Davis v Bound[2011] QDC 82

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 6 January 2008 Wayne Williams was brutally murdered by the two defendants. They were convicted of that murder on 21 December 2009.^[1]The first plaintiff was Wayne’s mother and the second plaintiff is the husband of the first plaintiff. As a result of her involvement in the circumstances surrounding her son’s death, the first plaintiff has developed a significant psychological injury. She has sued the defendants for damages, including aggravated and exemplary damages. The second plaintiff has brought a claim for loss of consortium and servitium.

2. [2]
   The matter proceeded before me as an assessment of damages, the plaintiffs having obtained judgment against each of the defendants by order of Jones DCJ made on 11 February 2011. Neither defendant appeared on the hearing of the matter before me, although both had been appropriately served and notified of the hearing.

Injuries

3. [3]
   A report of Dr Foxcroft, psychiatrist, of 21 February 2010 was part of Exhibit 1. Dr Foxcroft saw the first plaintiff on 10 February 2010 and set out the following relevant history which he obtained from her:

1. (i)
   Her son’s murder was brutal and he suffered horrific injuries.

2. (ii)
   As a result of her exposure to his murder, including her attending the murder scene and identifying his body at the morgue, she developed a significant psychiatric disorder and continues to have intrusive thoughts, flashbacks and nightmares, with depressed mood, tearful episodes, overwhelming grief and emotional numbness.

3. (iii)
   She was working full-time at the time of his murder as an enrolled nurse and had done so for many years.

4. (iv)
   She had an extended period on sick leave after her son’s murder. She received QSuper Insurance^[2]from 6 January 2008, returning to work three days per week from October 2008 and full-time from February 2010.

5. (v)
   She has had extensive counselling and treatment, including anti-depressant medication.

6. (vi)
   There was no prior psychiatric history or pre-existing personality problems or traits.

7. (vii)
   She had prior Crohn’s disease but had coped well with that, as she had when she had surgery for colon cancer in March 2000.

8. (viii)
   She had two daughters from an earlier marriage, who were the sisters of her murdered son and had remarried to the second defendant three and a half years before the murder.

9. (ix)
   Her marriage relationship had been very happy but was very considerably strained by her son’s death and her ongoing reaction to it.

10. (x)
    She had become somewhat socially avoidant. She rarely saw her friends, and her major activity was babysitting her grandchildren.

4. [4]
   Dr Foxcroft diagnosed a major depressive disorder complicated by an adjustment disorder with depressed and angry mood and an unresolved grief reaction. He assessed a global assessment of function of 60. His opinion was that she had a poor prognosis and he felt she would have permanent symptoms of depression with consequential permanent impairment, which he described as moderate to severe. He said this has had severe effects on her recreational and social functioning. He said that with effort and treatment, which he said had been appropriate, she had returned to her work and was functioning in her role as an enrolled nurse. He assessed a PIRS psychiatric whole person impairment of 5%. He noted the level of impairment would have been higher under the AMA scales and said her prognosis was poor. He said she was likely to require continued fortnightly treatment from a psychologist at a cost of about $200 per session for “the foreseeable future”.

5. [5]
   In a letter of 8 March 2010, on the plaintiffs’ solicitor’s letterhead which Dr Foxcroft countersigned, he said her psychological treatment would probably continue for two to five years and said that it was possible, indeed likely, that antidepressants might be required for the rest of her lifetime. He said it was even “entirely possible” that psychological treatment might be required all her life “given the severity of her condition”. He said the cost of antidepressants would be about $30 per month.

6. [6]
   He said in that countersigned letter that her condition would have resulted in a significant impairment on her capacity to work as an endorsed enrolled nurse and that it was “absolutely reasonable” to expect she would be unable to continue working full time. He said that realistically he thought she would only be able to cope working three days per week even after further treatment. He also said he “cannot see” the first plaintiff completing her Bachelor of Nursing studies that she said she had started but deferred, intending to resume it but for her son’s murder.

7. [7]
   Having observed the first plaintiff give her evidence before me, and having regard also to the affidavit of Thea Keane, to which I shall shortly refer, I accept generally the evidence of Dr Foxcroft.

