Carr & Anor. v Anderson (No. 2)

[2001] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Carr & Anor. v. Anderson (No. 2) [2001] QDC 305

PARTIES:

IAN JOHN CARR   (First Plaintiff)
And
TERRI CARR   (Second Plaintiff)
And
KEITH ANDERSON   (Defendant)

FILE NO/S:

D264 of 2001

DIVISION:

Civil

PROCEEDING

Costs

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

6^th December 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

On the papers

JUDGE:

Judge J.M. Robertson

ORDER:

Plaintiffs to pay the defendant’s costs of and incidental to the claim on the standard basis. 1.   

Defendant to pay the plaintiffs’ costs (if any) of and incidental to the application for indemnity costs.2.   

CATCHWORDS:

COSTS – Indemnity costs for successful defendant – offer to settle not complying with Rules – whether recourse to common law principles is necessary

Cases cited:
Cutts v Head [1984] 1 All ER 597
Calderbank v Calderbank [1975] 3 All ER 333
Rouse v Shepherd (No 2) and Others [1994] 35 NSWLR 277
Carr v Anderson [2001] QDC 300
Andrews v Barnes (1887) 39 Ch D 133
Preston v Preston [1981] 3 WLR 619
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Messiter v Hutchinson (1987) 10 NSWLR 525
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721

Statutes considered:
Uniform Civil Procedure Rules, rr.355, 680, 704

SOLICITORS:

Boyce Garrick Lawyers (for the plaintiff)
Flower & Hart Solicitors (for the defendant)

1. On the 9^th November 2001 I dismissed the claims of both plaintiffs. On that day the defendant applied for indemnity costs and I made directions that the parties provide written submissions directed to that issue. The defendant’s solicitors provided written submissions on the 16^th November 2001. He relies on an affidavit of Katharine Patrice Phillip sworn the 14^th November 2001. I give leave to the defendant to file and read that affidavit. The plaintiff’s submissions were delivered on the 27^th November 2001, and in reaching my decision I have taken into account that material.

1. The hearing was conducted over two days from the 22^nd-23^rd October 2001. By facsimile dated the 24^th September 2001 the defendant’s solicitors advised the plaintiffs’ solicitors in these terms:

“We refer to Professor Levi’s report and the medical reports served on behalf of the defendant as follows:-

1.Report of Dr Graeme Beardmore dated 13 September 2001.

2.Report of Dr Turnbull dated 18 September 2001.

3.Additional undated report of Dr Beardmore.

All of the experts who have provided reports for the defendant are supportive of the defendant’s treatment of Mr Carr. Not only was it reasonable to have the lesion for review in one week’s time it would have been irresponsible to attempt to biopsy an inflamed area in an immuno-suppressed patient.

We note that you have not served any expert opinion criticising Dr Anderson’s treatment.

The only expert opinion served on behalf of the plaintiffs does not even support the plaintiffs’ claim with respect to a loss of a chance of the possibility of an improved outcome. Professor Levi has…