Cox v Crooks (No 2)
[2000] TASSC 34
•17 April 2000
[2000] TASSC 34
CITATION: Cox v Crooks (No 2) [2000] TASSC 34
PARTIES: COX, Brian James
v
CROOKS, Steven Richard
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 121/1994
DELIVERED ON: 17 April 2000
DELIVERED AT: Hobart
HEARING DATES: 31 March 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Evidence - Admissibility and relevance - Opinion evidence - Expert opinion - In general - Estimation of legal costs not an organised branch of knowledge - Opinion evidence inadmissible.
R v Bonython (1984) 38 SASR 45, followed.
H G v R (1999) 160 ALR 554; Clark v Ryan (1960) 103 CLR 486, applied.
Aust Dig Evidence [55]
Procedure - Costs - General rule costs follow the event - Costs of whole action - Where money paid into court or offer of compromise made - Other cases - Offer by letter expressed to be inclusive of costs - Distinguished from "Calderbank letter".
Messiter v Hutchinson (1987) 10 NSWLR 525; Hanave Pty Ltd v L F O T Pty Ltd (formerly Jagar Pty Ltd) & Ors [1998] FCA 1051; Smallacombe & Ors v Lockyer Investment Co Pty Ltd (1993) 114 ALR 568; Susan Pender Jewellery Pty Ltd v Mirage (Operations) Pty Ltd & Anor [1997] ATPR 43612, followed.
Aust Dig Procedure [556]
REPRESENTATION:
Counsel:
Plaintiff: G L Jones
Defendant: C N Dockray
Solicitors:
Plaintiff: Douglas & Collins
Defendant: C N Dockray
Judgment Number: [2000] TASSC 34
Number of Paragraphs: 27
Serial No 34/2000
File No 121/1994
BRIAN JAMES COX v STEVEN RICHARD CROOKS
REASONS FOR JUDGMENT UNDERWOOD J
17 April 2000
On 23 December 1999, reasons for judgment in Cox v Crooks [1999] TASSC 152 were handed down. I tentatively assessed the plaintiff's damages in the sum of $50,000, but postponed ordering entry of judgment in order to give counsel an opportunity to make further submissions with respect to (inter alia) any payments that may have been made pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1988. The hearing of the action resumed on 31 March 2000 and after hearing counsel, I ordered that judgment be entered for the plaintiff against the defendant for $50,000.
Mr Jones, counsel for the plaintiff, then sought an order that the defendant pay the plaintiff's taxed costs of the action. Mr Dockray, counsel for the defendant, opposed the making of that order and submitted that:
· there should be no order as to costs; or
· there should be an order that the defendant pay a defined fraction of the plaintiff's taxed costs of the action; or
· there should be orders that the defendant pay the plaintiff's costs up to 24 February 1999 and that thereafter the plaintiff pay the defendant's taxed costs of the action.
The plaintiff suffered injuries in a motor vehicle accident. Liability was never put in issue. At an early stage the then solicitors for the defendant indicated to the solicitors for the plaintiff that the Motor Accidents Insurance Board was prepared to pay a reasonable sum by way of damages for the defendant's tortious act.
In the accident, the plaintiff suffered injuries to his face, including a fractured nose. In consequence, he lost his sense of smell and taste. In addition, the plaintiff suffered from intermittent low back ache that was accepted as having been caused by the accident. The plaintiff spent a short period in hospital, and after about two weeks convalescence, returned to his work as an electrician. The plaintiff subsequently developed headaches and neck pain which eventually became so disabling that he was unable to continue to work as an electrician and consequently his earning capacity was greatly diminished. At trial, the quantum of damages was at large, but the principal issue was expressed in my reasons for judgment at 1 as follows:
"At trial, the veracity of the plaintiff was not seriously challenged and the defendant accepted liability to pay for loss and damage caused by his tortious act. The principal issue in this litigation is whether the plaintiff's neck pain and headaches are causally related to the defendant's tort. In addition to the plaintiff and his present employer, evidence was given by five medical practitioners. Their opinions on the issue of a causal link between the accident and the plaintiff's neck pain and headaches varied. Critical to the validity of each opinion is the plaintiff's pre and post accident history."
