Condron v Victorian WorkCover Authority (Ruling as to Costs)

[2021] VCC 183

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-03327

JONATHON MURRAY CONDRON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Geelong
DATE OF HEARING:	On the papers
DATE OF RULING:	3 March 2021
CASE MAY BE CITED AS:	Condron v Victorian WorkCover Authority (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2021] VCC 183

RULING AS TO COSTS
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Subject:  COSTS

Catchwords:             Plaintiff seeking leave to bring a proceeding for both pain and suffering and loss of earning capacity damages – plaintiff obtained alternative employment – defendant served a notice authorised by the WorkCover (Litigated Claims) Legal Costs Order 2016 before the plaintiff engaged counsel – notice offering a pain and suffering certificate only and damages – proceeding listed for trial – proceeding settled for damages for pain and suffering not significantly greater than the previous offer – whether the plaintiff is entitled to certification of counsels’ fees in the circumstances

Legislation Cited:     WorkCover (Litigated Claims) Legal Costs Order 2016
Ruling:  The plaintiff is entitled to the certification of counsels’ fees.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab with Mr A Saunders	Maurice Blackburn Pty Ltd
For the Defendant	Mr S A Smith QC with Ms K M Manning	Wisewould Mahony

HIS HONOUR:

Introduction

1       The remaining issue in this serious injury application is whether the plaintiff is entitled to certification of counsels’ fees.

2       Mr A Macnab appeared with Mr A Saunders of counsel for the plaintiff and Mr S Smith QC appeared with Ms K Manning of counsel for the defendant.

The basic facts

3       The following facts have been derived from the parties’ Court Books and the very helpful written submissions of the plaintiff dated 21 January 2021 and the defendant dated 10 February 2021:

·     13 February 2015 – the plaintiff suffered injury to his spine.

·     24 July 2020 – the plaintiff filed an Originating Motion seeking leave to bring a proceeding at common law.

·     12 August 2020 – the solicitors for the plaintiff informed the solicitors for the defendant that the defendant’s offer to settle the plaintiff’s claim by the provision of a serious injury certificate for pain and suffering was rejected.

·     14 August 2020 – the solicitors for the defendant emailed the solicitors for the plaintiff offering to settle the plaintiff’s claim for damages for $200,000. The offer comprised $128,942 damages for pain and suffering plus retention of compensation already paid.

·     20 August 2020 – the solicitors for the plaintiff emailed the solicitors for the defendant rejecting the offer.

·     26 October 2020 – the solicitors for the defendant served a Notice by email offering to compromise the plaintiff’s proceeding by the provision of a serious injury certificate limited to pain and suffering.

·     26 October 2020 – by letter bearing this date, the solicitors for the defendant offered to settle the plaintiff’s claim for damages for $200,000 for pain and suffering in full and final settlement of the claim (which included the retention of compensation already paid).  The solicitors for the plaintiff did not respond to this offer.

·     18 January 2021 – the proceeding was listed for trial before me.  The proceeding was stood down at the request of counsel.  It settled for $143,942 plus retention of compensation already paid.  The total damages comprising these two components amounted to $215,000.

The issue between the parties

4       The plaintiff applied for certification of counsels’ fees for leading counsel and junior counsel.  The defendant submitted that the plaintiff is not entitled to the certification of these fees and the amounts applied for, or alternatively, if an entitlement exists that the amount of the fees should be a significantly reduced amount from the amounts applied for.

The costs order

5       The parties agreed that the WorkCover (Litigated Claims) Legal Costs Order 2016 (“the costs order”) applied to this proceeding, and established a basis upon which costs are recoverable by the plaintiff dependent upon the time of resolution of the Originating Motion.

6       The “Notice” referred to in my summary of the basic facts refers to “the Notice” defined in clause 3 of the Costs Order.  The entitlement of the plaintiff to recover professional costs and disbursements is defined in Part A of clause 4 of the Costs Order.  That entitlement is measured by a number of factors.  One factor which is relevant here is sub-part A2 of Part A which limits the recovery of professional costs and disbursements where the Notice contains an offer to provide a pain and suffering certificate upon the abandonment of the additional application for a loss of earning capacity certificate.

7       I do not think it is necessary for me to go beyond this simple summary of the relevant parts of the Costs Order because of the confined nature of the defendant’s submission.

The defendant’s submission

8       The defendant submitted that the service of the Notice called upon the plaintiff to consider his prospects of obtaining the leave of the Court to bring a common law proceeding to recover damages for both pain and suffering and loss of earning capacity.  Furthermore, the defendant submitted that the purpose of the Costs Order is to facilitate the settlement of an originating motion in a timely and cost-effective manner.

9       Although, the proceeding settled for a marginally increased quantum of damages for pain and suffering, the defendant submitted that the solicitors for the plaintiff had ample opportunity to engage in negotiations with the solicitors for the defendant on and after 26 October 2020, and presumably before they retained counsel.  By implication, the defendant represented that the same result could have been obtained had the solicitors for the plaintiff seized the opportunity to continue negotiating with the solicitors for the defendant without the need to retain counsel.

The Plaintiff’s submissions

10      The plaintiff submitted that the prospects of the plaintiff obtaining the leave of the Court to bring a common law claim for loss of earning capacity remained fluid and uncertain for the following reasons:

·     At the time the Notice was served, the plaintiff had obtained employment as a funeral director’s assistant on a part-time basis.  It was unclear whether he had the capacity to cope with the duties required of him in that employment.

·     The recent acquisition by the plaintiff of that employment did not immediately disclose the hours that he would be capable of working and the income that he would be capable of earning from that employment.

·     It was prudent to obtain medical opinions from Dr N Grover, general practitioner, and Dr K Brasier, occupational physician, relevant to the plaintiff’s residual capacity for work.

Ruling

11      I was addressed by counsel orally.  They both provided me with a truncated chronology of relevant events, and their respective submissions on why I should rule in a particular way.  It was difficult to fathom what I was dealing with, so I directed counsel to provide me with short submissions providing me with a chronology, and the substance of the position each occupied.

12      I do not doubt that in the context of a Notice offering a pain and suffering certificate only upon the abandonment of loss of earning capacity required the solicitor for the plaintiff to exercise prudence in determining whether the evidence in the possession of the plaintiff enabled such a serious decision to be made within a reasonable time after the receipt of the Notice and before counsel were retained.

13      I accept without hesitation that a reasonably prudent solicitor would not only obtain further medical evidence, but also the opinion of counsel to determine whether an offer of settlement of this kind should be accepted or rejected.  I have not been informed of the time taken to obtain the further medical evidence, but my general understanding of personal injury proceedings is that these things simply take time.

14      It is for these reasons that I reject the defendant’s submission that the solicitor for the plaintiff was in a position to assess whether to accept the offer of settlement or not, contemporaneously with the service of the Notice.  I do not think it is as simple a matter as that.

15      However, what distinguishes what I am dealing with here with the examples of orders made, to which I was referred by counsel, is that negotiations occurred which resulted in the plaintiff accepting a better offer than the offer made pursuant to the Notice. That of itself, at least on the face of it anyway, distinguishes what occurred here from the examples of orders made in other cases.

16      I think the purpose of the Costs Order is to avoid a plaintiff being made a reasonable offer of a pain and suffering certificate, and then simply blithely pressing on, and then accepting the very offer which was made earlier.  The costs penalty must then apply; however, that does not mean that there may not be some extenuating circumstances which may operate against the plaintiff suffering the costs penalty.

17      For all of these reasons I reject the submissions made by the defendant.  It follows that I will make the orders applied for by the plaintiff and certify for counsels’ fees accordingly.

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