8. [8]
   I would add, however, that I do not favour the obtaining of evidence from a specialist medical practitioner by having him countersign a letter composed by a party’s solicitor following discussion between the solicitor and doctor, as here occurred. In my view, such a practice has significant potential difficulties. In my view, it is much preferable that the doctor prepare a report in his own words explaining the issues. The practice adopted in this case has the real potential to put words in the doctor’s mouth and should, in my view, be discouraged. This is particularly so in a case such as this, in which I did not have the advantage of having heard cross-examination of the doctor by the defendant or by any legal adviser on their behalf.

9. [9]
   As a result of her psychological compensation the first plaintiff saw a psychologist, Janet O'Donnell, on some 23 occasions between 13 February 2008, only very shortly after her son’s murder, and 9 January 2010.

10. [10]
    In a report of January 2010 Ms O'Donnell says the first plaintiff was in severe emotional distress when she was first consulted. She reported that the first plaintiff said she had “attended the murder scene and was extremely traumatised by the experience because evidence from the murder was still present, such as blood and body fluids from her son on the walls”. She said the first plaintiff was involved in numerous meetings with lawyers, police and family about the murder and found the whole court experience difficult. The first plaintiff confirmed these matters in evidence before me. In evidence before me she also referred to the aggravating effect of her attendance at the committal, trial, and the appeal. She had been required to give evidence at the committal at least.

11. [11]
    The first plaintiff said that when she gave evidence at the committal proceedings the first defendant, Bound, was so positioned that the presiding magistrate was unable to see him pointing his finger continuously at her. Furthermore, at the completion of her evidence she said he pointed his index and middle fingers at her and cocked his thumb behind them, clearly signifying, in my opinion, a gun. She, quite understandably, took this appalling behaviour as a threat and as a consequence has lived in real fear that Bound, if freed in the future, might attempt to kill her.

12. [12]
    Her concerns about Bound were highlighted after attendance at the Court of Appeal’s hearing of the appeal by the defendants against their convictions for murder. After the court had adjourned following the hearing of the matter the first plaintiff says she was talking to representatives of the DPP. The first defendant, who was personally present at the appeal, faced her and proceeded to lick his lips ostentatiously with his tongue. Once again, this had the effect of significantly agitating the first plaintiff, as might be expected in such circumstances. That these actions had the aggravating effect on her that she described is not surprising. I have no doubt Bound intended that they would. His actions in doing as I have described were in my view extremely callous, and indicated an appalling contempt for the first plaintiff. In my view, his disregard for her and his insulting and malicious conduct would undoubtedly have increased her level of psychological distress and suffering and caused her to have fear for her safety.

13. [13]
    I referred earlier to an affidavit of Thea Keane, who is a clinical nurse of significant experience employed at the Princess Alexandra Hospital where the first plaintiff also worked. In her affidavit she attests to the high quality of the first plaintiff’s work prior to the murder of her son and of the significant change in her abilities thereafter. The change in her competency was quite dramatic. Importantly, she attests to the following:

17.I am aware that, prior to Wayne’s death, Denise was working towards achieving a tertiary qualification in nursing, and had successfully completed part of a Bachelor of Nursing degree. I had actually encouraged her to undertake this course of study because she was really performing at the standard of a Registered Nurse and deserved the formal qualification, formal recognition and accompanying pay.

18. Shortly before Wayne’s death Denise advised me that:

1. (a)
   She had deferred her studies as she was finding it difficult to study while undertaking full-time shift work and finalising a divorce which involved selling her house and finding a new house to move into; and

2. (b)
   Intended to resume her studies as soon as possible after her divorce and the move had been finalised.

…

25. Denise had a prolonged period of time off work following Wayne’s death. She then returned to work in a part-time capacity and eventually resumed working full-time hours. More recently, however, I am aware that she approached the nurse unit manager and has arranged to reduce her hours to eight shifts a fortnight.

26. I supported this reduction in Denise’s working hours because I do not believe she was coping working full time. I noticed an increase in Denise’s fatigue and deterioration in general demeanour (she looked tired and stressed) when she resumed working full-time hours.

