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Stewart v Metro North Hospital and Health Service [No 2][2024] QSC 95

Stewart v Metro North Hospital and Health Service [No 2][2024] QSC 95

SUPREME COURT OF QUEENSLAND

CITATION:

Stewart v Metro North Hospital and Health Service (No 2) [2024] QSC 95

PARTIES:

MICHAEL STEWART BY HIS LITIGATION GUARDIAN CAROL SCHWARZMAN

(plaintiff)

v

METRO NORTH HOSPITAL AND HEALTH SERVICE (ABN 18 499 6277 942)

(defendant)

FILE NO/S:

BS No 4665 of 2022

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers.  Plaintiff’s written submissions filed 10 April 2024.  Defendant’s written submissions filed 26 April 2024.  Plaintiff’s written submissions in reply filed 2 May 2024.

JUDGE:

Cooper J

ORDER:

  1. The defendant pay the plaintiff’s costs of and incidental to the proceeding up to and including 17 July 2023, to be assessed on the standard basis if not agreed.
  2. There be no order as to costs after 17 July 2023.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – WHAT CONSTITUTES VALID OFFER – where the plaintiff received damages of $2,190,505.48 suffered as a consequence of the defendant’s admitted breach of its duty of care in providing him with medical treatment at trial – where the defendant made an offer to settle expressed as having been made pursuant to r 361 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the plaintiff submitted that the offer did not enliven the operation of r 361 because it was not an offer to settle the whole of the plaintiff’s claim and therefore did not comply with r 353 – whether the offer was an offer to settle the whole of the plaintiff’s claim such that it was an offer made pursuant to r 353 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the defendant accepted that the plaintiff should recover his costs on the standard basis up to and including the date the defendant’s offer was made – where the plaintiff had greater success on the issue of his life expectancy than the defendant – where the plaintiff did not establish that the likely health benefits would justify the significantly higher costs for him to receive care and therapy in his own home – where the defendant’s success on that issue had a significant impact on the overall assessment of damages – where the plaintiff otherwise had greater success than the defendant on the issue of the overall assessment of damages separately from the life expectancy issue and the issue as to whether the plaintiff’s damages should be assessed on the basis that he would live in his own home – where the issue of whether damages should be assessed on the basis that the plaintiff would live in his own home accounted for approximately 50% of the costs of the trial with the other two issues accounting for the remaining 50% – whether the plaintiff should recover the costs incurred in prosecuting his claim to trial after refusing the defendant’s offer – whether, if the plaintiff is not entitled to recover those costs, the plaintiff should also be required to pay the defendant’s costs from the date of the offer

Uniform Civil Procedure Rules 1999 (Qld), r 353, r 360, r 361, r 681

Balnaves v Smith [2012] QSC 408, cited

Charter Pacific Corporation Ltd v Belrida Enterprises [2003] 2 Qd R 619, cited

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (2021) 7 QR 1, considered

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2020] QSC 1, cited

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39, approved

COUNSEL:

G Mullins KC with J Liddle for the plaintiff

CC Heyworth-Smith KC with MA Eade for the defendant

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff

Corrs Chambers Westgarth for the defendant

  1. [1]
    On 20 March 2024, I delivered judgment for the plaintiff in the amount of $2,190,505.48 (before fund management fees) as damages for personal injuries suffered as a consequence of the defendant’s admitted breach of its duty of care in providing him with medical treatment.
  2. [2]
    The parties have now filed written submissions addressing the question of costs.  When judgment was delivered, it was anticipated that the parties’ submissions would also address the question of the calculation of fund management fees.  As events have transpired, the parties have agreed that assessment of damages payable in respect of fund management fees should be delayed until after the question of costs has been determined, in circumstances where the amount to be managed on the plaintiff’s behalf will change depending upon the order as to costs.
  3. [3]
    The plaintiff seeks an order that the defendant pay his costs of the proceeding on the standard basis, submitting that there is no reason in the circumstances of this case to depart from the usual order that costs follow the event. 
  4. [4]
    Based on an offer to settle dated 17 July 2023 (Offer), expressed as having been made under ch 9 pt 5 of the Uniform Civil Procedure Rules 1999 (UCPR), the defendant seeks orders pursuant to r 361(2) that:
    1. it pay the plaintiff’s costs of the proceeding on the standard basis up to and including 17 July 2023; and
    2. the plaintiff pay its costs of the proceeding on the indemnity basis from 17 July 2023.
  5. [5]
    Alternatively, if r 361(2) does not operate in the circumstances of this case, the defendant submits that the orders should be:
    1. it pay the plaintiff’s costs of the proceeding on the standard basis up to and including 17 July 2023; and
    2. the plaintiff pay its costs of the proceeding on the standard basis from 17 July 2023 or, alternatively, there be no order as to costs after 17 July 2023.

