Andrew Martin v Francis Kenneth Stratman and Rod Manning No. SCGRG 90/468 Judgment No. 3700 Number of Pages 6 Costs Recovery of Costs

[1992] SASC 3700

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Costs - recovery of costs - plaintiff's damages assessed at $121, 632 and, after allowing for apportionment of responsibility between defendants and first defendant's workers compensation credit, judgement entered against first defendant for $65;245 and against second defendant for $103,387.20, with cross-directions as to contribution between defendants - whether plaintiff should be denied costs under r.l0l.02A of Supreme Court Rules or 5.42 of Local and District Criminal Courts Act - r.101.02A made after case entered for trial - difficulty as to meaning of "motor vehicle" - relevance of workers compensation payments. Costs - liability to plaintiff apportioned 85/15 between defendants - whether plaintiff's costs should be similarly apportioned - whether each defendant entitled to recover against other defendant rateable proportion of own costs of the action.

HRNG ADELAIDE, 27 October 1992 #DATE 16:11:1992
Counsel for plaintiff:             Mr P J Day
Solicitors for plaintiff:            Mellor Olsson
Counsel for defendant Stratman:     Mr J A Carr
Solicitors for defendant:            J A Carr and Co
Counsel for defendant Manning:     Mr M I Bell
Solicitors for defendant:            Lawson Downs

ORDER
Order giving each defendant, with respect to his joint and several liability to pay the plaintiff's costs, a right of recovery against the other defendant proportionate to the latter's share of the blame for the plaintiff's injuries.