The finding was that the plaintiff had failed to establish that it was more probable than not that the defendant's tort was the cause of his disabling neck pain and associated headaches and therefore damages were assessed for only the initial facial injuries, the immediate sequellae, the permanent loss of smell and the low back pain.
Upon the issue of costs, Mr Dockray tendered in evidence a number of documents. Initially, Mr Jones objected to the admission of these documents, but ultimately withdrew his objection. Those documents included the following:
· 29 March 1994, a letter from the then solicitors for the defendant to the solicitors for the plaintiff advising that liability was not in issue and that they would accept service of a writ.
· 14 April 1994, interlocutory judgment for the plaintiff against the defendant for damages to be assessed.
· 21 August 1998, plaintiff's offer of compromise, made in accordance with the Rules of Court, O24A, r2, offering to compromise the claim upon receipt of $300,000, plus costs to be taxed. This offer also dealt with any liability that the plaintiff may have to Centrelink, the Health Insurance Commission, and pursuant to various Commonwealth Acts of Parliament.
· 24 September 1998, defendant's offer of compromise made in accordance with the Rules of Court, O24A, r2, offering to compromise the plaintiff's claim upon payment of the sum of $30,000, plus costs to be taxed. This offer also dealt with any liability that the plaintiff may have to Centrelink, the Health Insurance Commission, and pursuant to various Commonwealth Acts of Parliament. Curiously, par3 of the offer provided that it was made "with a denial of liability".
· 3 February 1999, "offer by letter" from the solicitor for the defendant to the solicitors for the plaintiff in the following terms:
"without prejudice
save as to costs
Dear Sirs
Re:Brian James Cox and Steven Richard Crooks (Your Ref: GLJ:JMC 941080)
I am instructed to make a final offer to settle your client's claim. My instructions are to offer the sum of $100,000.00 inclusive of costs, Centrelink, HIC and CRS in full and final settlement.
The extent of the offer ought not be construed as being any concession by the Board as to its prospects of successfully arguing that the quantum of your client's claim is not significant.
The quantum of the offer acknowledges, however, that the interstate aspect of this case (involving at least three interstate expert witnesses) is likely to result in a heavy cost burden for the loser.
This offer is open for acceptance for a period of twenty one (21) days from today."
In addition to tendering those documents, Mr Dockray sought to adduce evidence from a legal practitioner, Mr R Phillips. Mr Jones objected to the reception of evidence from Mr Phillips. The evidence was taken de bene esse. Mr Dockray contended that the evidence was relevant to the question of whether the "offer by letter" was more advantageous to the plaintiff than the judgment. In summary, Mr Phillips' evidence was that in his opinion the "absolute maximum of the plaintiff's party and party legal costs as at 1 March 1999 was just in excess of $18,000". Accordingly, Mr Dockray submitted that upon this evidence I should find that the "offer by letter" was more advantageous to the plaintiff than the judgment. However, it is first necessary to determine whether Mr Phillips' evidence was admissible upon the argument as to costs.
Although the "offer by letter" does not describe the costs referred to therein as "party and party costs", I conclude that both the sender and the recipient would understand the reference to costs in the "offer by letter" to be a reference to "party and party costs". There was no circumstance which would make the defendant liable to pay anything more than "party and party costs". The Rules of Court, O80, rr26 and 68 provide:
"26 Except in a case to which section 13 of the Act, rule 27 of this Order, or Order 3 applies, and subject to rule 45 of this Order and to an order of a judge made under rule 28 of this Order, a solicitor is entitled in every cause and matter to charge and be allowed the fees set forth in Table A of Appendix M.
68 Costs which do not appear to the taxing officer to have been necessary or proper for the attainment of justice, or for maintaining or defending the rights of the party, or which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party, shall not be allowed to any party, to be paid or borne by another party."
