Allen v Chadwick (No 2)

[2014] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

ALLEN v CHADWICK (No 2)

[2014] SASCFC 130

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)

24 November 2014

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - GENERALLY

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OFFER OF COMPROMISE MADE

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

On 16 September 2014, the Court delivered judgment in this matter allowing both the appeal in part and the cross-appeal in part.  The matter was stood over to allow the parties to provide calculations of the final judgment sum to be awarded, consistent with the reasons of the Court on appeal and also to provide written submissions concerning the costs of the trial, insofar as the Judge’s orders might need to be varied, and the costs of the appeal.  An unsolicited submission was also received from the appellant concerning an asserted failure by the Court to deal with a contention on the appeal that the Judge had wrongly relied on hourly rates inclusive of Goods and Services Tax in connection with his calculation of the personal care component of the award for future care.

Whether the Judge erred in calculating the personal care component of the respondent’s damages award based upon an hourly rate inclusive of GST, where the appellant relied on a legislated GST exemption for the provision of “home care” provided for under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Whether the Judge erred in finding that the respondent was entitled to her costs of the whole action on a solicitor-client basis but reduced by 15 per cent to allow for time spent in litigating aspects of the damages claim which the Judge found to be based on exaggerated and false evidence, where, prior to the commencement of trial, the respondent had made a liability offer pursuant to which she offered to accept 74.9 per cent of damages as assessed and an assessment of damages offer in the amount of $3,250,000.00 and where the award made by the Judge was in terms more favourable to the respondent than the liability offer, but less favourable than the assessment of damages offer. Whether an order should be made in favour of the respondent as to the costs of the appeal, where the end result of the appeal was that the respondent ultimately succeeded on all questions concerning liability and had the judgment sum increased by more than $400,000.00.

Held (per Gray and Nicholson JJ) (Kourakis CJ agreeing in part):

1.  No basis has been established by the appellant that would justify disturbing the Judge’s assessment for the future care component of the damages award.

2.  As a consequence and by agreement, judgment…