Offers made under ch 9 pt 5 of the UCPR

  1. [6]
    The plaintiff submits that the Offer did not enliven the operation of r 361 because it was not an offer to settle the whole of his claim.  This requires consideration of the construction of the rules in ch 9 pt 5 of the UCPR.
  2. [7]
    Those rules encourage parties to make offers to settle by prescribing the costs consequences where an offeree rejects an offer that is more advantageous to it than the result at trial.
  3. [8]
    The formal requirements for the making of offers for the purpose of ch 9 pt 5 are set out in rr 353 to 355.  Only r 353 is relevant in the present case.  It provides:

“353 If offer available

  1. (1)
    A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or more of the claims in the proceeding on the conditions specified in the offer.
  1. (2)
    A party may serve more than one offer.
  1. (3)
    An offer must be in writing and must contain a statement that it is made under this part.”
  1. [9]
    In Charter Pacific Corporation Ltd v Belrida Enterprises,[1] Fryberg J observed that both rr 360 and 361 proceed on the basis that the plaintiff or the defendant (as the case may be) has made an offer under r 353.[2]  Byrne SJA made a similar observation in Balnaves v Smith.[3]
  2. [10]
    Fryberg J then proceeded in Charter Pacific to consider whether the word “claims” in r 353(1) should be given the meaning set out in the definition in sch 4 of the UCPR (“a document under ch 2 pt 3 starting a proceeding”), or whether the context of r 353(1) requires that the schedule definition give way to some other meaning.  If the schedule definition applies, then an offer under r 353 must be an offer to settle every dispute or matter in the document constituting the claim.  An offer under r 353 may not offer to settle a particular cause of action among several in the claim, nor one of several elements in the relief claimed.  Despite those matters, Fryberg J concluded that the context did not require that the schedule definition give way to some other meaning.[4]
  3. [11]
    This construction of r 353 was applied by Flanagan J (as his Honour then was) in Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd.[5] 
  4. [12]
    On appeal from the decision of Flanagan J, in Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd,[6] Holmes CJ (with whom Philippides JA and Brown J agreed) did not follow the decision in Charter Pacific as to the meaning of “claims” in r 353(1) in certain respects.  Relevantly, her Honour rejected the suggestion that the schedule definition of “claim” applied to r 353(1), concluding that the more obvious meaning of the expression “claims in the proceeding” is that it refers to “causes of action or claims for relief”.[7]  On that construction, an offer under r 353 may offer to settle a particular cause of action among several in the proceeding, or one of several elements in the relief claimed.  So much is clear from the following statement of Holmes CJ:[8]

“… The problem … that there may be difficulty in comparing the result with an offer to settle only some causes of action, constitutes a risk which a party seeking to make an offer which does not encompass all causes of action must confront: that the result will not neatly fit with the offer.  If a party chooses to settle only some of the claims for relief brought by a plaintiff, its offer may not meet a judgment given for the entirety of the plaintiff’s claim.  And it does not follow that an offer to settle particular issues will result in separate costs orders where there is success on only one or some of those issues.  The onus remains on the offeror to show that the judgment achieved is as good as or better than the offer, which requires some proper basis for comparison.”

  1. [13]
    In my view, the reference in this passage to “an offer to settle particular issues” does not mean that a party could make an offer under r 353 to settle only part of a cause of action or part of a claim for relief.  That would not be consistent with the construction that Holmes CJ gave to the phrase “claims in the proceeding”; namely that a claim is either a cause of action or a claim for relief.  Her Honour noted that an even broader construction of “claims in the proceeding” may be warranted but found it unnecessary to reach a final view on that issue.[9]  Philippides JA and Brown J also expressly stated that it was unnecessary to decide the issue.[10] 
  2. [14]
    I proceed then on the basis that an offer under r 353 may offer to settle a particular cause of action among several in the proceeding or one of several elements in the relief claimed, but it may not offer to settle part of a cause of action or claim for relief.  The defendant appears to accept the correctness of that construction.[11]

Did the Offer comply with r 353?

