Annette Bulmer v Prestige Property

[2007] NSWDC 263

CITATION:	Annette Bulmer v Prestige Property [2007] NSWDC 263
HEARING DATE(S):	17/04/07, 18/04/07, 19/04/07, 20/04/07, 24/10/07
JUDGMENT DATE:	30 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Therefore, I allow damages for domestic assistance in the past of eight hours a week at a rate of $20 per hour, and for the future, I will allow six hours a week at $25 per hour. To all of this must be added an amount for the Fox v Wood component. Finally, I add $8 per week for consultations with a general practitioner and $600 per annum for consultations with an orthopaedic surgeon. My calculation is that with all these sums assessed, the plaintiff is entitled to a verdict of $729,800; I would ask counsel to calculate the amounts referable to the items I have assessed, to make sure I am correct and I will enter judgment for the plaintiff. The fourth defendant must pay the costs of the plaintiff on the ordinary basis.; Therefore, I give notice to the solicitors for the fourth defendant that they should show cause why they should not personally pay the costs ordered to be paid by the fourth defendant and why they should not submit to an order that they make no recovery of those costs from their client.; I give them 14 days to file any affidavits on which they wish to rely. Such affidavits, if any, are to be served on the plaintiff’s solicitor and on the insurer of the defendant within that time. I place the matter in the list before me on Friday 14th December 2007 for further directions.
CATCHWORDS:	personal inury - causal link between injuries - damages - liability - negligence - witness tells deliberate lies in evidence - costs
LEGISLATION CITED:	ss. 198L , 345 Legal Profession Act 2004
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES:	Annatte Bulmer Prestige Property
FILE NUMBER(S):	1749/07
COUNSEL:	Mr M Gilbert for the Plaintiff Mr J Ryan for the Defendant
SOLICITORS:	Stacks Port Macquarie for the Plaintiff Holman Webb for the Defendant

- 20 -

JUDGMENT

Introduction.

1 The case concerns a woman working in a shopping centre who slipped on a floor in a public toilet, which was being cleaned at the time. There is no doubt that the defendant, which was responsible for cleaning the toilet, employed a cleaner who had available to her various signs warning of the cleaning process. However, she did not put them out and the plaintiff entered the toilet unaware of the cleaning process, slipped on a floor made slippery by it and injured herself.

What happened in the accident.

2 On the 21st of March 2001, the plaintiff Annette Bulmer, was an employee in a jewellery shop at the Port Central shopping centre in Port Macquarie, a coastal town in New South Wales. Her claim in this court is that she was injured on that day when she slipped on the wet surface of the ladies toilets in the shopping centre. For the purposes of these proceedings, the fourth defendant was the cleaner of the toilets pursuant to a contract with the second defendant, who was the occupier of the shopping centre premises.

3 There is a system for the cleaning of the toilets and the cleaners were provided with signs, which they could erect outside the toilets, warning that cleaning was going on and suggesting that those entering do so with caution.

4 The plaintiff's case is that no signs were erected and when she went into the toilets she was given no warning that the floors were being cleaned or that there was any danger. The claim is that the fourth defendant owed her a duty of care, the contents of which included a duty to warn her of the danger of entering the toilet area. It is said that the fourth defendant, in breach of its duty of care failed to warn the plaintiff of the presence of the danger, the plaintiff entered the toilets, slipped on the floor and was injured. She seeks damages in respect of those injuries.

The fourth defendant calls Karen Anderson.

5 The fourth defendant called a witness, Karen Anderson. This witness was the cleaner of the toilets and was an employee of the fourth defendant on the day of the accident. Her evidence-in-chief was to the effect that there was no accident in the toilets at all and although she knew the plaintiff, the plaintiff had not been in the toilets at the time she claimed. The witness also claimed that she had erected signs outside the door warning of the danger and warning of the fact that cleaning was taking place. In my opinion, this witness was a liar and her evidence is rejected by me. I set out below the reasons for coming to the conclusion that I have come to about her evidence. It is quite clear to me that she was in the toilet at the time that the plaintiff slipped on the wet surface of the toilet floor and injured herself. I am also satisfied that she did not erect any signs warning of the cleaning.

6 For reasons which I will set out below, I accept the plaintiff as a witness of truth. I accept that she fell heavily on the toilet floor and crashed into a wooden cubicle, injuring her back and her right knee. I also accept that Karen Anderson was cleaning one of the cubicles at the time; that she came out when she heard the noise of the plaintiff falling heavily on the floor and colliding with a cubicle. She inquired about the plaintiff and assisted her back to her place of employment.

