Vulin v Cox [2004] ACTSC 113 (17 September 2004)

Last Updated: 29 October 2004

Vulin v Cox [2004] ACTSC 113 (17 September 2004)

No. 335 SC of 2003

Judge: Allsop J

Supreme Court of the ACT

Date: 17 September 2004

IN THE SUPREME COURT OF THE )

) No.335 SC of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MIROSLAVA DEBROSLAVA VULIN

Plaintiff

AND: JAMES MILTON COX

Defendant

ORDER

Judge: ALLSOP J

Date: 17 SEPTEMBER 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $119,875.21.

2. The defendant pay the plaintiff's costs up to 25 April 2003 on a party/party basis, after 25 April 2003 on an indemnity basis, subject to two qualifications, they being

(a) that the defendant's costs thrown away by the adjournment of the hearing on 2 March 2004 be paid by the plaintiff, and

(b) there will be no order for costs as to the argument today, 17 September 2004.

1. There are two issues of costs before me today. I delivered reasons yesterday morning as to the substance of the matter and I will make final orders today in accordance with the reasons I gave yesterday. The substance of the matter was that I have awarded damages in total somewhat above $100,000, the substantial component of which was a figure for future economic loss and impaired capacity in the sum of $75,000 reached in a way I described yesterday.

2. As I indicated yesterday, the amount was reached on a basis that I was satisfied that there was the risk of future impairment and to that extent a rejection of the proposition that the injury had resolved itself already. On 25 February 2003 the solicitors for the plaintiff sent to the solicitors for the defendant a letter entitled "Without prejudice, save as to costs" being what is usually called a Calderbank letter, in that letter the offer was made for an acceptance of $30,000 plus costs.

3. The disparity between the awarded sum and the Calderbank offer is relevant. Mr Wilson has indicated that unless I am satisfied that the plaintiff was giving anything away, I should not contemplate a higher award of costs than usual party/party and he points to the state of the prospective evidence at that time, and in particular the views of Dr Griffiths, the specialist, and his report of 6 November 2002. Dr Griffiths was retained by the solicitors, and that report was sent to the solicitors for the plaintiff.

4. In that report after an examination of the plaintiff in the late stages of her pregnancy with her second child the doctor did say that it was likely that the injury itself will not ultimately compromise her earning capacity when she returns to work after maternity leave, should she wish to do so. The evidence and the other medical material after that date led to the view that I came to in my reasons. The same report however indicated that the plaintiff was continuing to complain of pain and the report was made without the benefit of an MRI which later was undertaken. And under diagnosis the doctor said:

Probable induction of C5-6 disc prolapse annular tear suspected on the CT unproven because this modality does not display the precise nature of a disc disruption.

5. It is unnecessary to go back over all the medical material and the facts of the case. I think the offer can be seen as the plaintiff giving up something in this sense, that she was through her solicitors limiting her claim to the past and to pain and suffering and other general damages on the assumption that she would get nothing for future economic loss. I do not think the medical evidence so clearly demonstrated that that was likely to be the position, and for whatever reason that the plaintiff wished to terminate the litigation for that sum, it was a fair and reasonable compromise of a neck injury claim which, through no fault of her own, had been inflicted on her by the defendant with the negligent driving that had occurred.

6. In all the circumstances, I think it appropriate to award a higher sum in the circumstances of the rejection of that amount. The usual practice on a Calderbank application would be to require the costs to be paid thereafter on an indemnity basis and subject to what follows I would do so from a point 2 months after 25 February 2003. I say 2 months; the letter did not have a precise end date for acceptance. It did ask instructions to be sought within 14 days. I think a reasonable time in all the circumstances would have expired by 2 months after the date of the letter.

7. The qualifications to that award as to costs are as follows. The matter was listed for hearing in early March. An application for an adjournment was made on that date, that is, 2 March, by the plaintiff in circumstances where Dr Newcombe had one month earlier provided a report. That report had not been provided, however, to the solicitors for the plaintiff, but had been provided to the treating GP, Dr Bills. The plaintiff's solicitors only became aware of it in inspection of Dr Bills' documents in mid to late-February.

8. The application to adjourn was not made until the day of the hearing, that is 2 March. No doubt, the solicitor for the plaintiff wished to have the assistance of counsel and I make no criticism of the solicitors or counsel for the failure to make the adjournment one week before rather than on the day. I think the result would probably be much the same. I accept, as the Master did, that it was not through the fault of the plaintiff personally. However, litigation has to run in some orderly fashion. The fact is the matter was set down for hearing, counsel were briefed, solicitors made ready, doctors were organised and then the matter was adjourned. Such costs as were thrown away on that day in my view should be paid by the plaintiff.

9. The second qualification as to the indemnity costs order is the costs of today. Mr Parker has been successful in relation to one matter; Mr Wilson has been successful in relation to the other. I think in relation to today's argument, subject to hearing from either or both counsel, that there should be no order for costs as to the two arguments today.

10. I order that judgment be entered for the plaintiff in the sum of $119,875.21. I order that the defendant pay the plaintiff's costs up to 25 April 2003 on a party/party basis, after 25 April 2003 on an indemnity basis, subject to two qualifications, they being (a) that the defendant's costs thrown away by the adjournment of the hearing on 2 March 2004 be paid by the plaintiff, and (b) as to the costs of today, 17 September 2004, there will be no order for costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Allsop.

Associate:

Date: 25 October 2004

Counsel for the Plaintiff: Mr F G Parker

Solicitor for the Plaintiff: Baker, Deane & Nutt

Counsel for the Defendant: Mr D Wilson

Solicitor for the Defendant: Phillips Fox

Date of hearing: 13 & 14 September 2004

Date of judgment: 17 September 2004