Al Aaraji v Hales

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AL AARAJI -v- HALES & ORS [2007] WADC 64

CORAM: KEEN DCJ

HEARD: 23 APRIL 2007

DELIVERED : Delivered Extemporaneously on 24 APRIL 2007 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2044 of 2004

BETWEEN: ABD ALAMEER AL AARAJI
Plaintiff
AND
NATHAN DEREK HALES
First Defendant
PETER FERNANDO ESTAY
Second Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Defendant
PETER JOHN COMBS
Fourth Defendant

Catchwords:

Procedure - Costs - Multiple accidents - Plaintiff partially successful

Legislation:

Nil

Result:

Plaintiff awarded 85 per cent of costs
Second defendant awarded costs

Representation:

Counsel:

Plaintiff:     Mr S V Forbes
First Defendant             :     Mr P T Olivier
Second Defendant         :     Mr P T Olivier
Third Defendant           :     Mr P T Olivier
Fourth Defendant          :     Mr P T Olivier

Solicitors:

Plaintiff:     Trewin Norman & Co
First Defendant             :     Talbot Olivier
Second Defendant         :     Talbot Olivier
Third Defendant           :     Talbot Olivier
Fourth Defendant          :     Talbot Olivier

Case(s) referred to in judgment(s):

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

KEEN DCJ: In this matter the plaintiff claimed damages arising out of four motor vehicle accidents. Liability was admitted for the first, third and fourth but denied in respect of the second accident.
In my reasons for judgment, I found against the plaintiff in respect of the second accident. This has consequences in costs both as to liability on that claim and quantum insofar as that accident caused some of the plaintiff's disabilities.
Order 66 r 2 provides:
"In the absence of any special order –
(a)where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought."
I would also note at this stage that O 66 r 1 subrule (2) provides:
"If the Court is of the opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part."
Subrule (3) provides:
"Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increase the costs the Court may order such party to pay the costs of such issue or issues."
In this matter, I note what was said by Anderson J in Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 at 574 ‑ 575 where his Honour said:
"It must be borne in mind that these authorities were decided on rules of court that did not include a rule in the same terms as O 66 r 2(a). In my opinion, the approach required by the rules of this Court is that, once it is seen that separate causes of action are involved, and that the plaintiff has succeeded on only one or some, the defendant is prima facie entitled to his costs on the other or others. However, in my experience, this Court will not make such an order as of course. The court will always look at the realities of the case and attempt to do substantial justice. Thus it may be that, although it is strictly correct to say that different causes of action are involved, there may have been only one contest in substance. This will often be so when all causes of action arise out of the one course of dealings, the one transaction or the same facts. Where that is the situation there will usually be one order for the general costs of the action, moulded as necessary to ensure that, however rough and ready it may be, substantial justice is done: see Godden v Alford [1960] WAR 235 at 237. However, even in such cases it may be shown the successful party has in some relevant way misconducted himself or that the issues or causes of action on which the successful party has failed were unreasonably raised by that party. This would bring into operation different principles."
This is not the present case insofar as that dicta speaks of one course of dealing. In the present case, whilst there has been one notional defendant, in truth there are four defendants. But for the insurance, there is no doubt that the second defendant would firstly not be liable for any part of the plaintiff's costs in relation to the second accident and secondly, be entitled to his own costs.
Here there is one insurer but as I am pressed to award costs to the second defendant, I think on the rules, leaving aside my general discretion, I would be bound to order costs in favour of the second defendant. In this case, Mr Olivier asks for such an order and also seeks costs against the plaintiff to reflect that the plaintiff has failed against the third and fourth defendants on a number of issues.
Mr Forbes for the plaintiff says that I should exercise my discretion to award costs to the plaintiff and to reduce those costs to 90 per cent to reflect that the plaintiff failed against the second defendant.
It seems to me that the argument on costs falls into two distinct parts. Firstly, whether I should make a discrete order in favour of the second defendant or make a reduction in the plaintiff's costs to reflect the second defendant's success. Secondly, whether I should make a separate award of costs to the third and fourth defendants to reflect their success on various issues or make a reduction in the plaintiff's costs.
Dealing first with the position of the second defendant. Whilst some of the work carried out by the second defendant may be common to all of the defendants, for example, in relation to the medical condition of the plaintiff, there is no doubt that the claim against the second defendant was a discrete issue on liability.
It is a case that falls, in my opinion, squarely within O 66 r 2(a). The question is whether I should do as Anderson J did in the PBS v Wheeler case. Of course, as noted by his Honour in that case, I must attempt to do substantial justice between the parties. I note that O 66 r 2(a) is prefaced by the words, "In the absence of any special order" which seems to me to give me a general discretion.
In PBS case, Anderson J described the often found circumstance where all causes of action arise out of the one course of dealings, one transaction or the same facts. That is not the case here so far as liability at least is concerned. Mr Forbes tells me that his analysis of the trial time shows that some 2.6 hours were spent with witnesses on the issues out of the total trial time of 20.2 hours.
My analysis of my bench book reveals that some 22 pages of notes out of a total of 97 pages for the trial dealt with this issue. There were four witnesses involved, the plaintiff, Mr Al Hussami, Mr Estay and Mr Rattew. In addition, behind the scenes, there was the investigator who went to the scene of the second accident, took measurements and drew a plan.