7 For reasons which I set out below, I intend to find a verdict for the plaintiff and to order that her costs be paid. However, I intend to give the defendant’s solicitors the opportunity to be heard as to why I should not order them to pay the costs personally.

8 I also order that the Registrar of this court refer the papers, including the transcript, the exhibits and my judgment to the Director of Public Prosecutions, so that he can consider whether proceedings should be commenced against Karen Anderson for perjury and/or perversion of the course of justice.

A detailed review of the facts concerning liability.

9 The plaintiff is a 50-year-old woman, who was born on the 14th of November 1956. At the time of the hearing on the 17th of April this year, she was unemployed and was caring for her, 13-year-old daughter, with whom she lived. She is a very heavily built woman, who moves slowly, and displayed in the giving of evidence a rather anxious sort of personality. On the day of the accident she was an employee of a jewellery business, which had a shop in the Port Central shopping centre.

10 She decided to use the female toilets on the ground floor of the shopping centre and walked to the doorway of those toilets. I am satisfied there were no signs outside the doorway, or in its vicinity, warning of the carrying out of cleaning within the toilet area. For some little time before she had arrived, it is clear to me that Karen Anderson, an employee of the fourth defendant was inside the toilet area carrying out cleaning duties. She caused the floor to be wet by putting water, and possibly disinfectant on it. At the time the plaintiff entered the toilets, the floor was wet and slippery as a result of the work of Karen Anderson. The plaintiff said that she was not aware of this work being carried out and I accept her when she says this. Indeed, I accept her as a truthful and honest witness.

11 When she entered, she was walking briskly. In my opinion, because there was no warning of the presence of any cleaning, she was entitled to walk briskly through the doorway into the toilets. Karen Anderson, at the time the plaintiff entered, was in a cubicle to the left of the plaintiff and the plaintiff could not see her. Presumably she was doing cleaning work in that cubicle. The plaintiff commenced to move to the right, when her feet went from under her; she hit the floor heavily, slid along it and crashed into a toilet cubicle, making considerable noise.

12 The floor was tiled and wet. Mrs Bulmer felt cold. She said that Karen Anderson, whom she knew only as the cleaner, came out of an adjoining cubicle, commented on the noise and asked if she was all right. The plaintiff complained to Ms Anderson that the floor was wet, and Mr Anderson immediately activated a hand drier on a wall, as if that would somehow dry the floor.

13 The plaintiff said that her clothes were wet through to her underwear. I accept what she says. The evidence about the activation of the hand drier at first seemed quite curious, but I have come to the conclusion that the plaintiff was accurately recalling an event which was strange, but which happened.

14 Karen Anderson then helped her to go back to her jewellery shop. Subsequently, and probably on the next day, the plaintiff reported the accident to Mr Brian Grant, who was the operations manager at the shopping centre. What he wrote down as her version was:

"walked into toilet -at 2nd door slipped on wet and slippery floor and fell into cubicle with a crash. (No 2 cubicle) (ground floor toilets)."

Under the heading "our version of events:" Mr Grant wrote.

"Cleaner (Karen), confirmed this incident."

he also wrote the observation;

"Wet before dried by cleaner",

referring to the condition of the floor after the incident.

15 Attached to these papers was a document entitled "cleaner’s report." This document refers to an accident occurring on 21/3/01 and 1:45 p.m. and gives the name of the cleaner on duty at the time, as Karen Anderson. It shows her location at the time of the accident as being;

"cleaning cubicle no 3, ground floor ladies toilets and the approximate time, the cleaner was notified as being 1:45 p.m. in same location at time of incident.".

The document goes on to describe the conditions of the floor as;

"semi - dry. In toilets, cleaning at time of incident. Sign outside in passageway, due to earlier spillage."

16 When he gave evidence at the trial, Mr Grant confirmed that the plaintiff had told him what she claimed had happened to her and Karen Anderson had confirmed her version of events. His memory was that Ms Anderson did this orally on the same day. The cleaners report, to which I have referred was dated the 29th of March 2001 and he confirmed that it was made out on that day. He had written the information down, and Miss Anderson had signed it. He said he did not witness the incident, and his information as to what happened came from the plaintiff and Miss Anderson.

17 I have no doubt this is so and I believe what Mr Grant said. He impressed me as being an impartial and honest witness. I cannot think of any reason for failing to accept him.

What Karen Anderson said on oath.

