Davies v Nilsen (Costs ruling) - [2016] VSC 572

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 06259

DIANNE DAVIES	Plaintiff
v
JUDITH NILSEN	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2016
DATE OF RULING:	26 September 2016
CASE MAY BE CITED AS:	Davies v Nilsen (Costs ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 572

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COSTS — Whether award of personal injury damages to the plaintiff and the costs awarded to the plaintiff should be set off against the costs awarded to the defendant — Amount of damages less than offer of compromise — Costs awarded in favour of the plaintiff and the defendant set off — Personal injury damages for pain and suffering not subject to an order for set-off — Relevant factors in the exercise of the discretion of the court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Ms M Pilipasidis	Slater + Gordon Lawyers
For the Defendant	Ms R Annesley QC with Ms B Meyers	Solicitor to the Transport Accident Commission

HIS HONOUR:

After a trial lasting 18 days in February and March 2016, on 19 September 2016 I gave judgment for Ms Davies in the sum of $125,000.[1] That sum was to compensate Ms Davies for her pain and suffering arising from a car accident in November 1995, caused by the defendant’s negligence. I found she had sustained an injury that had caused her pain and suffering ever since that accident and will go on causing her pain and suffering for the indefinite future. However, I rejected her case that the accident had caused other injuries that accounted for her inability to earn income from about that time onwards.
[1]Davies v Nilsen [2016] VSC 557.

The resulting award of damages did not exceed an offer of compromise of $500,000 made by the defendant on 11 December 2015. So, it is not disputed that Ms Davies should be paid her costs to 11 December 2015 (including costs of a successful application under s 23A of the Limitation of Actions Act) and the defendant should be paid her costs from and after 11 December 2015.

In short, the parties have agreed on all orders except in relation to a set-off sought by the defendant. The defendant wanted an order that:

The amount to be paid by the Defendant in accordance with Orders 1 and 2 hereof [the judgment award and the plaintiff’s costs order] is to be set off against the amount to be paid by the Plaintiff in accordance with Order 3 [the defendant’s costs order].

Ms Davies resisted that order. During argument, she announced that she would not resist an order that the two costs orders be set off against one another, but resisted any order that would involve setting off the defendant’s liability to pay damages to Ms Davies against her own liability to pay the defendant’s costs. Immediately following argument, I announced that I would make an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 572
Decision Date: 26 September 2016

CaseChat Overview and Summary

The case of Davies v Nilsen involved a personal injury claim where the plaintiff sought damages for injuries sustained. The matter concluded with an award of damages in favour of the plaintiff and an order for costs in their favour as well as in favour of the defendant. The dispute centred on whether the personal injury damages awarded to the plaintiff should be set off against the costs awarded to the defendant, and if so, to what extent. The matter was heard in the Supreme Court of New South Wales.

The court had to decide if the personal injury damages awarded to the plaintiff should be set off against the costs awarded to the defendant. It also needed to consider whether the costs awarded to the plaintiff and the defendant should be set off against each other. A further issue was whether the personal injury damages for pain and suffering were subject to an order for set-off. The court also needed to consider the relevant factors in exercising its discretion regarding set-off.

The court found that the personal injury damages awarded to the plaintiff were not subject to an order for set-off against the costs awarded to the defendant. It held that the costs awarded in favour of the plaintiff and the defendant should be set off against each other. The court considered various factors in exercising its discretion, including the amount of damages awarded, the terms of any offer of compromise, and the relative merits of the parties' cases. The court ultimately ordered that the costs awarded to the plaintiff and the defendant be set off against each other, but the personal injury damages awarded to the plaintiff were not subject to an order for set-off.

The court made an order that the costs awarded to the plaintiff and the defendant be set off against each other, but the personal injury damages awarded to the plaintiff were not subject to an order for set-off. The court also made an order for the costs of the proceeding.

Orders