Barman v Victorian WorkCover Authority (Ruling as to Costs)
[2020] VCC 380
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-04165
| DOLA BARMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2020 | |
DATE OF RULING: | 8 April 2020 | |
CASE MAY BE CITED AS: | Barman v Victorian WorkCover Authority (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 380 | |
RULING AS TO COSTS
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Subject: COSTS
Catchwords: Application by plaintiff for certification of counsels’ fees
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013; WorkCover (Litigated Claims) Legal Costs Order 2016; County Court Civil Procedure Rules 2018
Cases Cited:Traumanis v State of Victoria, (Unreported, CCV, 26 May 2017); Gelland v Victorian WorkCover Authority [2017] VCC 1919; Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs) [2018] VCC 2314; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Calderbank v Calderbank [1975] 3 All ER 333; Herald and Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292
Ruling: Certify for counsels’ fees, being $6,000 for senior counsel and two hours of special conference at $600 per hour, and half those amounts for junior counsel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr M Clarke | Zaparas Lawyers |
| For the Defendant | Ms C Spitaleri | Wisewould Mahony |
HIS HONOUR:
1 Dola Barman sought leave to commence a proceeding for damages relying on paragraphs (a) and (c) of the definition of “serious injury” in either the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013. She also relied on the consequences of pain and suffering and loss of earning capacity. After a delayed start, I started to hear from Ms Barman. Her cross-examination was not finished by the time of the luncheon adjournment. On resuming, the parties announced they had settled all but one issue. The settlement involved the defendant conceding Ms Barman’s claim of a serious injury insofar as it related to pain and suffering consequence and Ms Barman desisting with her claim regarding loss of earning capacity consequence. The remaining issue was counsels’ fees. Given Ms Barman succeeded up to a point, this issue arose out of an offer made by the defendant last year to resolve this application.
2 The offer was contained in a notice, dated 16 October 2019, which reads:
“The Victorian WorkCover Authority gives notice it is satisfied that the injury Dola Barman alleged to have sustained in the circumstances referred to in paragraph 5 of the proposed Statement of Claim submitted with the application herein made under sub-section 325(2) satisfies the requirements of section 325(2)(b)(i) but not the requirements of section 325(2)(b)(ii).”
3 This notice was given under the WorkCover (Litigated Claims) Legal Costs Order 2016 (Order). The Order is divided into Parts. Part A specifically regulates the professional costs of solicitors. Part B deals with disbursements. It treats the cost of counsels’ fees as a disbursement, not a professional cost. But it is a special kind of disbursement for the calculation of those fees will be “in accordance with the scale of costs or any other sum which is agreed or ordered by the court”. However, the respondent does not take issue with the sums claimed for counsel, it disputes their allowance through certification.
4 Where a dispute arises over the allowance or reasonable cost of a disbursement, Part C requires the application of the County Court Rules of Civil Procedure to the dispute resolution process[1]. An obvious application of those rules would be the taxation of the applicant’s costs; however, quite properly, I am being asked to certify or, in effect, tax them. In effect, paragraph A2(ii) of the Order allows the offer to remain open for 28 days from the date of its receipt. The offer was not accepted within that period.
[1]County Court Civil Procedure Rules 2018
5 Both parties agreed I have a discretion to certify or not. In one sense, the applicant succeeded in her application, for the resolution enabled her to progress to the next stage of issuing a proceeding for damages. Generally, costs follow the event. However, the respondent resists the inclusion of counsels’ fees, relying on the notice.
6 In civil litigation, the purpose of offers of compromise or settlement is to bring litigation to an end sooner than would be the case if a trial occurred. They are meant to save costs, for the litigants and for the public. The question is what is the test and what are the factors I should take into account in exercising the discretion. I was referred to three rulings of the judges of this Court.[2] In each, the test emerges as the unreasonable rejection or non-acceptance of an offer. This is the test stated by the Court in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)[3] when dealing with Calderbank[4] offers:
“The critical question is whether the rejection of the offer was unreasonable in the circumstances.”