18 Ms Anderson, who was interposed during the evidence of the plaintiff, gave evidence that there was no incident, that the plaintiff was not injured in the toilets, and that she did not help her back to her place of employment.

19 When confronted with the documents produced by Mr Grant she sought to evade their effect, by saying that she signed the cleaners report, but she did not read anything that was written. She could not suggest any reason that Mr Grant would claim she had said things which she did not say. She could not explain why the document recorded her as agreeing with the plaintiff's version of facts. She was also shown a statutory declaration, which was signed by her and witnessed by a justice of the peace.

20 In this statutory declaration, she gives a version of events that she was cleaning the ladies toilet when the plaintiff came in, and;

"she went for a short slip on the floor-she did not hear anything, there was no noise, as she did not bang against anything. I ask her if she was okay, she replied. I'm fine. She was wearing leather sole shoes at the time."

21 This version was not consistent with the version she gave Mr Grant in her cleaner’s report and was inconsistent with what she first told Mr Grant. But it was consistent with there having been an incident on the 21st of March 2001 in which the plaintiff fell in the toilets. It was utterly inconsistent with her evidence-in-chief that no incident of any kind happened on that day, involving the plaintiff.

22 In my opinion, Karen Anderson came to court and deliberately told lies. It is not often, in my experience, that a witness will come to court and deliberately lie, but I can think of no other way of describing what she did. What she said in her evidence in chief was so contradicted by what she told Mr Grant on the same day as the accident, the report which he signed on the 29th of March and the contents of a statutory declaration, that it can only be described as being false and deliberately so.

23 I give no weight at all to her evidence-in-chief.

24 But I am prepared to accept that what she told Mr Grant orally in support of the plaintiff's claim was true. In my opinion, when she signed the cleaner’s report and claimed that there were signs outside toilet, she was seeking to evade her responsibility for the accident. What she said in the statutory declaration, whilst confirming there was an accident was said with a view to minimising it. There was also put in evidence a version she gave to an investigator. This version was put by her substantially, in her evidence-in-chief and clearly was false.

25 In my opinion, the evidence of the plaintiff that there was no sign outside toilet warning of the cleaning should be accepted. I also accept that she slipped heavily on the floor, which was wet, and that her clothing through to her underwear became wet. I accept that she collided with the cubicle and that she suffered injuries to her body. The evidence enables me to accept beyond any doubt whatsoever that the floor was wet, because Karen Anderson had wet it during cleaning operations and I accept also that the floor was slippery. No warning was given to the plaintiff that the floor was wet or slippery and she fell and was injured as she claimed.

26 The defendant had a duty to the plaintiff to ensure that it took reasonable care in the carrying out of cleaning operations so that it did not injure her, a person who, as a shop employee in the shopping centre, was lawfully entitled to use the toilets. The defendant clearly had signs which it could place outside the toilets before such a cleaning operation was carried out. It failed in its duty of care to the plaintiff by not placing those signs outside the toilets before the cleaning operation was commenced.

The plaintiff establishes negligence.

27 In my opinion, the plaintiff has established negligence on the part of the defendant. The defendant claimed that the plaintiff was guilty of contributory negligence. I am unable to see that this was in any way established. The plaintiff was walking through a doorway at a normal pace and had no reason to walk at any different pace, because she was given no warning. She did nothing herself to contribute to the accident, and I dismiss the claim of contributory negligence.

Damages: General Considerations.

28 The plaintiff was injured in the accident. I will set out her injuries and the continuing disabilities from which she suffers, later in this judgment.

29 On the day following the accident, Mrs Bulmer was coming down the stairs from her flat when she slipped and fell, injuring her right knee. This caused her right knee to become quite sore and for a period, it aggravated the injury to the right knee which she had in the accident the subject of these proceedings, but this aggravation ceased after a period of some weeks. It is probable, in my opinion, that the accident for which she sues before me contributed in some way to this fall, because she was stiff and sore as a result of the accident which it occurred only the day before.

30 Her employer, unfortunately for her, had not taken out workers compensation insurance and she was told that if she did not work she would not be paid. At the time, she was a single parent supporting a child and needed income. She continued to work with that employer until the 19th of July 2001. She ceased work and has not returned to any form of employment since.

31 She had medical advice supporting her discontinuing employment and I accept that she ceased to work, because of continuing pain to her back. I also accept that she was entitled to follow the medical advice that she should stop work.