  1. [15]
    The Offer was made in the following terms:
  1. “1.
    TAKE NOTICE that, subject only to sanction, the Defendant HEREBY OFFERS to pay to the Plaintiff in full and final satisfaction of its liability to the Plaintiff for the claim:
  1. (a)
    $3,000,000 on account of primary damages inclusive of interest and statutory refunds;
  1. (b)
    the Plaintiff’s reasonable fund management and administration fees to be agreed following resolution of primary damages;
  1. (c)
    the Plaintiff’s standard costs of and incidental to the claim including the application for sanction to be agreed, or failing agreement to be assessed according to the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
  1. 2.
    This offer is made in accordance with the provisions of Chapter 9, Part 5 of the UCPR and is open for acceptance for 14 days after the date of service hereof but shall then lapse.
  1. 3.
    This offer may be accepted only by serving a Notice of Acceptance on the solicitors for the Defendant, Corrs Chambers Westgarth.”
  1. [16]
    The plaintiff submits that the Offer did not comply with r 353 because it left one of the heads of damage (fund management and administration fees) to be agreed following settlement as to the amount of “primary damages inclusive of interest and statutory refunds”.  He argues that acceptance of the Offer would not have settled his whole claim because the parties would still have had to agree upon the amount of the fund management and administration fees.
  2. [17]
    I accept that submission.  The plaintiff had only one cause of action in negligence.  He claimed three forms of relief: (i) damages for personal injuries arising from the admitted negligence; (ii) interest; and (iii) costs.[12]  The plaintiff’s entitlement to payment of damages in respect of fund management and administration fees arises from his cause of action in negligence.  Such damages form one part of the overall damages which the plaintiff claimed as relief for the personal injuries caused by the defendant’s negligence.[13]  Once that is understood, it is clear that the Offer only offered to settle part of the plaintiff’s cause of action for negligence.  It only offered to settle part of the plaintiff’s claim for damages for personal injuries arising from the defendant’s negligence; namely those amounts captured by the defendant’s description of “primary damages inclusive of interest and statutory refunds”.  Part of the plaintiff’s claim for damages, relating to fund management and administration fees, would remain on foot, subject to agreement by the parties at some future time.  As the plaintiff submits,[14] at the time the Offer was made, there was scope for substantial dispute about the quantum of reasonable fund management and administration fees arising from differing views about the plaintiff’s life expectancy.  If the Offer had been accepted, but agreement on the quantum of damages for fund management and administration fees had not been reached (whether because of differing views about the plaintiff’s life expectancy or some other reason), that question would have had to be litigated and determined by the Court.
  3. [18]
    As the Offer was not an offer to settle the whole of the plaintiff’s claim, it was not an offer made pursuant to r 353.  Consequently, the Offer did not enliven the application of r 361 (see [9] above).
  4. [19]
    Although, as noted at [14] above, the defendant’s written submissions appeared to accept the correctness of the construction of r 353(1) set out above, those submissions did not engage with the application of that construction to the terms of the Offer.  Instead, the submissions focussed upon the principles which apply when r 361 has been engaged and a comparison must be made between the terms of an offer to settle and the judgment at trial.[15]  None of the reasons the defendant advanced as to why the Offer complied with r 353 satisfactorily addressed the fact that the Offer only offered to settle part of the plaintiff’s claim.[16]
  5. [20]
    Although the defendant correctly identifies the requirement that the comparison to be made under r 361 is the overall effect of the judgment and the Offer, and it can be accepted that upon such an assessment in the circumstances of this case it is clear that the judgment was less favourable to the plaintiff than the offer regardless of the amount of fund management and administration fees,[17] that assessment says nothing about the antecedent question whether or not the Offer was an offer to settle only part of the plaintiff’s claim.  It is irrelevant to the issue whether the Offer complied with r 353.
  6. [21]
    The defendant’s submission that the plaintiff was able to understand the terms of the Offer and make an informed decision as to whether or not to accept it may also be accepted.[18]  But, again, this does not address the question of the effect that acceptance of the Offer would have had in settling the plaintiff’s claim.  It provides no answer to the difficulty that acceptance of the Offer would not have resulted in settlement of the whole of the plaintiff’s claim. 
  7. [22]
    The defendant’s response to submissions by the plaintiff[19] that the terms of the Offer were uncertain does not take the matter any further.[20]  If the Offer is construed in a manner which renders its terms certain, but the effect of that construction is that fixing the quantum of the plaintiff’s damages for fund management and administration fees is deferred to a future time when either (i) the parties agree that sum or (ii) the amount is determined by the Court (whether that determination occurs based on construing the terms on the basis that the Court retained its jurisdiction to determine the quantum,[21] by implying a term to the same effect,[22] following severance of cl 1(b),[23] or upon an application for sanction[24]) then the effect of the Offer would remain as I have set out above: the Offer is not an offer to settle the whole of the plaintiff’s claim.
  8. [23]