27. Shortly after returning to work after Wayne’s death, Denise had also negotiated with the nurse unit manager that she would not undertake any night shifts and, where possible, she would start an afternoon shift at about 12.30 pm and finish at 9 pm instead of the usual 2.30 pm to 11 pm. Denise informed me that she did this because she has difficulty sleeping due to intrusive thoughts of Wayne’s death. She did not want her disturbed sleep being compounded by working late hours and/or nightshifts.”

14. [14]
    The plaintiff herself gave similar evidence of the significant effect on her psychiatric wellbeing from being informed of her son’s murder and being exposed to the murder scene. She also, as I have previously said, gave evidence of the first defendant’s conduct at the committal proceedings and in the courtroom following the hearing of the appeal and of the aggravating affect this had on her psychological condition.

15. [15]
    Her evidence was supported by that of the second defendant.

16. [16]
    I accept that she has had a very significant psychiatric reaction to the events surrounding her son’s murder and that this has had a marked effect on the first plaintiff’s emotional wellbeing and ability to work. I also accept generally the evidence of Dr Foxcroft, Ms Keane and each of the plaintiffs about the effect it has had on her.

17. [17]
    There are, because of the details of the claim, three matters to which I shall make particular reference.

Bachelor of Nursing

18. [18]
    The first plaintiff left high school when she was 15, attended Liverpool TAFE and completed a nurse’s entry qualification. She then did one year’s training at Queen Victoria Hospital at Picton in New South Wales. As a result she became an endorsed enrolled nurse. She worked in that capacity at that hospital for about another year and then with a nursing agency at Castle Hill for a number of years. She moved to Queensland in September 1995 and from March 1996 to the present has worked at Princess Alexandra Hospital. She works in a 16-bed aged care mental health, acute assessment and admission inpatient ward. She has considerable expertise and experience in that work.

19. [19]
    The plaintiff commenced a Bachelor of Nursing degree at Charles Darwin University in 2003. She had completed 11 subjects by 2004. In all she required 18 subjects for her degree.

20. [20]
    At that time she deferred her study. She says this was due to a divorce which, she said, was also in 2004. I note she remarried to the second plaintiff in August 2006. Her son’s murder was in January 2008, some three years after deferring her studies and 17 months after her remarriage. She said in evidence before me that but for the intervening fact of her son’s murder that she would have returned to her studies in 2008 and completed her degree in 2009. Her claim for economic loss is based on that scenario. She said, and I accept, that as a result of her psychiatric condition she has now lost interest in completing her degree. In my view that loss of interest is entirely understandable and attributable to her psychiatric injury.

21. [21]
    When giving evidence the second plaintiff, in response to questions from me, said he was aware that before he had met the first plaintiff she had been doing a Bachelor of nursing degree. He was asked whether they had had any discussions together about that and said:

  She loved her nursing so much that anything was possible that she – as far as I knew, was going to continue that endeavour so much so that -----

Were there any concrete plans about when that was going to happen or just some general discussion about it?-- As far as I knew, it was going to just continue the way it was going.

When you say, “As far as you knew it was going to continue the way she was going” when you met her in 2005 and 2006, she wasn’t studying for her Bachelor of Nursing was she?-- No.

But had you ever had discussions – and therefore if it was going to continue the way it was going, that means she wasn’t going to be studying. Was that your understanding?-- Well, as far as the discussions that we had in that regard, that was something that she has ticked the box as one of her goals that she did want to definitely continue to do.

Yes, righteo. But that’s what I’m asking. Was there any particular timeframe discussed or anything like that?-- There may have been, I might not just be able to recall exactly about everything we’ve been through if there was a specific date that she did say.-----

22. [22]
    In my view, his answers do not appear to support the first plaintiff’s evidence that she was in fact to resume her studies in the very year of her son’s murder, namely 2008. In my view, in circumstances where she had deferred from 2004 it was highly likely that if she was to resume her studies in 2008 there would have been discussion of that fact with her husband. Furthermore, it is likely there would, by the time of the events of January 2008, have been correspondence between the first plaintiff and the university to that end. None was admitted into evidence and the first plaintiff did not give evidence of any such correspondence.

