BOGUSLAWA Kula by her Next Friend Marek Kula v Stuckey - [2000] WADC 226

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOGUSLAWA KULA by her Next Friend MAREK KULA -v- STUCKEY & ORS [2000] WADC 226

CORAM: FENBURY DCJ

HEARD: 28 JULY, 4 & 10 AUGUST 2000

DELIVERED : 8 SEPTEMBER 2000

FILE NO/S: CIV 1736 of 1992

BETWEEN: BOGUSLAWA KULA by her Next Friend MAREK KULA
Plaintiff
AND
DR BRONWYN STUCKEY
First Defendant
DR TERRANCE THOMAS
Second Defendant
THE BOARD OF MANAGEMENT OF KING EDWARD MEMORIAL HOSPITAL FOR WOMEN
Third Defendant

Catchwords:

Costs - Sanderson order - Apportionment - Indemnity costs - Turns on own facts

Legislation:

Nil

Result:

Costs to the plaintiff; Sanderson order; no apportionment; no indemnity costs

Representation:

Counsel:

Plaintiff:     Mr M Herron
First Defendant             :     Mr D Wallace
Second Defendant         :     Mr D Wallace
Third Defendant           :     Mr A J Sefton

Solicitors:

Plaintiff:     Gibson & Gibson
First Defendant             :     Edwards Wallace
Second Defendant         :     Edwards Wallace
Third Defendant           :     State Crown Solicitor

Case(s) referred to in judgment(s):

Sanderson v Blyth Theatre Co [1903] 2 KB 533
Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu & Anor (No 2) (1997) 18 WAR 190
West Gold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998

Case(s) also cited:

Benz v Kato & Ors; unreported; DCt of WA; Library No D980234; 12 March 1998
Collins v Westralian Sands Ltd (1993) 9 WAR 56
D'Arcy v Holloway (1996) 16 SR (WA) 115
Esther Investments Pty Ltd v Markalinga (1992) 8 WAR 400
Geraldton Building Company Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242
Whyte v Seeikatty (1994) 10 SR (WA) 128
Zahalka v Miles & Dally (1991) 7 SR (WA) 230