JUDGE1 COX J I delivered judgement in this action on 27 October 1992. The first defendant was the plaintiff's employer and the second defendant the manufacturer and hirer of an implement that overturned and resulted in the plaintiff's injuries. I found both defendants liable to the plaintiff. I apportioned the blame between them at 15/85 in the first defendant's favour. I assessed the plaintiff's damages at $121,632. For reasons that I explained at the time, I entered judgement against the first defendant for $65,245 and against the second defendant for $103,387.20, with complicated cross-directions designed to give effect to the contribution provisions of the Wrongs Act and at the same time give the first defendant proper credit for the workers compensation payments he had already made to the plaintiff. 2. The plaintiff has sought an order that his costs of the action be paid by both defendants. This is opposed. The defendants argue that the plaintiffs should not get any costs at all. Their respective counsel rely upon the new r.101.02A of the Supreme Court Rules and, alternatively, s.42 of the Local and District Criminal Courts Act as it stood until recently. I have had the benefit of the parties' written submissions on these questions. 3. Both the Supreme Court and the District Court now have unlimited jurisdiction in personal injury claims of this sort, but plaintiffs are discouraged from suing in the Supreme Court when that is not appropriate by certain provisions as to costs. Sub-section (1) of s.40 of the Supreme CourtAct gives the Supreme Court a general discretion as to costs, but sub-s.(2) reads -
    "If -
    (a) an action for the recovery of damages or any other
    monetary sum is fought in the Court;
    (b) the action might have been brought in the District
    Court; and (c) the plaintiff recovers less than an amount
    fixed by rules for the purposes of this paragraph, ... no
    order for costs will be made in favour of the plaintiff
    unless the Court is of the opinion that it is just, in the
    circumstances of the case, that the plaintiff should recover
    the whole or part of the costs of action." 4. Rule 101.02A of the Supreme Court Rules reads -
"For the purposes of Section 40(2) of the Supreme Court
    Act 1935 the amounts fixed below are the amounts in respect
    of which no order for costs will be made in favour of a
    plaintiff unless the Court otherwise orders:
    (a) Where the claim is for damages or compensation for
    injury, damage or loss caused by, or arising out of, the use
    of a motor vehicle - $150,000;
    (b) Where the claim is for damages in actions for defamation
    - $25,000;
(c) In any other case to which Section 40(2) applies -
$75,000;" 5. Section 40(2) and r.101.02A effectively replace s.42 of the Local and District Criminal Courts Act (now repealed) as the sanction against bringing relatively small claims into the Supreme Court. It will be noticed, however, that there is not now any sort of half-way haven for litigants as there was (or perhaps simply appeared to be) under s.42. While the Court retains a discretion to order otherwise, the general rule now is that unless the plaintiff recovers the stipulated amount he will get no costs at all. It is thus necessary for a plaintiff's advisers to reckon carefully the likely outcome of the case before instituting proceedings. 6. I described in my earlier reasons the machine, called a Hydrasquirt, that was involved in this accident. In short, it is a mobile platform on which a fruitpicker can stand in order to harvest fruit that he cannot reach from the ground. It has its own motor to power the wheels and to raise or lower the platform. It can move across the ground at a speed of about two and a half kilometres an hour. The obvious purpose of its mobility is to move it around the fruit block. It would be possible to drive a Hydrasquirt along a public road but I suspect that this is not common. A Hydrasquirt would generally be regarded as a piece of farm machinery. The normal way to move it any considerable distance would be by towing it, possibly, or by putting it onto the back of a lorry. 7. The defendants' argument is that the Hydrasquirt that was involved in the plaintiff's accident was a motor vehicle within the meaning of r.101.02A. The plaintiff argues otherwise. I do not need to decide the question, at least for the purpose of r.101.02A, because I do not think that it would be fair to apply the stringent costs sanction created by the rule to this particular action. 8. The plaintiff issued his summons out of this Court in February 1990. The case was listed for trial in May 1992 but it was not reached because there was no Judge available to hear it. There was another listing conference on 26 May 1992 and the action was entered for trial on 14 September 1992. And that is when the trial actually began. Meanwhile, on 6 July 1992, the new r.101.02A had come into force. If the plaintiff was justified originally in suing in this Court, it would have been quite unreasonable to expect him to apply to have the proceedings removed to the District Court, after the action had been given a trial date, for fear that he might otherwise be prejudiced by the new costs order. There is also a question whether, as a matter of policy, it would have been desirable to oblige the District Court to cope with additional cases of this sort remitted from the Supreme Court. Cf. Stevens v. Chandler
(1988) 46 SASR 541. Assuming, therefore, that the plaintiff might be in trouble under r.101.02A but not under the costs provisions that preceded it, I am willing to exercise in the plaintiff's favour the discretion that the rule, following s.40 of the Act, preserves. 9. Under s.42 of the Local and District Criminal Courts Act, interpreted in accordance with the definition of "the local court jurisdictional limit" in s.4, a plaintiff was to have his judgement only, and no costs, where he sued in the Supreme Court and recovered no more than $75,000 in a damages action in tort arising out of the use of "a motor vehicle" or no more than $50,000 in any other action in tort. The Court had a judicial discretion to order otherwise but that was the general rule. 10. Again, the question arises whether the Hydrasquirt was a motor vehicle within the meaning of s.4. As with the Supreme Court Rules, the expression "motor vehicle" was not defined. (Cf. Wrongs Acts.35(a)(6) which picks up the definition of "motor vehicle" in s.5 of the Motor Vehicles Act, and s.54 of the Workers Rehabilitation and Compensation Act which in effect does much the same thing. The Road Traffic Acts.5 has its own definition.) The defendants' case is that the expression "motor vehicle" in s.4 should be interpreted widely and not confined to the Motor Vehicles Act definition or restricted to a motor vehicle being driven on a road. The plaintiff, as I understand it, also favours an interpretation of "motor vehicle" disengaged from statutory definitions, but says that the reference to a motor vehicle in the Local and District Criminal Courts Act should be restricted to a motor vehicle that is on a road. 11. As I have said, the plaintiff's damages were assessed at $121,632. Given the negligence of both defendants, the plaintiff could normally have expected to get a judgement against each of them, expressive of their joint and several liability to him, for the whole of that amount. However, the workers compensation payments created a problem. They were paid to the plaintiff by the first defendant and they amounted to $56,387. Had this been a simple case of a workman suing only his employer and succeeding, the latter would have been entitled to have the