23. [23]
    In my view, the first plaintiff’s own evidence on this subject was less than satisfactory. She said that she deferred her studies when she did because she “was going through a divorce” in 2004. She said she wanted “to get myself settled, organise my life a bit and then resume them again.” In my view, whilst such a deferral was entirely explicable, if she was intent on completing her course in the short term, as she said in evidence, she could reasonably have been expected to have resumed prior to January 2008.

24. [24]
    I have referred already to paragraphs 17 and 18 of the affidavit of Ms Keane. In circumstances where she deferred her studies in 2004 and had not resumed them by January 2008, the contents of paragraph 18 thereof in particular are somewhat incongruous.

25. [25]
    In the circumstances I have very real reservations about whether the first plaintiff would have resumed her studies in 2008, although I accept that it was likely that in the future she would have done so and also accept that she was likely to have completed them at some stage in the future but for her son’s murder. I do not accept that this would necessarily have occurred by 2009, as postulated in her schedule of damages and as she said in evidence.

First defendant’s conduct

26. [26]
    I accept the first plaintiff’s evidence about the first defendant’s conduct at the committal and after the hearing of his appeal. I also accept that such conduct was designed to cause the first plaintiff distress and indicated a contumelious disregard for her dignity. It was in my view malicious and insulting. I also accept it would have aggravated her psychiatric condition and caused ongoing fear and apprehension in the event he is released from prison.

27. [27]
    I note, however, that there is no reference to this conduct or of its effect on the first plaintiff in the reports of Dr Foxcroft or Ms O'Donnell. The latter of these reports was prepared before the hearing of the appeal, though it was after the committal. There is however reference to it in reports contained in hospital records.

28. [28]
    In the circumstances I find that the behaviour of the first defendant, appalling as it was, had only a minor aggravating effect on the first plaintiff’s psychiatric symptoms, but has had little, if any, significant long-term effects on her psychiatric condition or on her capacity to work. She will have, do doubt, ongoing fear in the event of his being released due, in significant part to, his conduct that I have described.

Economic loss

29. [29]
    I accept that the decision to reduce her working hours to three days per week and to stop working nightshifts as the first plaintiff said and as supported by Ms Keane, was reasonable and appropriate. While there is some prospect in the future that her condition might improve somewhat and that she might again increase her hours, in my view the effect of that is offset by the possibility of future deterioration of her condition, causing a further reduction in her hours of work or by her possible early retirement brought about by her psychiatric condition which, as I have said, results from the murder of her son and her exposure to the aftermath of that incident.

30. [30]
    In the circumstances I propose to allow economic loss on the basis that she might have completed her Bachelors degree and earned consequent higher wages, but propose to calculate future loss by taking an approximate midpoint of the estimate of earnings as an enrolled nurse or as a registered nurse. I shall then calculate loss on the basis of working three or four shifts per week as an enrolled nurse (as she currently does) compared to full time work, earning this midpoint figure, projected to age 67 and reduced by 15% for contingencies. I have adopted a notional retirement age of 67 because changes to the Social Security Act mandate that as the time for receipt of an age pension after July 1^st 2023 (see also Kirchner v ITT Water and Wastewater Ltd [2010] QSC 413 at paragraph 43). I note she will not reach that age until after 2023 and hence that appears to me to be the appropriate notional retirement age.

Damages

31. [31]
    The first plaintiff’s tax return indicates that in the year ended June 2007, the last full financial year prior to the murder, her income from Queensland Health was some $48,422 gross. Employment records from Princess Alexander Hospital indicate that for the 12 months to 30 December 2007 her gross pay was $51,779. On the basis of those figures I find that as an enrolled nurse she was likely to have earned about $1000 per week gross at the time of the accident. Having regard to changes in wages since early 2008 I find her present income, if she was working full time as an enrolled nurse would be about $1100 per week gross.

