Dr. Coyle and Mr. Quinn and as to a small part of the plaintiff's evidence. If I was bound to follow the decision in Davies V Fay, I would be inclined to adopt the reasoning of Mr. Justice Murphy in Henderson's case (Supra).

However, I am not satisfied that the plaintiff has established that he has obtained a judgment no less favourable than the offer to settle which he made. Damages in that action were assessed at $342,641.76. If I had determined that there ought to be an apportion of up to 20% liability against the plaintiff he would still have been entitled to judgment in the amount of the jurisdictional limit. Therefore it cannot be said that he has obtained a judgment no less favourable than the offer to settle. Consequently there is no basis for an order for costs other than on a party and parties basis.

Thirdly, that the plaintiff contends that the cost of medical reports, economic loss report and the witness expenses of their authors should be apportioned between the defendants in accordance with the apportionment of two-thirds one-third made in respect of causation. It is argued however that there should not be a similar apportionment in relation to the costs of trial which ought to be assessed on the basis that the plaintiff be awarded his costs of each action. Having considered all the arguments put before me I agree with those of the defendant's counsel that a division of the costs not only of witnesses and their reports but also of the trial costs of the 2 actions be made on the same basis. To apportion costs as between the defendants on a two-third one-third basis and then to direct that the trial costs be assessed separately as between the two defendants would be to create an intolerable burden for the taxing officer. The taxation of costs would be difficult enough without requiring the taxing officer to apply two different tests in the course of it.