FENBURY DCJ: This is an application for costs following judgment in an action where the plaintiff sued three separate defendants alleging negligence. After a trial that lasted for fourteen full days I reserved my decision on 22 March 2000 and delivered it on 28 July 2000.
The plaintiff succeeded against the second defendant only and in respect of one of three issues. The issue of costs was briefly touched upon on 28 July and then adjourned to 4 August 2000 where I heard brief submissions for an hour. The hearing was then again adjourned to 10 August when fuller submissions were made and the decision was reserved.
A lengthy Minute of Proposed Orders was proferred by the plaintiff and it is appropriate, having regard to the way the hearing was conducted, to set out that Minute in full at the commencement of these reasons. It is stated:
"1.Judgment be entered against the Second Defendant in the sum of $977,103.70 with liberty to apply in relation to the management fees for investment of the judgment sum.
2.Within 14 days the judgment sum be paid to the Public Trustee in and for the State of Western Australia.
3.The Public Trustee do invest the said sum on behalf of the Plaintiff, such investment not to be limited to the Common Fund.
4.The action against the First and Third Defendants be dismissed.
5.The Second Defendant do pay the Plaintiff's costs of the action including reserved costs on an indemnity basis up to and including 24 March 2000 to be taxed such costs to include all costs incurred by reason of there being three defendants and by reference to the sum of $977,103.70 plus $75,353 subject to the quantification of management fees for investment of the judgment sum.
6.The Plaintiff be granted a certificate for second counsel at trial.
7.The Plaintiff be entitled to tax the whole of her costs of Counsel fees up to and including 28 July 2000 without regard to the limits imposed by Order 66 rule 11 of the Rules of the Supreme Court 1971.
8.The Plaintiff be entitled to tax the whole of her costs of getting up without regard to the limits imposed by Order 66 rule 11 of the Rules of the Supreme Court 1971.
9.The Plaintiff be entitled to tax the whole of her costs of Solicitor attending trial pursuant to Item 14(e) of the Supreme Court (Contentious Business) Determination 1999 ("1999 Determination") without regard to the limits in Item 14(e) of the 1999 Determination.
10.As between the Plaintiff and the Second Defendant, the Plaintiff's costs of the action to 28 July 2000 be taxed without regard to the limits imposed by Order 66 rule 11 of the Rules of the Supreme Court 1971 with respect to:
(a)Statement of Claim;
(b)Amended Statement of Claim;
(c)Trial;
(d)Attendances on reserved Judgment including preparation;
(e)Drawing Bill of Costs;
(f)Taxation of Costs;
(g)The costs of and incidental to one counsel for the Plaintiff attending to proof expert witness, Professor Jansen, in Sydney including reasonable allowances for the time spent travelling and related expenses;
(h)The costs of and incidental to all conferences including telephone conferences between both counsel and solicitors with expert witnesses;
(i)The costs of and incidental to the preparation of Schedules by counsel;
(j)The costs of and incidental to the preparation of submissions as to liability and quantum by counsel;
(k)The costs of and incidental to the organisation of video conference for the purposes of taking the evidence of Professor Jansen in Sydney;
(l)The costs of and incidental to researching and reading medical articles and all relevant material including but not limited to brochures, pamphlets, home pages and internet resources including reasonable allowances for time spent travelling to the medical library of the University of Western Australia.
(m)The costs of and incidental to reading patient records of King Edward Memorial Hospital, Sir Charles Gairdner Hospital and Royal Perth Rehabilitation Hospital;
(n)The costs of and incidental to the Plaintiff's General Practitioner, Dr Peter Richardson, attending to view Plaintiff's hospital records at King Edward Memorial Hospital on 20 February 1992.
11.The Second Defendant do pay the Plaintiff's cost of obtaining the transcript of the proceedings pursuant to Order 69 rule 3 of the Rules of the Supreme Court 1971.
12.The Second Defendant do pay the Plaintiff's cost of examination of expert witnesses including Professor Robert Jansen, Dr Peter Cameron, Dr Raven, Dr Peter Richardson and Dr Carroll pursuant to Order 66 rule 18 of the Rules of the Supreme Court 1971.
13.The Plaintiff be granted a certificate for administration of interrogatories pursuant to Order 66 rule 47 of the Rules of the Supreme Court.
14.The Second Defendant do pay the First and Third Defendant's costs of the action including reserved costs to be taxed;
15.As between the solicitors for the Plaintiff and the Plaintiff the limits imposed by Order 66, rule 11, the Fourth Schedule and the 1996 and 1999 Determinations not apply in relation to the costs payable by the Plaintiff to the solicitors for the Plaintiff.
16.There be liberty to apply generally."
On 28 July, when the decision in the trial was delivered, I made orders in terms of those set out in par 1‑4 inclusive of the Minute.
I was advised at the commencement of the hearing on 4 August by counsel for the plaintiff that the second defendant had consented to orders in terms of par 6, par 11, par 12, par 13 and par 15 of the Minute. As counsel observed, that left the issues arising out of the proposed orders set out in par 5, par 7, par 8, par 9, par 10 and par 14 to be decided.
Counsel for the third defendant indicated lack of opposition to any of the orders sought save as to the making of order 14. As to that, the third defendant's proposed orders were:
"1.The plaintiff do pay the third defendant's costs of the action to be taxed, including the cost of the instructing solicitor or clerk attending the trial, by reference to the sum of $977,103.70 subject to the quantification of management fees for investment of the judgment sum.
2.There be a certificate for transcript of the trial."
Counsel for the plaintiff suggested that the issues raised in par 14 be resolved first. It was submitted that the appropriate order should be in the nature of a Sanderson order rather than a Bullock order.
In order 14 of the plaintiff's Minute an order is sought that the second defendant "do pay the first and third defendant's costs of the action including reserved costs to be taxed". This order is in the nature of a Sanderson order taking its name from Sanderson v Blyth Theatre Co [1903] 2 KB 533. A Sanderson order can be made when it can be concluded that it was reasonable for the plaintiff to join the successful defendant, (here the first and third defendants). Was the joinder of the successful defendants reasonable and proper so as to ensure the recovery of the relief sought?
In this case it is clear that the nature of the duty owed to the plaintiff by all the defendants was the same and arose out of the same factual situation in a general sense.
I have no doubt that it was reasonable for the plaintiff to join the first defendant given her role in the administration of the infertility programme to the plaintiff and the contact she had with the plaintiff up until a few days before the cerebrovascular accident. Indeed, the second defendant did not seem to suggest that it was inappropriate for an order to be made that the first defendant's costs be paid by the second defendant. Furthermore the first and second defendants were represented by the same solicitors and counsel.
The thrust of counsel's submissions was more to the effect that there was sound reason, given the plaintiff's lack of success on some issues, for an order that less than the full costs be paid. Thus the second defendant did not appear seriously to dispute that it was appropriate a Sanderson type of order be made in respect of the first defendant. Concerning the third defendant, the second defendant asserted that, given the evidence revealed to the plaintiff following discovery and inspection of documents, the plaintiff should have discontinued against the third defendant prior to trial. It was said that the hospital records showed the plaintiff was not a public patient and therefore the hospital could not be responsible. Thus it was argued that although the plaintiff might be entitled to a Sanderson order in respect of the third defendant up until the conclusion of the discovery process, she was not entitled to an order thereafter.
The plaintiff was admitted to the third defendant hospital on the morning of 24 March 1990 and she had her stroke on the evening of the following day. I have already made critical comments concerning the role the third defendant played in the proceedings and the failure of nursing staff to carry out the second defendant's instructions to take blood tests daily.
