Connector Drilling Pty Ltd v Altham
[2007] WADC 84
•25 MAY 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : FENBURY DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
|
AND
RONALD JOHN ALTHAM
First Defendant
SAMPSONS TOURS PTY LTD
Second Defendant
| FILE NO/S | : | CIV 236 of 2004 |
| BETWEEN | : | SAMPSONS TOURS PTY LTD Plaintiff |
| AND | ||
| BENJAMIN HAROLD WHITMAN First Defendant | ||
| CONNECTOR DRILLING PTY LTD Second Defendant | ||
| Catchwords: |
Costs - Motor vehicle accident - Turns on own facts
Legislation:
Nil
Result:
In action No 2863 of 2003, the first and second defendants pay the plaintiffs' costs
costs
Representation:
CIV 2863 of 2003
Counsel:
| Plaintiff | : | Mr P V Batros |
| First Defendant | : | Mr J P T Olivier |
| Second Defendant | : | Mr J P T Olivier |
Solicitors:
| Plaintiff | : | Jarman McKenna |
| First Defendant | : | Talbot Olivier |
| Second Defendant | : | Talbot Olivier |
CIV 236 of 2004
Counsel:
| Plaintiff | : | Mr G K Paull |
| First Defendant | : | Mr P V Batros |
| Second Defendant | : | Mr P V Batros |
[2007] WADC 84
Solicitors:
| Plaintiff | : | CCI Legal |
| First Defendant | : | Jarman McKenna |
| Second Defendant | : | Jarman McKenna |
Case(s) referred to in judgment(s):
Godden v Alford [1960] WAR 235
[2007] WADC 84
FENBURY DCJ
FENBURY DCJ: The hearing of these two actions, heard simultaneously, took place over four days.
The actions arose out of a collision between two motor vehicles on the Great Eastern Highway in the Goldfields.
Benjamin Whitman, who was employed by Connector Drilling P/L was driving a utility towing a caravan.
Ronald Altham employed by Sampsons Tour P/L was driving a large passenger coach.
5 In the course of passing the utility and caravan, the passenger coach
collided with it and all three vehicles ran off the road ending up in a
tangled mess.6 The first action commenced, being CIV 2863 of 2003, was by
Connector Drilling against Altham. In effect the utility driver and his employer sued the coach driver. In March 2005, after action CIV 236 was commenced, Sampsons Tours, Altham's employer, was joined as a second defendant.
7 Action No CIV 236 was commenced in 2004 and it was in effect the
reverse, ie the coach driver and his employer sued the utility driver and
his employer.8 As a reasonable generalisation, the evidence adduced and required
for the hearing of both these actions was the same. The addition of Sampsons Tours in action CIV 2863 required no identifiable additional attention, being almost a formality. It was not contested that both Sampsons Tours and Connector Drilling were vicariously liable for any negligence attributed to their respective employees Altham and Whitman.
9 In reasons published and delivered on 18 October 2006, the Court
found that both drivers (and therefore their respective employers) were negligent. Liability was apportioned on the basis that the driver and his employer of the passenger coach, Sampsons, was 70 per cent responsible for the accident. The driver of the utility and his employer was 30 per cent responsible.
10 Although quantum was agreed, it is noted that the claim of
Connector Drilling was capped at $30,000 and the claim of Sampsons
Tours was capped at $110,000.
[2007] WADC 84
FENBURY DCJ
11 Given the apportionment of liability 70/30 in favour of Connector
Drilling, then, as Mr Paull, put it, Connector Drilling is entitled to recover 70 per cent of $30,000, or $21,000 from Sampsons and Sampsons is entitled to recover 30 per cent of $110,000 or $33,000 from Connector Drilling. Thus, the net effect is that Sampsons are entitled to $12,000 from Connector Drilling.
In a sense both sides were partly successful and partly unsuccessful.
These proceedings require the determination of the costs orders that
should follow.
14 It was submitted on behalf of Connector Drilling that the plaintiff in
action 2863 of 2003 with Whitman the first defendant in action No 236 of
2004 that the following orders were appropriate:
"1. There be judgment for the plaintiff against the first and second defendants in action No 2863 of 2003 in the sum of $65,551.35. 2. There be judgment for the plaintiff against the first and second defendants in action No 236 of 2004 in the sum of $33,000. 3. There be judgment for the first and second defendants in the counterclaim in action No 236 of 2004 in the sum of $21,000. Costs: 4. The first and second defendants do pay the plaintiff's costs in action No 2863 of 2003 to be taxed if not agreed. 5. The plaintiff do pay the first and second defendants' costs in action No 236 of 2004 to be taxed if not agreed. Alternatively:
6. The first and second defendants do pay the plaintiff's costs in action No 2863 of 2003 to be taxed if not agreed.
7. There be no order as to costs in action No 236 of 2004."
[2007] WADC 84
FENBURY DCJ
15 Counsel for Sampsons Tours and Altham only wished to make
observations about proposed orders 6 and 7 being in the alternative to
proposed orders 4 and 5. (T503).16 As proposed orders 4 and 6 are identical, then the controversy was
whether an order should be made that the plaintiff (Sampsons) pay the first and second defendants' costs in action CIV 236 of 2004 or whether there be no order for costs made in that action.
17 Keeping an eye on the need carefully to examine the realities of the
case and frame a costs order such that justice so far as costs is concerned is done between the parties as nearly as possible (Godden v Alford [1960] WAR 235 at 237) and looking at the substance of these two actions, as I have earlier done, it seems to me to be preferable to make the order proposed in par 5.
There will therefore be orders in the terms of 1 to 5 of the orders proposed above.
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