    The closest the defendant comes to engaging directly with the difficulty identified above is its submission that, objectively construed in context, the words “to be agreed” in cl 1(b) of the Offer should be understood as referring to the plaintiff identifying and communicating to the defendant the management fees to be charged by a service provider in the market as chosen by the plaintiff after the primary damages amount had been agreed.[25]  The suggestion that, upon that proposed construction the defendant had, by cl 1(b) of the Offer, bound itself to agree to whatever quantum of management fees the plaintiff proposed after the “primary damages inclusive of interest and statutory refunds” had been ascertained (provided that sum was calculated by reference to the rate of fees charged by a service provider in the market) takes no account of the scope for dispute arising from differing views regarding the plaintiff’s life expectancy (see [17] above).  Furthermore, to adopt that construction would, in my view, do too much violence to the words which the defendant chose to use in making the Offer.  Those words plainly contemplated that the quantum of the fund management and administration fees was to be agreed by the parties at some future time.  That such an approach might make sense for practical reasons[26] does not alter my conclusion on the Offer’s non-compliance with r 353(1).  In this regard, I accept the plaintiff’s submission that the fact that parties of good sense would, it might be hoped, negotiate and resolve the quantum of the fund management and administration fees does not mean that aspect of the plaintiff’s damages claim could be said to have been settled by leaving it “to be agreed”.[27]
  9. [24]
    The defendant’s submission that the plaintiff himself made an offer to settle on the basis that the defendant pay “reasonable funds management and administration fees to be agreed or assessed” also does not overcome the problem.[28]  Even if both offers had the same effect – that is, the parties were to seek to agree the amount of fund management and administration fees (subject to sanction) failing which the Court would determine the matter upon an application for sanction of settlement – then, as I have found above, the effect of the each of the offers would not be an offer to settle the whole of the plaintiff’s claim and neither offer would be an offer made under r 353.  That an offer made by the plaintiff might have suffered from the same flaw as the Offer does not alter my view concerning the Offer’s non-compliance with r 353(1).
  10. [25]
    Finally, I do not accept the defendant’s submission that the Offer accords with what the law requires.[29]  In making that submission, the defendant expressly accepts that: (i) a formal offer to settle must be for one or more of the causes of action in the proceeding; (ii) there was only one cause of action, that being an action for damages for negligence; and (iii) fund management and administration fees are a head of damages for that cause of action.  From that position, the plaintiff submits:
    1. if it had ignored the head of damages constituted by management fees in the Offer, or left that head of damages to be determined by the Court, the Offer would not have complied with the rules in ch 9 pt 5 of the UCPR;
    2. it could not identify with any reasonable specificity what that sum would be;
    3. in those circumstances, it did the only thing it could do: seek agreement to the primary damages sum and thereafter agree to the plaintiff’s reasonable management fees consistent with its pleaded case.
  11. [26]
    The first limb of that submission is plainly correct.  However, just because the defendant addressed the issue of fund management and administration fees in the Offer does not mean that the way it chose to do so complied with r 353(1).  Further, I do not accept that difficulty in precisely calculating the amount of fund management and administration fees precluded the defendant from making the Offer on any terms other than that the amount of such fees be agreed at some future time.[30]  To the contrary, I accept the plaintiff’s submission that there was nothing preventing the defendant from making an offer that would have fixed the amount payable for fund management and administration fees in a way that could be sanctioned by the Court. 
  12. [27]
    There is no requirement that a settlement offer deal with fund management and administration fees separately from other heads of damage.  Although such an approach might often be taken in proceedings of the present kind for reasons of practical convenience, there is no reason in principle why damages for fund management and administration fees cannot be included in an all-up offer to settle.  That is so even though, as the defendant submits,[31] fund management and administration fees are charged upon the amount that is to be managed and that figure will only be known with certainty following settlement or judicial determination of the other heads of damage and costs.  There is no requirement that a settlement offer (whether made on an all-up basis or including a separate figure for damages for fund management fees) be founded on a precise estimate of the plaintiff’s ultimate entitlement to damages in respect of management fees. 
  13. [28]
    I do not accept the defendant’s submission that the parties could not have agreed upon, and the Court could not have sanctioned, a settlement which included payment of damages in respect of management fees (whether as part of an all-up offer or as a discrete item) without knowing precisely the amount of the fund to be managed.[32]  Upon an application for sanction, the Court would have needed to be satisfied that it was in the best interests of the plaintiff to accept the offer of settlement.  I accept the plaintiff’s submission that if the offer (in whatever form it was made) represented a fair and reasonably accurate estimate of the plaintiff’s expected damages, accounting for liability risk if appropriate, it would usually be thought to be in the plaintiff’s best interests to sanction the settlement even though some uncertainty about the plaintiff’s actual future fund management fees would exist.[33]
  14. [29]
    That the defendant considered that these uncertainties rendered it unable to specify an amount in the Offer in respect of fund management and administration fees (and from the terms of his own offer, the plaintiff might have held a similar view) does not alter my conclusion that the approach of leaving damages for fund management and administration fees “to be agreed” did not amount to an offer to settle that aspect of the claim.
  15. [30]
    For these reasons, the Offer did not comply with r 353(1) and, consequently, did not enliven the operation of r 361.  It is therefore unnecessary to consider further arguments regarding whether the defendant was willing and able to carry out what was proposed in the Offer (see r 361(1)(c)); or whether, if r 361 did apply, some other order for costs is appropriate in the circumstances (see r 361(2)).