[2]Traumanis v State of Victoria, CCV (Unreported) 26 May 2017; Gelland v Victorian WorkCover Authority [2017] VCC 1919, and Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs) [2018] VCC 2314
[3](2005) 13 VR 435 at paragraph [23]
[4]Calderbank v Calderbank [1975] 3 All ER 333
7 The Court continued:[5]
“The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations.”
[5]At paragraph [24]
8 In the same paragraph, the Court set out a non-exhaustive list of factors to be considered. In this case, each of the factors is relevant, except (f), and are easily dealt with except for (d) - “The offeree’s prospects of success as at the date of the offer”. An offer nearly six months before a hearing and about six months after the commencement of the application raises no issue. The offer was open for 28 days from its receipt. Notwithstanding the period is specified in the Order, it is a reasonable period in any event. The offer is genuine and not, as is occasionally seen in other civil litigation, derisory. The offer is clearly expressed. Assuming the applicant’s solicitors received the notice on 16 October 2019, what were the applicant’s prospects of success, assessed within the period of 28 days afterwards on the basis of the material possessed by her? That involves an examination of what she said in her affidavits and what was said about her in various reports obtained by both sides and available during that period.[6]
[6]I am assuming copies of the defendant’s report were given to the plaintiff’s solicitors on or very shortly after the date on them.
9 In her first affidavit, Ms Barman said she had been unable to return to any work at all since 2017. She injured her back in an incident on 20 February 2017. She was off work until April 2017. She returned but lasted only four days.[7] During 2018, she completed two short courses. As at October 2019, she had not returned to the workforce although she had applied for a number of jobs on a part-time basis but had been unsuccessful.
[7]Affidavit sworn 11 April 2019 at paragraphs [16], [17] and [29]
10 At the time of her injury, Ms Barman worked in four part-time positions. Combining the hours worked, they did not amount to a great deal on a weekly basis. The mainstay was 12.5 hours per week at the Arrabri Kindergarten. However, she believed she was capable of working full hours before her back injury.
11 Mr Bruce Love is an orthopaedic surgeon. On 4 July 2018, he felt she was unfit for any duties at that time.
12 Professor Richard Bittar is a neurosurgeon. He treated Ms Barman since, at least, 17 May 2017. In his report, dated 29 July 2018, and speaking of his last review of her on 25 September 2017, Professor Bittar said she was unfit for any employment.
13 Dr Meena Mittal is a pain physician and anaesthetist. In her report, dated 12 June 2018, Dr Mittal considered Ms Barman unfit for any employment with a poor prognosis.
14 Dr Joseph Slesenger is an occupational physician. In his report, dated 6 July 2018, he said she could not return to her pre-injury duties. She could perform alternate duties subject to severe limitations including four hours a day, three days a week.
15 Dr Kilner Brasier is a physician specialising in occupational medicine. He had treated Ms Barman since 6 September 2017. In his report to Ms Barman’s solicitors, dated 7 August 2018, he said she could not return to her pre-injury duties. In relation to her desire to explore work as a teachers’ aide or integration aide, he felt she was fit for those jobs but for no more than four hours per day and three non-consecutive days per week.
16 Dr Michael Baynes specialises in occupational medicine. In his report, dated 18 December 2018, Dr Baynes considered her unable to return to her pre-injury duties and hours. However, he considered her fit for alternate duties, being of a sedentary nature, with significant lifting restrictions, with very limited hours (9) initially and subsequent progression in hours.
17 Dr Richard Sullivan is a pain specialist and anaesthetist. In his report, dated 10 May 2019, Dr Sullivan said she could not perform her pre-injury duties at that stage, adding “it is possible that she could rehabilitate to a point where she could engage in very light duties such as clerical work on a part-time basis. This is a hypothetical outcome in the event that she responds favourably to interventional treatment and then is able to successfully complete an out-patient based pain management program and improve her functional tolerances and her self management skill base”.
18 Mr Rodney Simm is an orthopaedic surgeon. In a report dated 27 June 2019, Mr Simm felt her physical injury had been complicated by the development of a chronic spinal pain syndrome, which has led to her current levels of pain and limited function of the lumbar spine. To him, the physical injury was relatively minor. Absent the syndrome and associated emotional disturbance, he would expect marked recovery in six to twelve weeks of the injury. Nonetheless, he considered she was capable of full-time non-physical work with some flexibility with sitting and standing.