32. [32]
    I note from her group certificates that in the year ended June 2007 she had also earned $5496 from Acclaim Recruiting and had earned some $4794 from that same employer in 2006 and similar sums in 2005 from Oxley Nursing Service and Blue Care. These were not shown in her tax return and she gave no evidence about these matters. I do not know whether she has continued to earn such sums since and have ignored them for the purposes of calculating economic loss in the absence of any explanation for that income.

33. [33]
    If the first plaintiff had by now been a Registered Nurse, her income would be higher. The plaintiff’s counsel’s submission was that as a registered nurse her gross income would be some $1258 per week in accordance with the Nurses and Midwifes (Queensland Health) Certified Agreement 2009. I accept this is generally in accordance with what might have been expected if she had become so qualified, having regard to the increased wages of a registered nurse under the award and having regard to the hours and shifts that she was working as an enrolled nurse prior to her son’s murder.

34. [34]
    It is now some three years since her son’s death. In circumstances where, at best, it would have taken two years to complete her degree, and where there is no evidence of any correspondence with the university about resuming her studies and in view of the other equivocal evidence I have referred to about this issue, I calculate past economic loss with only a small global increase for the possibility that she might have become so registered. Accordingly, I calculate past economic loss on the basis that her average gross income from January 2008 would have been $1050 per week amounting to net $831 per week. Earnings of $831 per week from 8 January 2008 to 29 April 2011 (172 weeks) amounts to $142,932. She in fact earned $97,383 to 9 February 2011. I estimate her earnings since then at about $8855, being 11 weeks at $805 per week. Consequently, I calculate that her total earnings since 15 January 2008 as some $106,238. Consequently, I calculate past economic loss in the sum of $36,694, which I increase to $40,000 to take account of the possibility of her earning higher wages as a registered nurse.

35. [35]
    I would allow interest thereon at 2.76%pa, being half the Treasury Bond rate as required by s 60(3) of the Civil Liability Act 2003 for 3.3 years, amounting to $3,643.

36. [36]
    If she were currently an enrolled nurse working full time, her expected weekly income would be about $1100 gross per week. As a registered nurse it would be about $1370. Therefore, for the purpose of calculating future economic loss, I estimate her likely earnings would be at the midpoint of these two figures, namely about $1235 per week. This would amount to a net figure of $988 per week.

37. [37]
    As an enrolled nurse working four shifts per week, and without working nightshift, (as she currently does), her earnings are said to be about $873 per week. Consequently, her weekly loss would be some $115 per week. If she is only able to work 3 shifts, as Dr Foxcroft postulates, she would earn only $573 net so that her loss would be some $415 per week. I think it likely that she will work four shifts for some period of the time up to retirement and three shifts per week for others, whereas otherwise she would have worked generally full time. I shall proceed on the basis of estimated losses of $265 per week being an average of the 2 weekly losses referred to earlier in this paragraph. Such figure, when discounted by the usual 15% for contingencies takes account of the risks of the first plaintiff’s subsequent deterioration in her condition, the increased possibility of early retirement and the prospects of her becoming a qualified registered nurse but also has regard to the possibility her condition may improve a little with time and with the end to these proceedings.

38. [38]
    She was born on 24 March 1961 and has therefore just turned 50. Over 17 years to age 67 (multiplier 602.8), a loss of $265 per week over that period, reduced 15% for contingencies amounts to some $135,780, which I round to $136,000 for future economic loss.

39. [39]
    Under the Superannuation (State Public Sector) Deed the first plaintiff is entitled to superannuation at the rate of 12.5% of her gross economic loss. That sum is of course subject to taxation. I will allow superannuation losses at 12.5%. Such loss amounts to 45,000 for the past and $17,000 for the future.

40. [40]
    I allow the following special damages:

41. [41]
    There is also a significant claim for future medical expenses, which is partly supported by the evidence of Dr Foxcroft, to which I have already referred. There are necessarily a significant number of imponderables in respect of her condition. Dr Foxcroft says that it is possible that she might require pharmaceutical expenses for the balance of her lifetime. Having regard to her current age of 50, I note she has a statistical life expectancy of about 30 years, amounting to a multiplier of 904, using the 5% tables. Solicitors have calculated her future medical expenses in the sum of $20,851.93 and her use of Zoloft and Temazepam over her lifetime in the sum of $5,172.