Exercise of the costs discretion under r 681

  1. [31]
    Having concluded that r 361 does not apply in this case, the question of costs is governed by r 681.  That rule provides that the costs of a proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise.
  2. [32]
    The principles which guide the exercise of the costs discretion were summarised by Bond J (as his Honour then was) in Speets Investment Pty Ltd v Bencol Pty Ltd (No 2):[34]

“[12] The policy considerations which underly both rules are those McHugh J explained in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67]-[68], namely:

‘… the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.  The principle is granted in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant.  Costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. 

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved.  Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.’

[13] The word ‘event’ in the general rule is to be approached distributively with the consequence that it refers to the event of an issue or of each separate issue, if there is more than one, in the proceeding: Thiess v TCN Channel 9 Pty Limited (No 5) [1994] 1 Qd R 156 at 207–8; Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 at 60-1 [82]–[84]; Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) at [3]–[7]; Allianz Australia Insurance Ltd v Swainson at [4]–[5].

[14] It is important to recognise, however, that it does not follow from the foregoing that the application of the general rule should usually lead to costs orders which reflect different results on separate events or issues.  The Court is given a broad discretion and is specifically empowered to determine that some other order is more appropriate.

[15] In practice, courts often take the approach of identifying heads of controversy or ‘units of litigation’ (rather than what might technically be regarded as issues on the pleadings) regarding success or failure on the head of controversy or unit of litigation as the criterion for awarding costs: see Thiess v TCN Channel 9 Pty Limited (No 5) at 207-8 and Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168 at [1].

[16] The general approach is that there must be special or exceptional circumstances to warrant depriving a successful party of its costs and the mere fact that the successful party has been unsuccessful on some issues will ordinarily not be sufficient to do so: Courtney v Chalfen [2021] QCA 25 at [5].  On an appeal, for example, where a party has succeeded on one of two ways to the same outcome, the Court of Appeal might well regard the costs of the second way on which that party failed as not so distinct conceptually or practically as to warrant making a costs order which reflected that party’s failure: Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd at [1].  On the other hand, one circumstance in which it might be appropriate to award costs of a particular question or part of a proceeding is where that matter is definable and severable and has occupied a significant part of the proceeding: see Courtney v Chalfen, in which the Court of Appeal referred with approval to the decision of McMurdo J (as his Honour then was) in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64 at [8].