The amount of costs that a successful plaintiff is able to recover from an unsuccessful defendant for any item of work done by the former's solicitor is determined, firstly, by the application of r68 and, secondly, by the application of r26. Accordingly, it seems to me that whether an item of work undisputedly done by a solicitor falls within the scope of these Rules is a question of law.
Evidence of domestic law is unnecessary for judicial notice is taken of such law, especially the Rules of Court. See Cross on Evidence (6th Aust Edn), par3075 and the cases noted there. Thus, upon proof of the fact that a solicitor performed a necessary item of work, it is unnecessary to call evidence to show that that item of work fell within the scope of the Rules of Court, Appendix M, Table A, thereby entitling the successful plaintiff to recover the amount shown in the Table for that item of work from the unsuccessful defendant.
This raises the interesting question of whether evidence of a matter in respect of which judicial notice is taken is not only unnecessary but is also inadmissible. This question has not often been the subject of judicial consideration. Wigmore, in his Treatise on Evidence, (3rd Edn) at par2567 expresses the view that judicial notice does not prevent a party also adducing evidence with respect to the same matter. However, in Neeves v Burrage [1849] 14 QB 504: 117 ER 196, it was held that evidence of a rule of equity was inadmissible because the court took judicial notice of the law. This interesting question is dealt with in an article by Professor G D Nokes, The Limits of Judicial Notice (1958) 74 LQR 59 at 70 et seq. Professor Nokes suggests that the proper view is that with respect to matters of law, evidence is inadmissible, but with respect to other matters of which judicial notice is taken, the facts judicially noticed may be rebutted by evidence. However, for the purpose of determining the admissibility of Mr Phillips' evidence, it is unnecessary to explore this interesting question any further. Mr Phillips had not seen the plaintiff's solicitor's file and did not know what work the plaintiff's solicitor had in fact done on behalf of the plaintiff prior to the day that the "offer made by letter" expired. Mr Phillips familiarised himself with the reasons for judgment, studied the defendant's solicitor's file and read the transcript of evidence. From all this material, he expressed an opinion about the work that the plaintiff's solicitor had performed and the amount of costs that such work attracted in accordance with the relevant Rules of Court.
Mr Phillips' undisputed evidence was that he has practised almost exclusively in the field of personal injury litigation for almost all of the last 15 years and in the course of his professional duties, often has been required to estimate costs. He said that he had often been required to estimate the plaintiff's legal costs in cases in which he was instructed by the Motor Accidents Insurance Board to act for the defendant. He said that he has also been required to estimate the costs of plaintiffs in litigation under the control of himself or his partners, and the costs incurred by plaintiffs in litigation under the control of another firm of solicitors.
A witness is only permitted to give evidence of his or her opinion if the subject matter of that opinion falls within the class of subjects upon which expert testimony is permissible. In R v Bonython (1984) 38 SASR 45, King CJ said at 46 - 47 that two preliminary questions needed to be answered:
· "(a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and
· (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court."
That passage was cited with approval in H G v R (1999) 160 ALR 554 at 566. See also Clark v Ryan (1960) 103 CLR 486.
With respect to the second question, Dixon CJ, Kitto and Taylor JJ said in Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119 that before opinion evidence may be given about the issue under consideration in that case, "it must be shown that [it] form[s] a subject of special study or knowledge …". In Clark v Ryan (supra), Menzies J said, at 501 - 502:
"Opinion evidence to account for a happening that is described to a witness is admissible only when the happening can be explained by reference to an organized branch of knowledge in which the witness is an expert."
In this case, no evidence was led to satisfy the second question. The only evidence led was that Mr Phillips has often estimated costs in the circumstances that he described. There was no evidence that the estimation of legal costs and an expression of opinion with respect to the amount of those costs is the subject of an organised branch of knowledge in which those who are trained or experienced share generally accepted principles and techniques. See Clark v Ryan (supra) at 508.
Accordingly, I rule that the opinion evidence expressed by Mr Phillips is inadmissible because no sufficient basis has been laid for evidence of opinion. I turn now to the issue of costs.