32 Since that time she has put on a very large amount of weight. When she walked in the courtroom, she did so with the aid of a walking stick, and it was obvious that she was walking in a ponderous and very slow fashion. I paid careful regard to her at all times, when she was in the courtroom and I came to the conclusion that she was an honest witness who did have great difficulty in walking.

33 There have been disputes in the medical evidence about her putting on weight. The medical practitioners, whose reports were tendered on behalf of the fourth defendant, were of the view that her current problems were caused by her excessive weight, that she should lose weight, and that she would then be capable of returning to work and to normal activities.

34 On the other hand, the medical practitioners, whose reports were tendered for the plaintiff were of the opinion that her weight was causally related to the accident. Dr Holmes, a psychiatrist, expressed this view in reports and gave evidence of this. I accept the evidence of Dr Holmes and I am of the opinion that the plaintiff's present weight has a causal connection with the accident.

35 She gave evidence that before the accident she engaged in a range of activities, including dancing and playing tennis. She had been married and following the dissolution of that marriage had lived with two different men, one of whom was the father of her youngest child.

36 Mr Ernest Magni, a solicitor, gave evidence to support the fact that before the accident she was an active and lively person. Mr Magni attended dances and social functions with her and spoke of her as an active and likeable person. I accept the evidence of Mr Magni, who was, in my opinion, an honest and careful witness.

Medical evidence.

37 The evidence of Dr Cumberland establishes to my satisfaction on the balance of probabilities that her right knee was severely damaged in the accident and the operation carried out by him was referable to the accident injury. She still has chondromalacia patella of her right knee and this is referable to the accident.

38 I accept the opinions of Dr Cumberland, Dr Murray Hyde Page and Dr Powell concerning the right knee and the damage to it being causally linked to the accident the subject of the present litigation. I consider that each of these doctors has thoroughly investigated the matters referred to them and their reports are convincing.

39 I accept the reports of Dr Pepper, Dr Powell and Dr Kuru that she suffered annular tears to the L4, L5, and damage to her coccyx in the accident. Dr Colin Davis also supports the relationship of her annular tears and the accident, although he considers that the symptoms from them should have resolved by now. This is an issue to which I will return.

40 I have considered also the reports of Dr Powell, Dr Caldwell and Dr John Davis about the need for future treatment. I accept what Dr Powell and Dr Caldwell said rather than what Dr Davis has said about this matter because I do not think she will ever undergo any further treatment and I cannot see that it is justified.

41 I have considered the reports of Dr Anthony Smith who seems to be of the opinion that there may be a relationship between the accident and her injuries, but that she would have recovered within 3 months of the accident. I do not accept the opinions of Dr Smith because the preponderance of opinion is to the contrary and I just do not accept that she did have this recovery. Indeed, on her own evidence, which I accept, her pain and discomfort was so great at the end of 3 months that she simply could not continue to work.

42 I have certainly considered carefully the report of Dr Colin Davis in which he expresses the opinion that her symptoms should by now have resolved. Essentially, he considers that her obesity is what prevents her from being fully functional and without the obesity, the other symptoms would have settled.

The question then is – why is she so obese?

43 An examination of the reports shows her gaining weight significantly after the accident to the present where she weighs 135 kilograms and is morbidly obese. Dr Holmes examined her, reported on her and gave evidence. He is a psychiatrist and was of the opinion that she suffers from a pain syndrome, and an adjustment disorder with depression and anxiety and that her obesity is causally related to the accident. I considered his reports and his evidence and I accept it.

Conclusions on the medical evidence.

44 The medical reports concerning her and her own evidence before me convince me that as a result of the accident she changed physically and has become a very fat, and quite immobile woman. This is causally related to the accident. She had been to physiotherapy and has seen a range of doctors. Her pain is managed by analgesia, and it is clear to me that she is reluctant to have any further operative treatment. That treatment would be available only if she lost a lot of weight.

45 In my opinion, she is an honest but anxious person. At times, that anxiety made it difficult to follow her evidence, but I accept her as a witness of truth. By her own admission, she was overweight before the accident, but clearly she is now grossly overweight and incapable, in my opinion, of doing any work.

46 She suffers continuing pain in her back and in her coccyx and this is likely to last for the rest of her life. It may be that following the cessation of litigation things will change for her, but presently, I can see no reason for supposing that they will. I think it unlikely that she will attend physiotherapy again, or that she will take part in the ADAPT programme. Both of these are available to her, as is the possibility of counselling and future knee surgery to her right knee. However, in my opinion, the evidence does not allow me to accept that she will avail herself of any of these options. I am also unpersuaded that the ADAPT programme would be of any benefit to her. I accept the evidence of Dr Colin Davis that there is no need for any further surgical or pain relief intervention.

