| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FAITH MARY GODIN (FORMERLY BARBARA ANN ADLER) -v- JESSE THOMAS GODIN (FORMERLY CHRISTOPHER ADLER) [2003] WADC 27 CORAM : DEANE DCJ HEARD : 11 FEBRUARY 2003 DELIVERED : 14 FEBRUARY 2003 FILE NO/S : CIV 2036 of 2002 BETWEEN : FAITH MARY GODIN (FORMERLY BARBARA ANN ADLER) Plaintiff
AND
JESSE THOMAS GODIN (FORMERLY CHRISTOPHER ADLER)
Defendant
Catchwords: Practice and procedure - Offer to compromise claim pursuant to O 24A Rules of the Supreme Court - Whether offer void for uncertainty with respect to special damages component - Impact on costs orders following trial where defendant found liable to plaintiff
Legislation: Nil
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Result:
Defendant to pay costs of the plaintiff up to and including date of offer to compromise claim only Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Hoffmans
Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEANE DCJ: In this action the plaintiff claimed damages for injuries allegedly arising out of a motor vehicle accident in which she was involved on 20 March 1999. Both liability and quantum were in issue. The trial was heard in November 2002 and a decision in the matter was delivered on 31 January 2003. The defendant was found liable in negligence to the plaintiff and damages for the plaintiff were assessed in a total sum of $5,800, being $5,000 general damages and $800 in respect of past gratuitous services. No award was made under any of the other heads of damages which were claimed by the plaintiff in the action.
2 The application presently before the Court arises as a result of the parties being granted liberty to apply as to the final form of the orders and in particular the orders as to costs. It is common ground that the defendant made an offer to compromise the plaintiff's claim on 30 April 2002. That offer was in the form required by O 24A of the Rules of the Supreme Court and stated that the defendant was prepared to compromise the plaintiff's claim in the action for the sum of $80,000 damages, plus reasonable special damages. Counsel for the plaintiff now argues that notwithstanding the sum of offer to compromise was considerably greater than the damages ultimately awarded to the plaintiff, nonetheless the plaintiff should have the entire costs including those accrued after 30 April 2002 because the offer was incapable of acceptance and therefore void. It is submitted that the offer was uncertain in that it is not at all clear what constitutes "reasonable" special damages and hypothetically if the offer was accepted by the plaintiff in that form there is no clear indication as to what amount could be executed for by the plaintiff. 3 In support of this argument counsel for the plaintiff referred to Seaman, Civil Procedure in Western Australia, at 6203 being part of the commentary relevant to O 24A. Relevantly the commentary in part notes: "Whatever that is held to mean, there will be need for rigorous precision in the drafting of the offer. If it is uncertain in its terms. The party who made it is unlikely to obtain judgment under r 3(9) in the event of its acceptance (see [24A.3.3]), or any benefit from it on the question of costs dealing with third party proceedings by the defendant against two of the plaintiffs. An offer of compromise ought not to leave the person to whom it is addressed in any reasonable doubt: see Duncan v Weller Pty Ltd v Mendelson [1989] VR 386 at 401." 4 It is submitted that not only were the terms of the offer to compromise uncertain and therefore void but this was a case in which the
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plaintiff claimed that she had undergone significant treatment relevant to her alleged injuries and so there were considerable issues arising out of the question as to what constituted reasonable special damages in the circumstances. 5 When the offer was received by the solicitors for the plaintiff they acknowledged its receipt in a letter to the defendant's solicitors of 2 May 2002 stating: "We acknowledge receipt from you of your letter of 30 April 2002 and enclosed O 24A offer." From that it will be seen that the offer was neither accepted nor rejected and it appears that no comment or inquiry was made or issue taken with respect to the form of the offer or in relation to the question of special damages. 6 During the course of the trial it became apparent that the Insurance Commission of Western Australia had paid on a without prejudice basis $8,529.26 by way of special damages on behalf of the plaintiff and further it was made clear to the Court by counsel for the defendant at that time that if there were to be a finding against the defendant on the issue of liability that amount of money would not be the subject of any recovery action against the plaintiff. Medical expenses associated with treatment that the Court found was reasonable and appropriate for the plaintiff to undergo have all been paid by the Insurance Commission. 7 Quantum of the amount paid was clear and not in dispute as distinct for the liability to pay that amount. This was a fact well known to the plaintiff in the sense that it was common ground in correspondence exchanged between the parties' solicitors. The sum of $6,661.80 was also in dispute, being an amount due and owing to Medicare and the Health Insurance Commission for medical expenses claimed by the plaintiff. Relevant to that latter sum, documentation was tendered at trial indicating that the plaintiff had sought and obtained treatment from a large number and wide variety of medical practitioners and health professionals, many of whom were not called at trial and whose evidence would in any event have not been particularly relevant given that they provided treatment with respect to hormonal therapy, family therapy and other matters which ultimately would not be considered necessary consultations. Nonetheless the plaintiff at trial admitted she had signed a statutory declaration, being part of the tendered documentation, claiming that all of the items forming part of the relevant notice with respect to past benefits related directly to treatment she required for injuries arising out of her involvement in the motor vehicle accident.
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8 It is therefore clear in my view that the plaintiff, or the plaintiff through her legal advisers, could really have been in little doubt as to what constituted special damages and in effect the amount of special damages in issue.
9 This is not a matter where adopting the highly technical approach and interpretation as urged by counsel for the plaintiff would in my view result in justice being done. It is correct that the plaintiff did succeed on the issue of liability, but the damages awarded in the end were vastly less than the sum offered to the plaintiff by the defendant in order to compromise the claim. This in my opinion certainly has an effect on the degree to which it could realistically be said the plaintiff was successful in her claim. 10 A formal order has previously been made that there be judgment for the plaintiff against the defendant in the sum of $5,800. In relation to the question of costs there will be an order that the defendant do pay the plaintiff's costs of the action up to and including 30 April 2002 and that thereafter the plaintiff pay the defendant's costs of the action. |