At trial the second defendant, as has been commented upon by counsel, did not concede that the plaintiff was his private patient during the critical period. He asserted that she was the public patient of the third defendant and, by implication, that it was the third defendant who, if anybody, breached its duty of care towards her. The gist of the submission advanced on behalf of the second defendant was that it was patently obvious on the discovered documents that the plaintiff was indeed the private patient of the second defendant.
Although that might be said to be so, having regard to the documents in isolation, the status of the plaintiff as a patient was not admitted on the pleadings and having heard Dr Thomas give his evidence (especially in cross‑examination) I do not agree that it was unreasonable to take the third defendant to trial. I think it was reasonable for the third defendant to be joined in the action and I think the order sought in par 14 is appropriate.
The next issue requiring determination was the question of whether there should be appointment of costs because of the plaintiff's failure on all but one issue.
In West Gold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998, Anderson J said:
"The general rules as to how costs should go in major litigation such as this where the plaintiff succeeds on some issues but not others, are well known and need not be gone into at any great length, but in deference to the comprehensive submissions of counsel, I will summarise the rules. First, the successful party is, generally speaking, entitled to recover the whole of his costs. Where the successful party has increased the costs by introducing issues on which he has failed, the Court has a discretion to order the party to pay the costs of those issues; O 66, r 3. In the absence of any special order, where the statement of claim contains more than one cause of action, and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, the defendant is entitled to the costs on that or those causes of action on which he succeeds. Order 66, r 2(a). In deciding whether or not to make a special order under O 66, r 2(a) the Court will look at the realities of the case to ensure that substantial justice is done and retains an overriding discretion to mould its costs orders so as to do substantial justice. (His Honour refers to authority and then continues). The Court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar perfect costs orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough."
In his submissions counsel for the plaintiff asserted that:
"The issues of informed consent and negligent medical treatment following admission to the third defendant's hospital in terms of the amount of time taken up during the trial and preparing for trial and in relation to the witnesses who were called to give evidence in relation to the issue of informed consent cannot be sensibly separated or apportioned. All witnesses who gave evidence in relation to informed consent would in any event have given evidence on other issues. Therefore costs cannot be sensibly apportioned such that a percentage of costs relate only to the issue of informed consent. It cannot sensibly be suggested that the issue of informed consent by itself took up 20 per cent of the Court's time as the second defendant suggests."
Further, counsel submitted that:
"The fact that a party is not entirely successful in the whole of the claim, which is more common than not, is not a reason why the parties should not be entitled to reasonable costs in pursuing all issues including those which are not successful."
On behalf of the second defendant the argument relied upon the assertion, in the main, that the claim based upon failure to warn was doomed on the issue of causation. It was said that it must have been realised the plaintiff would have agreed to undergo the procedures, in spite of risks, because of her desperation to have a child. Even if she had been warned she would have proceeded in any event for that reason. This fact must have been known to the plaintiff and her legal adviser and therefore the pursuit of that part of the claim was futile and must have been known as such. Therefore there should be an appointment in costs.
In response the plaintiff asserts that there was a well arguable case on failure to warn narrowed down to the advice, or alleged lack of advice, given to the plaintiff during the crisis of her over‑stimulation. It is argued that the plaintiff had a case on that point because she could have abandoned that cycle and agreed to undergo a further procedure without risking stroke, if she had been properly advised.
Be that as it may I agree with the submissions of the plaintiff generally that the issues in this case could not have been sensibly separated and, furthermore, that the issue relating to evidence concerning warnings did not significantly increase the length of trial. I decline to apportion costs and conclude that the plaintiff is entitled to all of her costs in this matter.
The final issue for determination relates to whether an order should be made, or what order should be made, lifting the limits provided in the Rules in relation to taxed costs.
At the outset I agree with counsel for the plaintiff that it is unnecessary to file affidavits in respect of this issue. This trial took place over fourteen long days and resulted in the delivery of very lengthy Reasons for judgment. As the trial judge I am fully aware of all of the issues and had an incomparable opportunity to observe the relationship between those issues. As has been pointed out, the action was complex, difficult and detailed and this is all self‑evident and requires no further evidence. Apart from the difficulties in relation to the technical complexities of the case, the plaintiff was under a disability and unable to give evidence. English was not her husband's mother tongue. There were occasional instances of communication breakdown.
A number of the special orders sought by the plaintiff were agreed by counsel on behalf of the Second Defendant at the hearing on 10 August.
Proposed order 8 was agreed that:
"the plaintiff be entitled to tax the whole of her costs of getting up without regard to the limits imposed by O 66, r 11 of the Rules of the Supreme Court 1971."
Mr Wallace submitted that given the concession as to the appropriateness of order 8 then many of the items specified in order 10 should not be made. Order 10 particularises a large number of items in respect of which the plaintiff seeks costs be taxed without regard to the limits imposed by O 66, r 11. This is sought on the basis, according to Mr Herron, that to make these particular orders will assist the Taxing Officer in the task of taxation.
Mr Wallace at Transcript 1217 objected to a general lifting of the scale but not to some particular items. He said that no objection was taken to the order sought in 10(a) (statement of claim), 10(g) (the costs of and incidental to one counsel for the plaintiff attending to proof expert witness Prof Jansen in Sydney including reasonable allowances for the time spent travelling and related expenses); 10(l) (the costs of and incidental to researching and reading medical articles and all relevant material including but not limited to brochures, pamphlets, home pages and internet resources including reasonable allowances for time spent travelling to the medical library at the University of Western Australia).
Mr Wallace submitted that many of the other sub‑paragraphs in order 10 were part of getting up and did not need specific reference.
When tackled about duplication Mr Herron said that the orders sought in par 7, par 8 and par 10 went hand in hand. The orders particularised in par 10 were sought for the assistance of the Taxing Officer.
It seems to me that having regard to the nature of this trial, its length, and the nature and amount of evidence that was adduced, and having regard to the issues, it would be reasonable to make an order in terms of par 7 that:
"the plaintiff be entitled to tax the whole of her costs of counsel fees up to and including 28 July 2000 without regard to the limits imposed by O 66, r 11 of the Rules of the Supreme Court 1971."
Similarly, I think that an order can be made in terms of par 9 that:
"the plaintiff be entitled to tax the whole of her costs of solicitor attending trial pursuant to Item 14(a) of the Supreme Court (Contentious Business) Determination 1999 without regard to the limits in Item 14(e) of the 1999 Determination."
There remains a consideration of the other orders sought in par 10. These were dealt with in more detail by counsel for the plaintiff at Transcript 1232.