47 In my opinion, she will continue in the future, as now reliant on pharmaceutical preparations and fairly regular visits to general practitioners. An allowance should be made for the costs of future pharmaceutical expenses as claimed by her, for a visit to a general practitioner each week and a four monthly review by an orthopaedic surgeon who can provide appropriate treatment advice to the general practitioner.

Assessment of the heads of damage.

48 The negligence of the defendant has reduced the plaintiff to the person that she is now; a very obese, stressed and anxious woman, who is not capable of doing anything in the way of work beyond some type of light, part-time, sedentary work. She suffers continuing back pain and knee pain that will not improve in the future.

49 Her counsel made submissions that I should allow a past economic loss claim of $415 per week, based on what she was earning at the time she ceased to be employed. He also submitted that I should regard her as able to earn something in the future and argued that I should allow a continuing loss of $300 per week. This would mean if I accepted this submission, that I would regard her as able to earn $115 per week.

50 Counsel for the defendant submitted that she suffered no past economic loss at all and is entitled to nothing for the future.

51 I have formed the view that she is very seriously disabled and that it is unlikely that she will ever work again. Indeed, I consider her claim that she needs continuing care is reasonable. Notwithstanding this, she has some continuing earning capacity of a modest type and I am of the opinion that the claim of $300 for the future is justified and the damages which I award reflects this finding.

52 In the past she has not worked at all after she ceased employment. She ceased the employment on medical advice. I consider that her claim for $415 per week for this period is justified and the damages which I award reflects this finding. However, from this amount should be deducted the carers payments given to her for the care of her mother.

53 She is also entitled to a loss of superannuation based on a past loss of $550 per week and an appropriate loss for the future, having regard to my findings as to the future economic loss.

54 She made a claim for past out-of-pocket expenses. I have heard submissions from counsel for the defendant about this matter. The amount actually paid for these expenses is $79,579. All these expenses have in fact been paid by the workers compensation insurer and were for treatment for her approved by that insurer. In my opinion, she is entitled to be paid these expenses.

55 I must then allow non- economic loss expressed as a percentage of the most extreme case. In my opinion, the accident has reduced a previously mobile active woman into being a very inactive, grossly obese woman. She is in reality, little better than a cripple, and is entitled to damages accordingly. I do not accept that she would have recovered from the effects of the accident within three months, nor do I accept that the present problems would have resulted without the accident. I prefer to accept the medical opinions of the doctors to whom I have above referred, rather than the opinions expressed by doctors who have seen her merely for the purpose of expressing a report on behalf of the defendant. In my opinion, she is entitled to be assessed at 35% of the most extreme case.

56 My mind has pondered carefully her claim for domestic assistance, because it is clear that she was able to offer some assistance to her mother for a period. However, having regard to her evidence, I would accept that her role with her mother was largely one of comfort, and that her former partner, was the person who did the active work. I also accept that her daughter does many hours of work to assist her mother in each week and that it is likely in the future that she will need continuing assistance arising from the fact that she is virtually a crippled woman.

57 Therefore, I allow damages for domestic assistance in the past of eight hours a week at a rate of $20 per hour, and for the future, I will allow six hours a week at $25 per hour. To all of this must be added an amount for the Fox v Wood component. Finally, I add $8 per week for consultations with a general practitioner and $600 per annum for consultations with an orthopaedic surgeon. My calculation is that with all these sums assessed, the plaintiff is entitled to a verdict of $729,800

58 I would ask counsel to calculate the amounts referable to the items I have assessed, to make sure I am correct and I will enter judgment for the plaintiff. The fourth defendant must pay the costs of the plaintiff on the ordinary basis.

Conduct of the lawyers for the defendant

59 These facts in this case are not remarkable. What was remarkable was that the employed cleaner would come to this Court and give evidence which was deliberately false. It is also a matter for concern that the legal advisers of the defendant should choose to call her as a witness, since they had in their possession written material which clearly showed that she was a person on whose evidence they could not rely.