42. [42]
    It is not certain, however, that she will require these for the balance of her lifetime, hence I discount future pharmaceutical expenses to about $4000. Similarly the claimed sum of $20,851 for future psychiatric treatment on the basis that this might be required for five years, together with an allowance for the possibility that she might require treatment beyond this time, together with a sum for general practitioner appointments twice a year for the remainder of her lifetime does not in my opinion take proper account of the possibility her needs may be less. It is, as I have said, not certain that she will require such treatment overt the balance of her lifetime and it is also not certain that the psychiatric treatment will be for the whole of the five-year period. Dr Foxcroft thought that it was likely to be required for a two- to five-year period. Accordingly, I will allow a sum of $12,500 for future medical expenses.

43. [43]
    I assess the plaintiff’s general damages in the sum of $15,200, under Category 12 of the Civil Liability Regulations together with an uplift of 25% due to the severity of her symptoms, amounting to an ISV of 13. This amounts to some $15,200.

Conclusion

44. [44]
    In all therefore I calculate the plaintiff’s damages, excluding any aggravated or exemplary damages, as follows:

45. [45]
    The Plaintiff’s counsel abandoned the claim for exemplary damages because of the decision in Paten v Bale [1999] QSC 265.

46. [46]
    Aggravated damages may however be awarded. In P v R [2010] QSC 139 (at paras 38 ff) it was said that such damages are to be awarded where the defendant has acted, at the time of committing the tort or thereafter, with contumelious disregard for the plaintiff’s rights, or in an insulting way or with malice. Such damages are also usually given to compensate for the aggravating effect of the harm done by the manner in which the defendant has acted. Such damages are not in my view circumscribed by the provisions of the Civil Liability Act.

47. [47]
    I award aggravated damages of $25,000 against the first defendant, because of his contumelious disregard of the first plaintiff and because of his aggravating, insulting, and provocative conduct towards the first plaintiff during the course of the criminal proceedings. In my view, the fear he has instilled in her is a real ongoing disability.

48. [48]
    In all, therefore, I will give judgment for the first plaintiff against the first defendant in the sum of $260,469 and against the second defendant in the sum of $235,469.

49. [49]
    In addition, the second plaintiff has made a claim for loss of consortium and servitium. It is clear that the first plaintiff’s psychiatric condition has had a most significant effect on the relationship she has had with the second plaintiff and on his enjoyment of that marital relationship. The diminished enjoyment of the marriage has extended to their social life. Counsel for the plaintiffs referred me to the following decisions concerning such damages:  Corkery & Ors v Kingfisher Bay Resort Pty Ltd & Anor (2010) QSC 161 at paras 95-97; McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors (2000) QSC 54; and Martin v Nursing Staff Pty Ltd (unreported) Plaint No. 3468 of 1991 per Boulton DCJ January 1993.

50. [50]
    Essentially the claim for loss of consortium is one for loss of things such as comforts, society and assistance of his wife. The focus is more on the material consequences of the loss or impairment of his wife’s society rather than, for example, the emotional consequences for the second defendant. In this regard, see Lebon & Lebon v Lake Placid Resort Pty Ltd & Ors [2000] QSC 049 per Williams J Supreme Court. In that case a sum of only $4000 was awarded, but it must be borne in mind that the relationship between the parties following the plaintiff’s injury resulted in their separation and divorce in only a relatively short time after the accident in that case. By comparison I think it likely that this marriage will survive and consequently the adverse effects of the plaintiff’s psychiatric condition are likely to continue for some time. In addition, that judgment in Lebon is now some 11 years old. In the circumstances I give judgment for the second plaintiff against each defendant in the sum of $12,000.

Costs

51. [51]
    I gave the plaintiffs leave to deliver by email to my associate submissions as to costs within 3 business days, but I indicated that in the absence of such submissions I would order that the defendants are each liable to pay the plaintiffs’ costs of and incidental to the action to be assessed on a standard basis.