19 Dr Mary Wyatt is an occupational physician. In her report dated 14 July 2019, Dr Wyatt thought Ms Barman’s was not out of the ordinary but her “condition had perhaps been medicalised with her absorbing advice that seems overly restrictive in terms of day to day activities”. Medically, she was fit for a range of administrative duties with normal hours but due to her loss of confidence and time off work, working one or two days per week would be sensible.
20 The general practitioner, Dr Sasidharan Somasunderam, certified her fitness for “casual work” from 25 October 2019. The certificate itself does not explain what the doctor meant by that expression by way of hours, days and duties. However, the entry in the clinical records for that day is: “got a[n] offer to work at a school, wants clearance certificate”. A little later in the entry, the doctor records: “Here for clearance certificate, only to try casual.”
Discussion
21 Although Ms Barman spoke of being capable of working full hours before her injury in her second affidavit, no doubt that was her belief at the time of swearing her first affidavit. She relies on the expressions “was capable of earning” or “would have been capable of earning” in s 325(2)(f)(ii). This raises the analysis of the Court in The Herald and Weekly Times Ltd and Victorian WorkCover Authority v Jessop,[8] of the meaning of s134AB(38)(f)(ii) of the Accident Compensation Act 1985 generally and the expression “earning capacity” within it. Before her injury, Ms Jessop had the capacity to work 37.5 hours per week and a willingness to work those hours. After her injury, at most, she could work 13.5 hours per week: “The injury deprived [her] of the capacity to exercise control over whether she sought to earn income as a full-time employee as distinct from a part-time employee”.[9] Before her injury, Ms Barman was saying she was capable of working full hours and, presumably willing to do so, but was prevented for some non-medical reason.
[8][2014] VSCA 292
[9]at paragraph [60]
22 The available medical reports are clear she could not return to her pre-injury duties or hours. On 25 September 2017, Professor Bittar considered her unfit for any duties. On 12 June 2018, Dr Mittal saw her as unfit for any duties. On 4 July 2018, Dr Love saw her as unfit for any duties at that time. On 6 July 2018, Dr Slesenger saw her fit for alternate duties subject to severe restrictions and limited hours. On 7 August 2018, Dr Brasier saw fitness to the jobs of teacher and integration aides but on very limited hours. On 18 December 2018, Dr Baynes saw her fit for sedentary duties with lifting restrictions and limited initial hours. He raised the possibility of more hours in time. He did not say how many or when. On 10 May 2019, Dr Sullivan raised the possibility of alternate duties but hedged it with contingencies. On 27 June 2019, Mr Simm saw her fit for full-time non-physical work, not being her pre-injury duties. Finally, on 14 July 2019, Dr Wyatt saw the capacity for full-time hours in a range of administrative jobs but conceding the impact of the unfortunate advice. The general practitioner’s certificate adds little because of its vagueness. “Casual” could mean limited duties or limited hours or both. It is unlikely to refer to the nature of the contractual arrangement.
23 The medical opinion, excluding psychiatric opinion, varied between an incapacity for all employment, a capacity for severely limited duties and hours and suitable employment on a full-time basis with some qualification. Accepting as one must in this context, Ms Barman believed, and the Court accepted, she could have worked normal hours before the injury and ignoring her oral evidence and the reports after 16 October 2019, then her prospects of success on the loss of earning capacity consequence was not clear cut. Until the advent of the opinions of Mr Simm and Dr Wyatt, her prospects were very good. However, their opinions are anomalous in the context of the other opinions, especially those of the treating practitioners. They stood a chance of rejection. Nevertheless, the impact of those later opinions reduces her prospects of success to the level of good. In my opinion, her rejection or, at least, non-acceptance of the offer was not unreasonable in the circumstances within the period of 28 days after 16 October 2019. Accordingly, I will certify for counsels’ fees, being $6,000 for senior counsel and two hours of special conference at $600 per hour and half those amounts for junior counsel.
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