Craig v Transport Accident Commission (Ruling)
[2013] VCC 1273
•2 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00624
| LEANNE CRAIG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2013 | |
DATE OF RULING: | 2 October 2013 | |
CASE MAY BE CITED AS: | Craig v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1273 | |
RULING AS TO COSTS
---
Subject: COSTS
Legislation Cited: Transport Accident Act 1986
Ruling: Defendant pay the plaintiff’s costs (including any reserved costs) of the proceeding, up to and including 1 August 2013, such costs to be assessed by the Costs Court in default of agreement. Plaintiff to pay the costs of the defendant thereafter.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr G Worth | Slater & Gordon Ltd |
| For the Defendant | Mr J D Philbrick SC with Ms S Gladman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff sustained injuries in two transport accidents occurring on 13 December 2004 and 8 March 2007.
2 By Originating Motion dated 13 February 2012, the plaintiff sought leave, pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring common law proceedings for damages in respect of injuries suffered in both of those transport accidents.
3 The plaintiff filed a document entitled ‘Particulars of Injury’ relating to both transport accidents. In each, she identified injuries that she claimed were “serious injuries” (as that term is defined in s93(17) of the Act) suffered in both of the transport accidents as being injuries to her spine (neck and back) and a mental or behavioural disturbance or disorder.
4 On 25 July 2013, the parties participated in a pre-hearing conference.
5 On 29 July 2013, the defendant granted to the plaintiff a Serious Injury Certificate pursuant to s93(4)(c) of the Act, but only in respect of injuries suffered in the second transport accident. The plaintiff’s solicitors were notified of that Certificate on that date.
6 The plaintiff determined to pursue her claim in respect of injuries suffered in the first transport accident. The matter was heard before me on 14 and 15 August 2013. In accordance with Reasons for Judgment delivered on 30 August 2013,[1] I found that the plaintiff had not suffered a serious injury as a consequence of the first transport accident. Accordingly, I indicated that I would make orders dismissing her application. I indicated that I would hear the parties as to any consequential costs orders sought.
[1][2013] VCC 1038
7 The plaintiff seeks an order that the defendant pay her costs of the proceeding at least up until the date that the Serious Injury Certificate was granted in respect of the second transport accident. Further, it submits that the defendant should pay her costs of the first day of the hearing. She submits that because Senior and Junior Counsel had been briefed to appear on her behalf prior to the granting of the Certificate relating to the second transport accident, her costs should include the costs of the first day of the hearing, including costs of counsel appearing for her on that date.
8 The defendant concedes that it should be liable to pay the plaintiff’s costs of the application up to and including 29 July 2013, but submits that the plaintiff should pay its costs of the application as it related to the first transport accident on and from 30 July 2013.
9 I consider that there was, at all times, an overlap in relation to legal work performed in preparation of the applications in respect of the two transport accidents up until 29 July 2013. Any assessment of consequences of injuries suffered in one of the transport accidents would have involved an assessments of injuries suffered in the other.
10 I consider that, in determining matters appropriate for certification, it is more convenient for me to make such determination, rather than refer such matters to the Costs Court. I, having heard the application and all of the evidence, consider that I am in a better position to reach a decision on matters to be certified than the Costs Court would be.
11 This was a complex matter before 29 July 2013. There was always the prospect that the defendant would argue that neither transport accident, when looked at on its own, had resulted in a serious injury. Difficult issues concerned the extent to which the plaintiff’s injuries had been caused or contributed by the first transport and the extent to which her injuries had been aggravated by the second transport accident. There was reasonable apprehension that, if the plaintiff succeeded in respect of injuries suffered in only one of the transport accidents, that the defendant would, in later common law proceedings, attribute the plaintiff’s symptoms to the other.
12 I consider that a reasonably prudent solicitor would have briefed Senior and Junior Counsel to appear for the plaintiff to ensure that her case was properly presented.
13 Accepting that Senior and Junior Counsel were briefed to appear on behalf of the plaintiff prior to 29 July 2013, I consider that their respective brief fees for one day should be paid by the defendant. It was not unreasonable, and indeed it was prudent, for the plaintiff’s solicitors to have briefed counsel a little over 14 days prior to the hearing date. Those brief fees would have been payable to counsel even if the plaintiff had elected not to proceed with the balance of the application after 29 July 2013.
14 The plaintiff sought certification for Senior Counsel’s fee on brief for one day at $5,500 and for two hours’ special conferences at $550 per hour. She sought certification for Junior Counsel’s fee on brief for one day at $2,750 and for two hours’ special conferences at $275 per hour.
15 The defendant submitted that these matters should all be referred to the Costs Court. For the reasons earlier expressed, I consider it more convenient that I attend to these matters at this time rather than refer it to the Costs Court. The defendant made no other submissions regarding the level of Counsel’s fees or fees relating to conferences.
16 Since the matter was last before the Court, the plaintiff’s solicitors have advised me that the conferences conducted by Senior and Junior Counsel did not occur until after 30 July 2013. That is, they only occurred after the Certificate relating to injuries sustained in the second transport accident had been issued.
17 Accordingly, I consider that it is just to order the defendant to pay the plaintiff’s costs incurred up to the date she was advised the certificate had been granted together with an additional two days to enable her to consider whether or not to continue with the balance of her claim. Such order should include Counsels’ fees on brief in respect of one day. It follows that the defendant should pay the plaintiff’s costs up to and including 1 August 2013 and that the plaintiff should pay the defendant’s costs thereafter.
18 The defendant did not seek any certificates in respect of its costs on and after 2 August 2013.
19 Accordingly, I shall order as follows:
(a) That the defendant pay the plaintiff’s costs of the proceeding (including any reserved costs) up to and including 1 August 2013, such costs to be assessed by the Costs Court in default of agreement;
(b) That the plaintiff’s costs payable by the defendant include Counsels’ fees for one day (as certified below);
(c) I certify that this was a proceeding in which it was appropriate to brief both Senior and Junior Counsel;
(d) I certify for Senior Counsel’s fee on brief for one day at $5,500;
(e) I certify for Junior Counsel’s fee on brief for one day at $2,750;
(f) That the plaintiff pay the defendant’s costs of the proceeding incurred on and after 2 August 2013, to be assessed by the Costs Court in default of agreement;
(g) That the costs payable by the plaintiff to the defendant pursuant to paragraph (f) hereof be offset against the costs payable by the defendant to the plaintiff pursuant to paragraph (a) hereof;
(h) That the proceeding be otherwise dismissed.
0
0
0