Further Costs Submissions

52. [52]
    On 11 May 2011 I received, through my associate, cost submissions from the first plaintiff’s solicitor, Mr. Herd, together with an affidavit attesting to service on 21 February 2011 on the first defendant of an offer to settle in accordance with Chapter 9, Part 5 of the UCPR. The offer was in the amount of $250,000.00, which is of course less than the amount of the damages I assessed he was liable to pay. These submissions were in response to an order I made on 29 April 2011 whereby the plaintiff was given leave to deliver cost submissions to my associate via email by close of business on 3 May 2011.

53. [53]
    On 12 May 2011 I received an affidavit from Mr. Herd sworn on 12 May 2011 stating that an attempt was made by counsel to send cost submissions to my associate on 3 May 2011. This email was exhibit SPH-01 to the affidavit. The affidavit further states that the submissions did not reach my associate due to an error by counsel in entering her email address.

54. [54]
    On 12 May 2011 I ordered that:

1. the first plaintiff serve the cost submissions dated 3 May 2011, the affidavit of service of the offer to settle dated 11 May 2011, the affidavit dated 12 May 2011, and my 12 May order on the first defendant;

2. the first plaintiff provide an affidavit of service of the documents referred to above to my associate via email at the following address: [email protected]; and

3. the first defendant deliver any submissions in respect of the first plaintiff’s application against him for costs on an indemnity basis via email to my associate at the above address within 5 business days after service of the documents referred to in 1 above upon him, whereupon my associate shall provide a copy thereof to the first plaintiff’s solicitor.

55. [55]
    After the expiration of the 5 business days I said I would consider the matter and then make a determination regarding the first plaintiff’s cost submissions.

56. [56]
    On 18 May 2005 I received, through my associate, a further affidavit from the first plaintiff’s solicitor, Mr. Herd, confirming compliance with the above order. Although the affidavit itself makes no mention of serving my 12 May 2011 order on the first defendant, the exhibits to the affidavit, marked SPH-01, indicate that a copy of my order was enclosed with the other documents. Mr. Herd’s affidavit indicates that the required documents were served on the Public Trustee by hand-delivered letter and were also forwarded to the first defendant care of the Woodford Correctional Centre on 16 May 2011.

57. [57]
    Counsel for the plaintiff submits that the first defendant pay the first plaintiff’s costs on an indemnity basis. The basis for this submission is that an offer of settlement in the amount of $250,000 was served on the defendants on 21 February 2011. Neither defendant accepted this offer. On 29 April 2011 I ordered that the first defendant pay $260,469.00 to the first plaintiff.

58. [58]
    In accordance with r 360 of UCPR, if a plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle and the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer then the court must award indemnity costs unless the defendant shows another costs order is appropriate in the circumstances.

59. [59]
    On 25 May 2011 my associate received an email from the Public Trustee enclosing:

1. a facsimile of 24 May 2011 from Kerri Wood, a psychologist at the Woodford Correctional Centre, indicating that the first defendant was an offender at the Woodford Correctional Centre and so was unable to himself correspond by email;

2. a copy of a letter of 17 May 2011 from the Public Trustee to the first defendant enclosing the first plaintiff’s solicitors costs submissions of 16 May 2011, affidavits of S. herd of 11 May and 12 May 2011, and a letter from the plaintiff’s solicitors of 16 May 2011; and

3. handwritten submissions of the first defendant.

60. [60]
    In circumstances where the first defendant did not receive the order I made requiring submissions of 12 May until 20 May 2011, I am prepared to extend the time for receipt of his submissions and take it into account in determining what order is appropriate. This overcomes any difficulty associated with the fact that he says he was unaware of the listing of the matter on 11 May 2011 (in fact my orders relating to service were on the 12 May 2011, I assume this is what he is referring to).

61. [61]
    In his submission the first defendant does not dispute service of the offer pursuant to the UCPR on which the first plaintiff relies. In circumstances where the offer was less than my assessment of the first plaintiff’s damages, and where the first defendant has made no submissions that another order for costs is appropriate (and where I myself am unaware of any such circumstance) I order that the first defendant pay the first plaintiff’s costs of and incidental to the action to be assessed on an indemnity basis.