workers compensation payments deducted from the sum recoverable by the plaintiff in the common law action. Workers Compensation Act 1971 s.82(6). In such a case it could properly be said that the plaintiff had "recovered", within the meaning of s.42 of the Local and District Criminal Courts Act, only the difference between those two amounts, namely, $65,245. See Lazarevski v. Woodfast Machinery Company (No. 2) (1990) 156 LSJS 99. However, here there were two defendants, the employer and a concurrent tortfeasor, and the plaintiff succeeded against them both. He has in fact obtained a judgement against the first defendant for $65,245 and against the second defendant for $103,387.20. However, he was practically obliged in the circumstances of this case, including the plea of contributory negligence that was made if not in the end persisted with by the second defendant, to sue the latter for the whole of his assessed damages, and the amount for which judgement was eventually entered against the respective defendants was greatly complicated by the need to give practical if not formal effect to the Workers Compensation Act indemnity provisions. See my earlier reasons. While the practical result of a judgement of this sort against two defendants will generally be that each pays to the plaintiff only his due proportion of the judgement, according to his share of the blame, entering judgement in the usual solidary form in this particular case was not a mere gesture. Besides, even if allowance is made for the workers compensation payments in this case, the effective judgement against the second defendant still exceeds one half of the District Court's jurisdictional limit (that is, exceeds $75,000 or $50,000), whether this action involved the use of a motor vehicle or not. Obviously the plaintiff was justified in suing both defendants, and he could hardly have been expected to sue one in the District Court and the other in the Supreme Court, so it is not to the point that the effective judgement against the first defendant may have been for less than the District Court's jurisdictional limit. 12. For these reasons the plaintiff is entitled, in my opinion, to an order that the defendants pay his costs of the action. 13. I might say that, had the question whether the Hydrasquirt was a "motor vehicle" been critical to the costs issue and, let it be supposed, decided adversely to the plaintiff, I doubt whether I would have deprived the plaintiff of his costs. I see no good reason, as at present advised, for applying to r.101.02A or s.4 a definition taken from other legislation, but there is obviously room for argument as to whether the Hydrasquirt was a motor vehicle in the ordinary sense of that term. Mobile machines such as graders and farm implements and mobile scaffolds are typical problem cases in legislation that refers to motor vehicles, in one context or another, and it would be unreasonable to require a plaintiff to forfeit the whole of his costs in a borderline case such as this should he happen to make a wrong guess. 14. Counsel for the first defendant applied in his written submission for an order that, in the event of the plaintiff being awarded costs against both defendants, the first defendant pay 15 per cent of those costs and the second defendant 85 per cent. The second defendant opposed any such order. 15. The power to make a differential order of this kind is doubtless within the Court's general powers as to costs. Of course, it will be a matter of discretion. There are arguments both ways. It might be said that the first defendant could have protected himself before trial against the normal operation of the usual solidary costs order by notifying his co-defendant that he was willing to accept 15 per cent of the blame for the plaintiff's injuries. I can conclude that he did not do that. However, it is a common practice in this jurisdiction, as elsewhere, for a court to apportion the plaintiff's costs against multiple concurrent tortfeasor defendants in the same proportion as the damages themselves are apportioned. The matter does not seem to get much attention in the text books but there are plenty of instances in the law reports. See, for example, the orders made in Kerr v. Fisher and Hamblen (1941) SASR 213, Hender v. Turale (1959) SASR 180 and, in other places, Smith v. Bray (1939) 56 TLR 200, Purnell v. O'Callaghan (1954) VLR 320 and Barisic v. Devonport (1978) 2 NSWLR 111. Such an order is included in the Common Form Judgments (1987) of this Court - see page 9. An order to the same practical effect was made in separate third party proceedings for contribution, by one tortfeasor against another, where the issue was substantially the same, in Anderson v. City of Enfield; Turco (Aust.) Pty Ltd (Third Party) (1983) 34 SASR 472. See also Hanson v. Matthew Bros. Contractors Ltd and Federal Commerce and Navigation Ltd (1991) 55 SASR
183. The two defendants in the present case were liable to the plaintiff in quite different capacities but it has not been suggested that the nature of the plaintiff's case against one or other defendant or the evidence required to support it should lead to any adjustment in the usual order. The first defendant's case for a differential order with respect to the plaintiff's costs, so far as the two defendants are concerned inter se, is certainly not weakened by the circumstance that, given the amount of the workers compensation payments already made by the first defendant, it is unlikely that the plaintiff will need to have any recourse to him to satisfy his judgement in this action. 16. For these reasons there will be an order in the usual form giving each defendant, with respect to his joint and several liability to pay the plaintiff's costs, a right of recovery against the other defendant proportionate to the latter's share of the blame for the plaintiff's injuries. 17. Finally, the first defendant seeks an order that the second defendant pay him 85 per cent of his own costs of the action. Presumably, if the Court were to make such an order, there should be a similar order in favour of the second defendant for 15 per cent of his costs against the first defendant. The first defendant's claim is not confined to any additional costs that he may have incurred with respect to the contribution issue between the two defendants that was tried and determined with the main action. No doubt most, if not all, of the first defendant's costs were made necessary by his defence to the plaintiff's damages claim against him. In Hanson v. Matthew Bros I discussed the question whether a defendant who is successfully sued for damages and subsequently brings third party proceedings for contribution under the Wrongs Act against another tortfeasor may include in his claim his costs incurred in defending the plaintiff's action against him. I held, though with some hesitation, that he could not. However, where, as here, all the parties are before the Court at the same time the power to award costs conferred by the Supreme Court Rules is probably wide enough to allow the Court to make the order sought. Whether it should do so is another matter. The second defendant in this case cannot be made responsible for the first defendant's decision to defend the plaintiff's claim. Apparently the first defendant did not make any relevant offer, either to the plaintiff or to the second defendant. His application is not said to be based upon some feature of the trial that was concerned simply with his case for contribution under s.25 of the Wrongs Act in the event of the plaintiff obtaining a judgement against him. I do not think that there should be any order as to the costs of the two defendants.