[17] Of course, it does not follow that an issues-based costs order should always be made in circumstances analogous to those described by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Where there are multiple issues which are determined in different directions as between the parties, a court might form an overall impression having regard to the significance of the issues, the way they were determined, and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to reflect fairly the parties’ comparative success or failure in the outcome which was obtained.  Courts often prefer to avoid the complicated form of costs assessment that would follow if different issues are determined in different directions as between the parties and costs were to be awarded in respect of issues.  In this regard, in Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, the New South Wales Court of Appeal observed at [9] where taking such an approach might result in a protracted assessment process:

‘… It is more efficient, and fairer, for the court simply to net-off [orders for issues in different directions as between the parties], which it is entitled to do (see Day v Humphrey [2018] QCA 321 at [13] per the court).  Such an assessment will, undoubtedly be ‘rough and ready’ (Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and that is entirely permissible.’”

  1. [33]
    As noted in [5] above, the defendant accepts that the plaintiff should recover his costs on the standard basis up to and including 17 July 2023, that being the date the Offer was made.  I accept that it is appropriate to make an order to that effect. 
  2. [34]
    The issues to be determined, having regard to the parties’ respective success at trial and any other relevant matters, are (i) whether the plaintiff should recover the costs he incurred in prosecuting his claim to trial after refusing the Offer and (ii) if the plaintiff is not entitled to recover those costs, whether he should also be required to pay the defendant’s costs from the date of the Offer.
  3. [35]
    The plaintiff succeeded at trial in the general sense that he was awarded substantial damages.  However, it would be incorrect to conclude that, by reason of that fact alone, the plaintiff’s success at trial means that costs should follow the event and he should recover all his costs on the standard basis.  In the circumstances of this case, such a conclusion would be inconsistent with the principle that the word “event” in r 681 is to be approached distributively.[35]  It is more appropriate to consider the parties’ respective success at trial by reference to the “units of litigation” that were addressed during the course of the trial.[36]
  4. [36]
    Applying that approach, the matters litigated at trial can be appropriately considered under the following broad categories:
    1. the plaintiff’s life expectancy;
    2. whether the plaintiff’s damages should be assessed on the basis that he would live in his own home, rather than at Ozanam;
    3. the overall assessment of damages, separate from the first to issues.

Life expectancy

  1. [37]
    The defendant refers to the difference between the Court’s finding (life expectancy of five years from age 71) and the figures the plaintiff contended for at various stages of the proceeding: a further 17 years in the plaintiff’s pre-court statement of loss and damage; a further 16 years in the plaintiff’s statement of loss and damage dated 6 December 2022; and a further 10 years in the special damages bundle tendered at the commencement of trial. 
  2. [38]
    The figure contended for at the commencement of trial was based upon the evidence which the plaintiff expected to lead from Dr Buckley.  That position changed after the plaintiff’s application to call both Dr Buckley and Dr Rotinen-Diaz as experts in his case was refused and he elected to call Dr Rotinen-Diaz in place of Dr Buckley.  Following that change, the plaintiff contended for a life expectancy of six years.  That figure was founded on the evidence of Dr Rotinen-Diaz (and consistent with the evidence of Dr Strauss) with an increase of one year – from five years to six years – to take account of the possibility of improvement in the plaintiff’s condition if he was to receive comprehensive care and therapy in his own home.  I did not ultimately accept the plaintiff’s submission that his damages should be assessed on the basis that he would be cared for in his own home.  Accordingly, I did not accept that the I should adopt a life expectancy of six years.  That I did not accept the plaintiff’s submission about being cared for in his own home is relevant in considering the costs of that issue, but I do not consider it should impact my assessment as to which party was successful on the issue of life expectancy.
  3. [39]
    The defendant submitted at trial that the plaintiff’s life expectancy was four years at best, and more likely two to three years.  That position relied on the evidence of Dr Karrasch which I did not accept. 
  4. [40]
    Having regard to those respective positions and the result at trial, I consider that the plaintiff had greater success on the issue of life expectancy than the defendant.  I am not satisfied that there is a proper basis to conclude he should not recover his costs of that issue from the date the Offer was made. 

