Burns v Mastaglia - [2007] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BURNS -v- MASTAGLIA & ANOR [2007] WADC 114

CORAM: FENBURY DCJ

HEARD: 7 MARCH 2007

DELIVERED : 6 JULY 2007

FILE NO/S: CIV 596 of 2002

BETWEEN: JAMES BURNS
Plaintiff
AND
NATHAN JARED MASTAGLIA
First Defendant
GARY HAYWOOD
Second Defendant

Catchwords:

Appeal - Taxation of costs - Turns on own facts

Legislation:

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr S V Forbes
First Defendant             :     Mr J R Brooksby
Second Defendant         :     Mr J R Brooksby

Solicitors:

Plaintiff:     Stephen Browne Lawyers
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; CIV 2645 of 1998; 23 April 2001

FENBURY DCJ: The plaintiff seeks a review of taxation of costs taxed by a Deputy Registrar of this Court. This was an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident that was caused by the negligence of the defendants.
At trial liability for negligence was not in dispute. The defendants each conceded they were negligent. There was no issue of contributory negligence on the part of the plaintiff.
Consequently the Court was only required to assess the quantum of damages that should be awarded to the plaintiff. The Court was not required to determine fault.
It was not disputed that the plaintiff had physical disabilities at the date of trial. The expert medical witnesses called by the defendants agreed with the plaintiff's witnesses that the plaintiff suffered from significant spinal disabilities and reduced earning capacity that would be likely to result in economic loss.
There were no other expert witnesses called.
The emphasis of the hearing was not much on the quantum of the claim in terms of whether there was, the extent of, and the effect of disability, but more on whether the plaintiff's residual spinal symptoms he undoubtedly had were caused by the negligence of the defendants or by some other cause. Save for disputation about when the plaintiff commenced to suffer certain spinal symptoms vis-à-vis the date of the accident, his evidence was not much disputed.
The critical question was whether the plaintiff had injured his lower spine in the motor vehicle accident as he suggested or whether it was as a result of a later slip in the workplace. The plaintiff's assertion he complained of low spine symptoms after the motor vehicle accident but before the slip at work was the subject of brief but vigorous challenge.
It was also put that the accident had not caused any relevant acceleration/deceleration of the plaintiff's vehicle; that the plaintiff suffered no significant trauma as a result of the motor vehicle accident; and that his injuries were caused by the slip at work, exacerbated by an asymptomatic pre-existing degenerative spinal condition.
The plaintiff's counsel asserts that these matters took the case out of the classification of being an "assessment of damages only". That phrase is said to arise from Item 19(g) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 which sets the maximum level of fees for various aspects of the conduct of a trial but then states:
"Where the only issue tried is the assessment of damages, three quarters of the amounts prescribed by items … shall be allowable, unless otherwise directed by the Court."
The plaintiff was successful in this action and obtained a judgment against the defendants in the sum of $350,330, which was reduced on appeal to just over $300,000.
The plaintiff's bill of costs was taxed before Deputy Registrar Hewitt of this Court on 14 November 2005 and these proceedings comprise objections by the plaintiff to certain orders made in respect of some of the items in the bill.
In respect of most of the items specified by counsel in his summary of submissions, it was the approach of the Deputy Registrar that the case comprised "only" an assessment of damages and that therefore the maximum allowable under the scale was three-quarters of the maximum specified.
It was submitted on behalf of the plaintiff that the case was much more than a mere assessment of damages. It was said to be much more because the causation of injury loomed large in the hearing.
I do not accept this submission. In my view the issues that arose in this trial were issues that commonly arise in assessments of damages. Whether a particular injury has been caused by a particular event is a common issue and is to be determined by a consideration of medical evidence routinely available in assessments of damages.
In some cases, of course, experts in other areas are required. But it is notable here that the only expert witnesses were treating practitioners and those involved in providing medico‑legal opinion.