60 A defendant is entitled to defend proceedings if there is a proper basis for doing so.

61 In this case a certificate in the following form attached to the defence of the fourth defendant and was signed by Wendy Anne Mc Dowell, who was described as “solicitor, authorised person”:

“ I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguably view of the law that the defence in these proceedings has reasonable prospects of success”

62 The certificate was made under section 198 L of the Legal Profession Act, 1987.

63 That section is in the following words:

“198L Restrictions on commencing proceedings without reasonable prospects of success
The provision of legal services without reasonable prospects of success does not constitute an offence but is capable of being professional misconduct or unsatisfactory professional conduct.
A solicitor or barrister cannot file court documentation on a claim or defence of a claim for damages unless the solicitor or barrister certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
Court documentation on a claim or defence of a claim for damages is not to be accepted for lodgment unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.
In this section:
“court documentation” means:
(a)
a statement of claim, summons, cross-claim, defence or further pleading, or
(b)
an amended statement of claim, summons, cross-claim, defence or further pleading, or
(c)
a document amending a statement of claim, summons, cross-claim, defence or further pleading, or
(d)
any other document of a kind prescribed by the regulations.
“cross-claim” includes counter-claim and cross-action.”

64 The Legal Profession Act, 2002, sec 345, makes provisions prohibiting a lawyer from acting in a case which has no reasonable prospects of success. It is in the following terms:

Law practice not to act unless there are reasonable prospects of success
A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.
This Division applies despite any obligation that a law practice or a legal practitioner associate of the practice may have to act in accordance with the instructions or wishes of the client.
A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.
Provision of legal services in contravention of this section constitutes for the purposes of this Division the provision of legal services without reasonable prospects of success.

65 The other relevant provisions of the Act, are as follows:

Restrictions on commencing proceedings without reasonable prospects of success
The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.
A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.
In this section:
“court documentation” means:
(a)
an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or
(b)
an amended originating process, defence or further pleading, or
(c)
a document amending an originating process, defence or further pleading, or
(d)
any other document of a kind prescribed by the regulations.
“cross-claim” includes counter-claim and cross-action.
Costs order against law practice acting without reasonable prospects of success
If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the practice or of a legal practitioner associate of the practice responsible for providing the services:
(a)
an order directing the practice or associate to repay to the party to whom the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party,
(b)
an order directing the practice or associate to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified.
The Supreme Court may on the application of any party to proceedings on a claim for damages make any order that the court in which proceedings on the claim are taken could make under this section.
An application for an order under this section cannot be made after a final determination has been made under this Part by a costs assessor of the costs payable as a result of an order made by the court in which the proceedings on the claim concerned were taken.
A law practice or legal practitioner associate of the practice is not entitled to demand, recover or accept from a client any part of the amount for which the practice or associate is directed to indemnify a party pursuant to an order under this section.
Onus of showing facts provided reasonable prospects of success
If the court (the “trial court” ) hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
If the Supreme Court (when the Supreme Court is not the trial court) is satisfied, either as a result of a finding of the trial court or otherwise on the basis of the judgment of the trial court, that the facts established by the evidence before the trial court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
A presumption arising under this section is rebuttable and a person seeking to rebut it bears the onus of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success.
A law practice or legal practitioner associate of the practice may, for the purpose of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the law practice or a legal practitioner associate of the practice and a client, but only if:
(a)
the client is the client to whom the legal services were provided or consents to its disclosure, or
(b)
the court is satisfied that it is necessary for the law practice or associate to do so in order to rebut a presumption arising under this section.”

66 At some point in their conduct of the proceedings, the solicitors for the defendant should have become aware of the making by the cleaner, Karen Anderson, of contradictory and obviously false claims about this accident. It is reasonable to suppose that the solicitors caused the accident to be investigated on behalf of their client and that investigation ought to have thrown up the facts about Karen Anderson.

67 As soon as those facts became known, in my opinion, the solicitors were under a legal obligation to inform their client and to abandon the defence, based as it was upon obviously false evidence.

68 However, the defendant’s counsel called Karen Anderson at the trial, without in any way making known to the Court what the true position was.

69 These views of mine have been reached without hearing any explanation from the solicitors and I intend to ask for that explanation, since if it is not satisfactory, I have a discretion to order the solicitors to pay the costs of the plaintiff and to refrain from collecting those costs from their client.

70 Therefore, I give notice to the solicitors for the fourth defendant that they should show cause why they should not personally pay the costs ordered to be paid by the fourth defendant and why they should not submit to an order that they make no recovery of those costs from their client.

71 I give them 14 days to file any affidavits on which they wish to rely. Such affidavits, if any, are to be served on the plaintiff’s solicitor and on the insurer of the defendant within that time. I place the matter in the list before me on Friday 14th December 2007 for further directions.