I have no idea of how much preparation was involved on this issue but I accept that the bulk of the medical preparation may have been necessary for the other issues on which the plaintiff succeeded, subject to what I have to say later.
I note what was said by Pullin JA in the case of Flotilla Nominees Pty Ltd v Western Australian Land Authority[2003] WASC 122 where at par 43 he said:
"I am very conscious of the need not to fall into the trap of making an estimate of the time which I consider would have been spent on the task when I do not have all information before me to make a judgment."
It seems to me that to accede to the plaintiff's request to merely make a reduction would be to do what Pullin JA counselled against. To fall into the trap would not be doing substantial justice to the parties as described by Anderson J in the PBS case. Nor would it, in my opinion, be a proper exercise of my discretion.
In my view, the second defendant is entitled to have his costs of defending the action brought against him, both on liability and quantum. As to the latter, this may cause some difficulties in untangling the case by the taxing officer but that is no reason to deprive the second defendant of his right to costs to be taxed.
On the second issue, I have already noted what O 66 r 1 subrules (2) and (3) have to say. Mr Olivier claims that there are a number of issues raised by the plaintiff upon which he failed or substantially failed and that he should pay the third and fourth defendants costs. He points to the plaintiff's exaggeration on which I have made certain findings.
In relation to the force of the impacts in the first, third and fourth accidents, he says that as a result, he had to call evidence, which evidence was accepted by me. Next Mr Olivier says that the plaintiff failed or substantially failed on his claims to have suffered serious psychological and physical injury and these issues took up a good deal of time at the trial.
Mr Forbes says that as to the first part, that is to say the exaggeration of the force of the accident, the defendant should have pleaded this. I accept that if the plaintiff had pleaded severe impact, the defendant ought, by way of pleading, have met that. However, in this case, it seems to me that it was probably the case where the force of the impact was always an issue and would have had relevance to the degree of injury sustained and I note the description of the accident given by the plaintiff to the various doctors.
The case was run on the basis of the force of the impact and my findings in this regard show that to have been the case with the defence calling the defendants involved in the first and fourth accidents. The defence could not do that so far as the third accident was concerned as it involved an unknown driver.
It was the plaintiff's exaggeration both to the doctors and in Court that has led to the case being run on this basis. One wonders what the plaintiff's arguments in closing would have been if these defendants had
not been called. Given the way that the plaintiff has run the case, it was, in my opinion, entirely proper and reasonable for the defence to seek to show the flaw in the plaintiff's case in the way it has been done. The defendants would not have had to do so had the plaintiff been more moderate in describing the accident giving rise to the claims.
As for the extent of the injuries sustained by the plaintiff, I accept that I have found that the plaintiff was not as severely injured with the resultant consequences as he tried to make out. Nevertheless, I found that he did suffer injury or exacerbation as a result of each accident and that there were some, albeit mild, consequences.
I accept Mr Forbes' argument on this issue that the way in which the defendants could have protected themselves was to have made an offer under O 24A but they did not do so. On these issues, I find that the defendants are in reality in no different position to other defendants who have succeeded in convincing the Court that the plaintiff's loss is not as great as he claims.
In the circumstances on the injury issue, I am not prepared to make a reduction in the plaintiff's costs, nor to award costs to the defendant. However, a different position applies to the need to call the witnesses to show that the collisions were not as severe as alleged. As I have said, it was entirely proper and reasonable to call the witnesses and failure to do so may not have brought about the reduction in damages that was achieved.
However, to do justice to the parties, I am of the view that this can be accommodated by a reduction in the costs awarded to the plaintiff and by exercising my discretion in that way. As noted by Pullin JA in the Flotilla Nominees case, I am required to draw on my own experience, to act on impressions gained during the litigation and to take into account the issues which have been involved.
Trial time engaged involved calling the first and fourth defendants, cross‑examination of the plaintiff as to the first, third and fourth accidents and examination of witnesses as to the third accident. However, my impression is that this did not amount to an enormous amount of trial time. I have no idea of what time was spent in preparation and am conscious of what Mr Olivier has said about the need to fly the fourth defendant from Queensland and to accommodate him in Western Australia.
At the risk of falling into the trap referred to by Pullin JA but drawing on my experience and impressions of the trial, I am of the view that to reduce the plaintiff's costs by 15 per cent would do justice between the parties. In arriving at that figure, I accept that some not inconsiderable expense was likely to have been incurred in the calling of those witnesses.
The orders that I propose are:
Firstly, there be judgment for the plaintiff against the first, third and fourth defendants for the sum of $41,960.20.
Secondly, the action against the second defendant be dismissed.
Thirdly, the first, third and fourth defendants do pay the plaintiff 85 per cent of his costs of his action as against the first, third and fourth defendants to be taxed as one set including reserved costs.
Fourthly, the plaintiff do pay the second defendant his costs of the action to be taxed including reserved costs.

[2007] WADC 64

24 APRIL 2007 (Ex tempore, typed from tape and edited by Trial Judge)