It was put the matter was complex. Reference to the length of trial, the number of pages in the reasons for decision and the like really do not seem to me to bear upon an assessment of complexity. The assessment was very straightforward once the causation issue was determined (though the Court erred in the past economic loss assessment). Even if it could be said that the causation issue was over and above the mere or pure assessment of quantum, the assessment of the quantum was so otherwise free of controversy as to attribute minimal significance to the difference. The issue of concern to the Court of Appeal was not addressed by either counsel at trial.
I accept defence counsel's submissions in respect of these issues. Put shortly, cases arising out of motor vehicle accidents involving the assessment of damages where liability for negligence is admitted frequently involve considerations of causation. These often turn on mere matters of chronology, ie, the issue of when, relative to the alleged accident, it was that the plaintiff first complained about a symptom. Causation in this area is inextricably bound up with and part of the assessment of damages. It seems to me, it has always been considered to be so.
The general approach of the Deputy Registrar in taxing the plaintiff's bill, having taken the view that the maximum allowable under the scale and relevant items was three-quarters of that expressed, was to award a sum that was generally around about three-quarters of that lesser maximum. In other words, as an assessment of damages, this matter was not one which deserved to be categorised as justifying the maximum for an assessment but that about three-quarters of the maximum for an assessment was appropriate.
It seems to me that this was a fair and reasonable approach in the matter. I am not persuaded that the Deputy Registrar either erred in principle or at all in the view that he took of the case. I think he was correct.
It was then complained on behalf of the plaintiff that the Deputy Registrar erred in applying the provisions of Item (19)(g) above mentioned to the scale providing for the attendance of solicitor at trial referred to in Item 19(e).
From the terms of Item 19(g), it is true that reference is not made to the application of the "three‑quarters rule" to the allowance for the party's solicitor attending trial.
The nature of the complaint was that the Deputy Registrar reduced the allowance for attendance of solicitor by 25 per cent. It is argued that he should not have done so.
Counsel for the defendant submitted:
"… it is quite clear .. that the $341 is a maximum allowable hourly rate and it is expressed as such at p2319. $341 is the maximum allowable hourly rate for someone performing the duties that Mr Klein was performing."
Counsel then went on to submit that it would be unrealistic to take the view that if the attending solicitor is a senior practitioner then the inflexible rule is that the maximum hourly rate should be charged. As he put it:
"One must have regard to the quality of work which was performed and the result would be, as my friend has pointed out, that Mr Klein would receive more than counsel if in fact the maximum hourly rate was to be allowed."
Reference was made to the decision of Judge Blaxell (as he then was) in Gloux v WMC Resources Ltd, unreported and unpublished; DCt of WA; CIV 2645 of 1998; 23 April 2001. The plaintiff relied upon the remarks of Judge Blaxell as follows:
"…once there is a determination that it was necessary for the solicitor to be present at the subsequent days of the trial, given that he was the person who was fully seized of the matter, was the person who had the handling of the matter, then the fact that he is a senior practitioner is something which cannot be avoided. It is not the situation where it is possible to substitute a junior solicitor at short notice.
In my view, in those circumstances from the plaintiff's point of view, there was no other option but to have that particular solicitor present, who was a senior solicitor, and as I have indicated, I think I can take notice of the fact that it is a senior solicitor from a small practice and in my view it is appropriate in those circumstances that there should be an allowance of …[the full amount] per hour."
The learned Judge took the view that there was an error in principle. He then allowed the full amount.
As to this it was submitted on behalf of the defendant that:
"I think all that the Taxing Officer was doing was saying 'Well I don't think the maximum is allowable. I have a discretion and I'm not prepared to allow that maximum.' So I don't think it goes any further than that and I don't, with respect, feel that the decision of his Honour Judge Blaxell as he was a Judge of this Court, is any more than persuasive authority and I would ask your Honour not to follow it."
I agree with counsel for the defendant that there is no inflexible rule about this. I do think it is an anomaly, that, if paid the full amount, the solicitor would receive more than counsel for his involvement in the case at trial. That does not sound to me to be reasonable.
Accordingly, I decline to interfere with the taxation made by the Registrar in respect of this matter.