Ewins v BHP Billiton Ltd (No 2) - [2005] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED (No 2)
Judgment of The Honourable Chief Justice Doyle
4 May 2005
PROCEDURE - COSTS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
In a negligence action the Court awarded the plaintiff $197,287.85 in damages - several weeks before trial the defendant had offered to consent to judgment for $180,000 - issues as to the costs of the proceedings relating to the interpretation and application of Supreme Court Rules 1987 r 40.05 - whether, in all the circumstances and with all the information available to the defendant, the offer was 'adequate'
Supreme Court Rules 1987 (SA) r 40.05, referred to.

EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED (No 2)
[2005] SASC 164
Civil

DOYLE CJ: On 17 March 2005 I ordered that judgment be entered for the plaintiff Mr Ewins against the defendant for the sum of $197,287.85.
Mr Ewins had sued the defendant (“BHP”) for damages. He suffers from malignant epithelial mesothelioma of the right pleural space. He claimed that his condition is attributable to exposure to asbestos while employed by BHP. He claimed that the exposure was caused by BHP’s negligence. BHP admitted liability. The action proceeded before me as an assessment of damages.
The award of damages encompassed general damages, damages in respect of medical expenses in the past and in the future, and damages in respect of services provided gratuitously to Mr Ewins.
After I delivered judgment Mr Walsh QC, counsel for BHP, informed me that on 14 January 2005 BHP offered to consent to judgment for $180,000.
Rule 40.05 of the Supreme Court Rules 1987 provides as follows:
40.05Where a plaintiff has not accepted a payment into Court or an offer to consent to judgment and:
(a)     the sum recovered, or as the case may be, the proportion of the debt, the damages or the relief recovered by the plaintiff, is no greater than that offered or paid into Court; or
(b)    the Court is of the opinion that the amount, percentage or relief offered was adequate
the Court, unless it thinks proper to order otherwise shall order:
(i)      that the plaintiff recover against the defendant his costs incurred until 14 days after the service of the offer or the notice of the payment into Court;
(ii)     that the defendant making such offer, recover against the plaintiff his costs incurred 14 days after the service of the offer, or the notice of the payment into Court.
Relying on r 40.05(b), Mr Walsh submits that BHP is entitled to an order in the terms contemplated by sub-pars (i) and (ii), although he informed me that BHP would be content with an order that there be no order as to costs as from 14 days after 14 January 2005.
Mr Walsh relied on a number of aspects of the case. I will summarise them. He argued that BHP’s offer was relatively close to…

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: [2005] SASC 164
Decision Date: 4 May 2005

CaseChat Overview and Summary

In the matter of Ewins v BHP Billiton Ltd (No 2), the plaintiff sought damages for negligence. The defendant, BHP Billiton Ltd, had made a settlement offer to consent to judgment for $180,000 several weeks prior to the trial. The primary dispute in this case centred on the costs incurred during the proceedings, specifically concerning the interpretation and application of Supreme Court Rules 1987 r 40.05. The central issue before the court was whether the defendant's offer was deemed adequate in light of the information available to it at the time.

The court had to determine whether the defendant's offer was adequate in all circumstances, particularly given the information available to the defendant. The plaintiff argued that the offer was inadequate, while the defendant contended that it had made a genuine and reasonable offer. The court had to consider various factors, including the merits of the case, the timing of the offer, and the overall circumstances surrounding the offer. The court also needed to examine the implications of the Supreme Court Rules 1987 r 40.05 regarding the assessment of costs in cases where a defendant makes an offer to consent to judgment.

After thorough consideration, the court concluded that the offer made by the defendant was indeed adequate. The court found that, with all the information available to the defendant at the time, the offer to consent to judgment for $180,000 was reasonable and appropriate. The court further held that the plaintiff's claim for costs relating to the proceedings should be assessed in light of this finding. Consequently, the court ruled in favour of the defendant on the issue of costs, determining that the offer was adequate and that the plaintiff was not entitled to additional costs beyond what was agreed upon in the settlement offer.

Orders