Absent the "offer by letter", there is no doubt that the proper exercise of the discretion calls for the making of an order in the terms sought by the plaintiff. Although liability was never in issue, the plaintiff was entitled to commence proceedings and prosecute them to a judgment. As he obtained a judgment, the costs should "follow the event" unless there is good reason not to do so. Good reasons would include the making of an offer of compromise by the defendant in terms more favourable to the plaintiff than the judgment and a payment into court of a sum in excess of the judgment sum. On behalf of the defendant, Mr Dockray submitted that another good reason for not making the order sought by the plaintiff was the fact that the plaintiff failed upon the substantial issue in the case.
Not unexpectedly, having regard to the circumstances of the collision, the defendant did not challenge the plaintiff's claim at trial that immediately after the accident he suffered pain and headache. The defendant concentrated on the plaintiff's evidence as to the time he first experienced neck pain, as opposed to immediate post-accident generalised pain. A considerable amount of time was devoted to this issue and the following findings were made with respect to it:
· the plaintiff was off work after the accident for a period of approximately two weeks;
· during the majority of that time, he was "sore all over";
· the plaintiff experienced no symptoms of discomfort or stiffness in his neck other than general soreness to the same degree as that which existed in other parts of his body, until after he had been back at work about two weeks and his light work load was building up, ie, about a month after the accident as described by the plaintiff to Dr Maclaine-Cross.
The picture was complicated in that an x-ray of the plaintiff's spine taken two years before the accident revealed changes at the C7/T1 level, the site of the plaintiff's ongoing pain. Although this condition was asymptomatic prior to the accident, the symptoms may have been caused by the trauma of the accident, increased work load, or even some unremarkable event such as sneezing. The plaintiff carried the onus of establishing that it was more probable than not that the symptoms were due to the accident and in this respect, his immediate post-accident history was a critical factor. The plaintiff failed to discharge the onus he carried with respect to this, but it can be seen from the foregoing that the whole case concerned the extent to which the defendant's tort has disabled the plaintiff. In this sense, there were no discrete issues at the trial which would entitle the defendant to avoid the ordinary exercise of the discretion. The appropriate way for the defendant to resist the plaintiff's claim for damages and avoid payment of his costs of the whole action, was to make a payment into court or an offer of compromise, neither of which were less favourable than the judgment sum.
Further, Mr Dockray relied upon the "offer by letter" as a circumstance to displace the ordinary exercise of the discretion. This document was described by Mr Dockray as a "Calderbank letter" which, he contended, was more favourable to the plaintiff than the judgment.
There is ample authority for the proposition that in Australia, a "Calderbank letter" is a relevant consideration on the issue of costs. In the course of his most helpful argument, Mr Dockray cited a considerable number of cases to that effect. They included Messiter v Hutchinson (1987) 10 NSWLR 525; D'Alessandro & D'Angelo v Bouloudas (1992) 10 WAR 191; Donnelly v Edelsten (1994) 121 ALR 333. Mr Jones did not contend to the contrary, but submitted that the letter was uncertain in its terms and therefore should not have the effect of depriving the plaintiff of an order for costs of the action. Mr Jones submitted that uncertainty arose out of the fact that the offer was expressed to be inclusive of costs and, accordingly, the plaintiff was not able to determine the amount that he would receive if he accepted the offer. In support of his submission, Mr Jones relied upon Smallacombe & Ors v Lockyer Investment Co Pty Ltd (1993) 114 ALR 568.
Smallacombe was a case involving a claim for damages under the Trade Practices Act 1974 (Cth). The plaintiff recovered a judgment in the sum of $326,000. In order to try and avoid payment of costs, the defendant relied upon a letter sent by it to the plaintiffs, offering $400,000 in settlement of all claims, including costs. Spender J acknowledged that a "Calderbank letter" was a matter to take into account in the proper exercise of the discretion with respect to costs. His Honour then identified some circumstances which might make it inappropriate to give effect to such letter, one of which was the existence of a genuine doubt as to the worth of the offer. He said, at 573:
"It [a letter offering to settle by a sum inclusive of the costs] requires an applicant to assess two components: the likely value of the claim and the likely party and party costs to date as they would tax. It is not analogous to the offer considered in any of the cases, [sic] and Mr Doyle, counsel for the respondent, has been unable to cite a case where an all-up offer of settlement of claim, that is, one including costs, has been considered."
