Azar v Kathirgamalingan

The appeal concerned a plaintiff who suffered a psychological condition following a road accident. The defendant argued that the trial judge erred in finding that the plaintiff's condition pre-existed the accident and that its exacerbation was not caused by the accident. The Court of Appeal, comprising McColl, Basten and Campbell JJA, was asked to determine whether the trial judge's findings on causation were mistaken.

The primary legal issues before the Court of Appeal were whether the trial judge had made an error in finding that the plaintiff's psychological condition was not caused or exacerbated by the road accident, and consequently, whether the plaintiff had demonstrated any question of principle in relation to causation. A further significant issue related to costs, specifically whether the Uniform Civil Procedure Rules (UCPR) concerning offers of compromise and consequential costs orders applied to offers made to a legally incapable person represented by a tutor, and whether a settlement subject to court approval created a binding agreement. The court also considered whether a tutor bringing proceedings on behalf of a legally incapable person was placed in unacceptable conflict by the risk of personal liability for costs if legislation allowed for indemnity costs orders.

The Court of Appeal found no error in the trial judge's findings regarding causation. Regarding costs, the court held that offers of compromise made to a legally incapable person require court approval under s 76 of the Civil Procedure Act 2005. While such an agreement does not create an immediate compromise, it forms a binding contract conditional on court approval, and the UCPR applies with this proviso. The court also determined that tutors are always at risk of personal liability for costs, and the risk of indemnity costs, while changing the scope, did not alter the character of this risk. The court found that an offer made within two months of the hearing date, open for 21 days, was reasonable in the circumstances, with the onus on the rejecting party to demonstrate otherwise.

The appeal was dismissed, and the court ordered that the appellant pay the respondent's costs.