Health benefits to the plaintiff from living in his own home

  1. [41]
    Although he succeeded on several subsidiary matters relevant to this issue,[37] the plaintiff did not establish that the likely health benefits would justify the significantly higher costs for him to receive care and therapy in his own home.  I infer that the plaintiff refused the Offer because the proposed settlement amount did not adequately reflect his claim to damages calculated on the basis that he would live in his own home.  Once the plaintiff refused the Offer, the defendant was put to the cost of litigating the issue.  It succeeded on the issue and its success had a significant impact on the overall assessment of damages.  In those circumstances, I am satisfied that the plaintiff should not recover his costs in respect of that issue from the defendant.  Instead, the plaintiff should be required to pay the defendant its costs in respect of that issue from the date that the Offer was made.

Overall assessment of damages (excluding the first two issues)

  1. [42]
    Although the plaintiff did not press some of his claims and reduced other claims in his final submissions,[38] I consider him to have had greater success than the defendant on this issue.  The defendant contended for an award of damages of $827,500.00 after payment of the agreed Medicare refund amount.  Deducting that refund amount from the judgment sum leaves a figure of $1,607,345.56.  That is almost double the figure the defendant contended for.  That significant difference leads me to the conclusion that the plaintiff succeeded on this third issue and should recover his costs.

Outcome

  1. [43]
    The three issues identified above did not occupy the same amount of time at trial nor did they have the same impact on the parties’ respective success overall.  Viewed broadly, it seems to me that the issue whether damages should be assessed on the basis that the plaintiff would live in his own home accounted for about 50% of the costs of the trial.  The two issues in respect of which I have concluded the plaintiff should recover his costs after the date of the Offer accounted for the remaining 50%.  That is, the plaintiff is entitled to be paid 50% of his costs from the date of the Offer.  Likewise, the defendant is entitled to be paid 50% of its costs from the date of the Offer.  In those circumstances, I consider that the appropriate course is to net off those entitlements.  The outcome is that I consider there should be no order as to costs from 17 July 2023.

Conclusion

  1. [44]
    The orders will be:
  1. The defendant pay the plaintiff’s costs of and incidental to the proceeding up to and including 17 July 2023, to be assessed on the standard basis if not agreed.
  2. There be no order as to costs after 17 July 2023.

Footnotes

[1]  [2003] 2 Qd R 619 (Charter Pacific).

[2]  Charter Pacific, 625 [13].

[3]  [2012] QSC 408, [12].

[4] Charter Pacific, 625-626 [14]-[16].

[5]  [2020] QSC 1, [31]-[32].

[6]  (2021) 7 QR 1.

[7]  (2021) 7 QR 1, 17-18 [29].

[8]  Ibid.

[9]  (2021) 7 QR 1, 18 [30].

[10]  (2021) 7 QR 1, 33 [83]-[84].

[11]  Defendant’s submissions on costs, [81] and [112].

[12]  Claim filed 22 April 2022 (CFI 1).

[13] Gray v Richards (2014) 253 CLR 660, 667 [10]-[11].

[14]  Plaintiff’s reply submissions on costs, [5]-[9].

[15]  Defendant’s submissions on costs, [84]-[85].

[16]  Defendant’s submissions on costs, [86]-[117].

[17]  Defendant’s submissions on costs, [88]-[90] and [95].

[18]  Defendant’s submissions on costs, [91]-[93].

[19]  Plaintiff’s submissions on costs, [29].

[20]  Defendant’s submissions on costs, [94]-[107] and [113]-[116].

[21]  Defendant’s submissions on costs, [101](b).

[22]  Defendant’s submissions on costs, [105]-[106].

[23]  Defendant’s submissions on costs, [103]-[104].

[24]  Defendant’s submissions on costs, [104] and [115].

[25]  Defendant’s submissions on costs, [97](e) and [101](a).

[26]  Defendant’s submissions on costs, [97](b).

[27]  Plaintiff’s reply submissions on costs, [11].

[28]  Defendant’s submissions on costs, [108]-[111].