As to 10(b) ‑ Amended Statement of Claim, it is to be noted that there were many amendments made to the Statement of Claim required by the addition and then discarding of parties to the action. I think having regard to all of the circumstances of this case that these difficulties were the result of the nature of the case and were unavoidable. An order can be made in term of 10(b). An order in respect of 10(c) (trial) hardly seems necessary given the orders made in 7 and 8. It seems to me to be hardly likely that the Taxing Officer will take the view that the costs of trial be taxed without having regard to the orders I have already made.
I do not think orders in terms of 10(d), (e) and (f) are required.
I think that the orders sought in 10 (h), (i), (j) and (k) are part of getting up and are unnecessary.
In respect of 10(m) "The costs of and incidental to reading patient records of King Edward Memorial Hospital, Sir Charles Gairdner Hospital and royal Perth Rehabilitation Hospital" the second defendant asserts that this is part of ordinary discovery and inspection. It is asserted on behalf of the plaintiff that, as distinct from an ordinary case, a very time consuming exercise of meticulous reading of all the patient records and files in these hospitals was required in the circumstances. I agree with counsel for the plaintiff that an order should be made in the terms of 10(m).
Concerning 10(n) I think that should be part of the disbursements. I do not think there is any need for a special order in that regard.
What remains to be decided is the issue of whether or not the order sought in par 5 should be made, especially the reference in that proposed order to costs being "on an indemnity basis".
Counsel for the plaintiff formulated the argument upon the basis that, because of the view of the second defendant concerning apportionment of costs, he would submit that the plaintiff should have costs on an indemnity basis. The entitlement to indemnity costs was because of the conduct of the matter on behalf of the second defendant.
An order for indemnity costs will only be made if there is some special or unusual feature in the case to justify departure from the ordinary practice and in this respect the Court has a wide discretion. (Ipp J in Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu & Anor(No 2) (1997) 18 WAR 190 at 191.
I am not persuaded that there is any special or unusual feature in this case so as to justify an order for indemnity costs. As I have said on a number of occasions this was a very complex and difficult trial, for all parties, not only the plaintiff. Faced with an action that could result in a professionally damaging judgment, in all the circumstances of this particular case, I cannot see how the conduct of the second defendant in the trial can be criticised. I do not think that there were any issues in the trial which were canvassed unnecessarily or at unnecessary length. True it is that no compromise offer was made by any of the defendants. But the defendants were perfectly entitled to take that view. They pay a price in the judgment and I do not accept that that goes to an issue of whether or not indemnity costs should be ordered. I decline to make an order for indemnity costs.