In addition, his Honour expressed alternative reasons, not relevant for present purposes, why the "Calderbank letter" in the circumstances of that case should not have the effect of depriving the plaintiff of the costs of the trial. Spender J's proposition that an offer expressed to be inclusive of costs should not be taken into account to displace the ordinary exercise of the discretion because it was uncertain, was followed in Hanave Pty Ltd v L F O T Pty Ltd (formerly Jagar Pty Ltd) & Ors [1998] FCA 1051. Spender J followed his own decision in Smallacombe in Susan Pender Jewellery Pty Ltd v Mirage (Operations) Pty Ltd & Anor [1997] ATPR 43612. At 43617, his Honour said:
"Having regard to the nature of the terms of the offer of compromise, which is analogous to the all-up offer in Smallacombe, and different from the kind of offer in Calderbank, and different from the kind of offer in Messiter v Hutchinson (1987) 4 ANZ Insurance Cases 60-802; (1987) 10 NSWLR 525, I do not think there are in this case special circumstances to justify the making of an order other than the usual order as to costs on a party and party basis. I do not think an offer that requires an assessment of party and party costs (as opposed to an offer to pay taxed or agreed costs) should be considered. In any event, there is no evidence in this case as to whether the offer of the applicant, viewed as a whole, was greater or less than the total of claim, interest and party and party costs at the time of the offer."
At the time of the receipt of the "letter of offer" the plaintiff was entitled to recover a reasonable sum for damages and his legal costs taxed upon a party and party basis. In order to determine whether or not the plaintiff ought to have accepted the offer in the light of the amount awarded by the judgment, it is necessary for the Court to be able to ascertain what portion of the offer was referable to damages. Similarly, in order to give proper consideration to the acceptance or rejection of the offer, the plaintiff needed to know what portion of it was referable to damages. Had the offer referred to a sum of money for damages and costs to be taxed, the plaintiff, and later the Court, would have known what portion of the offer was referable to damages.
Whether the offer, expressed to be inclusive of costs:
(a)was likely to have been more favourable than a judgment for damages and costs to be taxed on a party and party basis; and/or
(b)in the events that have happened, was more favourable than a judgment for damages and costs to be taxed on a party and party basis;
depends on the amount allowed for such costs on taxation. However, taxation is an event that had not occurred, and could not have occurred, before either the time the offer expired or the judgment was handed down. In these circumstances, it seems to me that it is unreasonable to take into account the "offer by letter" which is expressed to be inclusive of costs. No reason was suggested for not making a payment into Court or an offer of compromise, either of which courses would have removed the uncertainty inherent in an offer that is expressed to be inclusive of costs. Indeed, prior to the "offer by letter", the defendant did make an offer of compromise in accordance with the Rules of Court but which was less favourable than the judgment.
The sum offered, "$100,000 inclusive of costs" is more than twice the judgment sum and I have considered whether I could infer from the amount of the offer and the amount of the judgment sum that the offer was more favourable to the plaintiff than the judgment sum. However, I have concluded that without evidence of what solicitor's work was actually done for and on behalf of the plaintiff and what disbursements were incurred prior to the date of the expiry of the offer, I cannot draw such an inference. I am aware from the evidence that for some years prior to trial, the plaintiff has been living in Queensland. He has solicitors in Queensland and has consulted medical practitioners in that State. In all the circumstances, there is insufficient material to enable me to draw any inference with respect to the quantum of the plaintiff's costs taxed on a party and party basis as at the date of the expiry of the "offer by letter".
Accordingly, the order is that the defendant pay the plaintiff's taxed costs of the action.
128
9
0