Crockford v Allianz Insurance Ltd

[2005] QDC 215

DISTRICT COURT OF QUEENSLAND

CITATION:

Crockford v Allianz Insurance Ltd & Anor [2005] QDC 215

PARTIES:

CALLY CROCKFORD (plaintiff)

v  

GISELA ZIMMER (1st defendant)

ALLIANZ AUSTRALIA INSURANCE LTD (2^nd defendant)

FILE NO/S:

351/04

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

16 June 2005

DELIVERED AT:

Maroochydore

HEARING DATE:

23 May 2005

JUDGE:

K.S. Dodds, DCJ

ORDER:

I order the defendant pay the plaintiff’s costs of the proceeding on the standard basis up, until and including the 10 February 2005 and thereafter on the indemnity basis.

CATCHWORDS:

Rule 360 UCPR. Statement of loss and damage incomplete re: pre trial employment; wh. defendant showed another order for costs appropriate.

COUNSEL:

Mr P Feely for the plaintiff

Mr J A MacDougall for the defendant

SOLICITORS:

Schultz Toomey O’Brien solicitors for the plaintiff

McInnes Wilson for the defendant

1. On 27 May 2005, I gave judgment for the plaintiff against the defendants for $79536.65.00 inclusive of interest in a personal injury action, arising out of a motor vehicle collision.  

1. The motor vehicle collision occurred on the 15 October 2001. On the 29 May 2002, the second defendant admitted liability pursuant to section 41 of the Motor Accident Insurance Act 1994 (The MAI Act).

1. Division 5A of Part 4 of the MAI Act makes provision for a compulsory conference to be held before a claimant may bring an action before a court.  Section 51C (part of division 5A) makes provision for written final offers to be made at the compulsory conference or 14 days after the compulsory conference is dispensed with if that occurs.  Section 51 C (10) provides “the court must (where relevant) have regard to the mandatory final offers in making a decision about costs.”

1. On the 7 September 2004 a compulsory conference was held.  Mandatory final offers were exchanged.  The amount of damages awarded to the plaintiff in the judgment was less than the plaintiff’s mandatory final offer but more than the defendant’s mandatory final offer. 

1. On the 5 October 2004, the plaintiff filed her claim and statement of claim.  On the 16 November 2004, the defendant filed its notice of intention to defend and defence and the plaintiff tendered a request for trial date.  On 17 November 2004, the plaintiff provided her statement of loss and damage.

1. On 23 December 2004, the second defendant made a formal offer to settle pursuant to Chapter 9 of Part 5 Uniform Civil Procedure Rules (UCPR) in the amount of $42, 500.00. On the same date, the defendant forwarded the request for trial date. On 10 February 2005 the plaintiff made a formal offer to settle pursuant to chapter 9 part 5 of the UCPR for $61,500.00.

1. Rule 360 UCPR (part of Chapter 9 part 5) provides:

1. (a) “If - the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and          

(b) the court is satisfied that the plaintiff was, at all material times willing and able to carry out what was proposed in the offer;        the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances”.

1. The plaintiff’s pre and post injury employment history was relevant to the award of damages for loss of income earning capacity. Part of that history included some employment as a massage therapist at a resort at Noosa and employment for a couple of trips on a long-line fishing boat. The details regarding these were not appropriately disclosed in the statement of loss and damage. The information available to the defendant bearing on the UCPR offers, to that extent, was incomplete.

1. The difference between the UCPR offers by the defendant and the plaintiff was $19,000.00. That difference is greater than any effect on the award of damages the matters not appropriately disclosed in the plaintiff’s statement of loss and damage might have had.

1. Failure by a defendant to accept a plaintiff’s offer and a judgment for the plaintiff,  no less favourable than the offer exposes a defendant to a costs order, more onerous than the standard order.  The underlying purpose of the rules regarding offers to settle is to encourage settlement of proceedings.  Settlement of a proceeding by acceptance of an offer is more likely to occur if the opposing party has all the information which the pre-trial processes provided for are designed to expose.

1. I do not know at what point, prior to trial the information about the employment referred to above came to the defendant’s knowledge.  It was, however, not exposed in the statement of loss and damage provided by the plaintiff on the 17 November 2004. 

1. The plaintiff referred me to a decision of Moynihan SJA in Fail v Hutton and Suncorp Metway Insurance Ltd. That was a case when on the first working day after the trial had completed, the plaintiff served on the defendant an offer to settle pursuant to chapter 9, part 5 of the UCPR. In that case His Honour recognised there was no question of the insurer not having had a proper opportunity to consider the offer before it expired or being deprived of the opportunity to make an informed decision as to whether or not to accept the offer.

1. In the circumstances of this case I am of the view an order other than provided for in rule 360 (1) is appropriate.

1. I order the defendant pay the plaintiff’s costs of the proceeding on the standard basis up until and including the 10 February 2005 and thereafter on the indemnity basis.