[29]  Defendant’s submissions on costs, [112].

[30]  Defendant’s submissions on costs, [97](b), [112] and [114].

[31]  Defendant’s submissions on costs, [44].

[32]  Defendant’s submissions on costs, [45].

[33]  Plaintiff’s reply submissions on costs, [23].

[34]  [2021] QCA 39 (Speets Investment), [12]-[17].

[35] Speets Investment, [13].

[36] Speets Investment, [15]

[37]  Plaintiff’s submissions on costs, [55].

[38]  Defendant’s submissions on costs, [192]

Close

Editorial Notes

  • Published Case Name:

    Stewart v Metro North Hospital and Health Service (No 2)

  • Shortened Case Name:

    Stewart v Metro North Hospital and Health Service [No 2]

  • MNC:

    [2024] QSC 95

  • Court:

    QSC

  • Judge(s):

    Cooper J

  • Date:

    22 May 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 4120 Mar 2024Trial of claim for damages for personal injuries arising out of negligent medical treatment; quantum in issue; judgment for plaintiff for $2,190,505.48 before management fees: Cooper J.
Primary Judgment[2024] QSC 9522 May 2024Costs judgment: Cooper J.
Appeal Determined (QCA)[2024] QCA 22515 Nov 2024Appeal against primary judgment dismissed; subject to orders below being amended to insert $2,171,244.03 in place of $2,190,505.48, cross-appeal dismissed: Boddice JA (Mullins P and Ryan J agreeing).
Appeal Determined (QCA)[2024] QCA 22615 Nov 2024Appeal against costs judgment dismissed: Boddice JA (Mullins P and Ryan J agreeing).
Appeal Determined (QCA)[2024] QCA 24706 Dec 2024Costs of appeal and cross-appeal determined: Mullins P, Boddice JA and Ryan J.
Application for Special Leave (HCA)File Number: B71/202410 Dec 2024Application for special leave to appeal filed.
Special Leave Granted (HCA)[2025] HCADisp 3506 Mar 2025Special leave granted (on ground (c)): Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.
HCA Judgment[2025] HCA 3403 Sep 2025Appeal allowed, orders below set aside, matter remitted for assessment of damages and consequential orders; Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

Cases Cited

Case NameFull CitationFrequency
Balnaves v Smith [2012] QSC 408
2 citations
Jump To
Cite 1 - [2012] QSC 408
Cite 2 - [2012] QSC 408
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64
1 citation
Jump To
Cite 1 - [2009] QSC 64
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
1 citation
Jump To
Cite 1 - [2008] FCAFC 107
Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd[2003] 2 Qd R 619; [2002] QSC 319
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 619
Cite 2 - [2003] 2 Qd R 619
Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 168
1 citation
Jump To
Cite 1 - [2015] QCA 168
Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 4) [2020] QSC 1
2 citations
Jump To
Cite 1 - [2020] QSC 1
Cite 2 - [2020] QSC 1
Courtney v Chalfen [2021] QCA 25
1 citation
Jump To
Cite 1 - [2021] QCA 25
Day v Humphrey [2018] QCA 321
1 citation
Jump To
Cite 1 - [2018] QCA 321
Gray v Richards (2014) 253 CLR 660
1 citation
Jump To
Cite 1 - (2014) 253 CLR 660
Interchase Corporation Limited v ACN 010 087 573 Pty Ltd[2003] 1 Qd R 26; [2001] QCA 191
1 citation
Jump To
Cite 1 - [2003] 1 Qd R 26
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
2 citations
Jump To
Cite 1 - [2021] QCA 39
Cite 2 - [2021] QCA 39
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
1 citation
Jump To
Cite 1 - [1994] 1 Qd R 156
Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd(2021) 7 QR 1; [2021] QCA 8
5 citations
Jump To
Cite 1 - (2021) 7 QR 1
Cite 2 - (2021) 7 QR 1
Cite 3 - (2021) 7 QR 1
Cite 4 - (2021) 7 QR 1
Cite 5 - (2021) 7 QR 1
Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173
1 citation
Jump To
Cite 1 - [2019] NSWCA 173

Cases Citing

Case NameFull CitationFrequency
Metro North Hospital and Health Service v Stewart [2024] QCA 226 1 citation
1

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