George v St Mary's Anglican Girls' School Inc
[2000] WADC 163
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GEORGE -v- ST MARY'S ANGLICAN GIRLS' SCHOOL INC [2000] WADC 163
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 31 MAY 2000
DELIVERED : 28 JUNE 2000
FILE NO/S: CIV 2243 of 1999
BETWEEN: BETTE GEORGE
Plaintiff
AND
ST MARY'S ANGLICAN GIRLS' SCHOOL INC
Defendant
Catchwords:
Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation of costs - Claim for disbursement.
Legislation:
Nil
Result:
Review confirms determination at taxation.
Representation:
Counsel:
Plaintiff: Mr S Forbes
Defendant: Mr M Williams
Solicitors:
Plaintiff: James McManus & Associates
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
DEPUTY REGISTRAR HARMAN: The plaintiff has filed an objection to the determination made at taxation with respect to the disbursement for an engineer's report contained in her bill of costs. The claim appears in the bill as an account from Forensic Engineering in the amount of $1,500. At taxation that claim was disallowed.
The objection is to the disallowance of the item and the grounds of that objection are as follows:
"The retention of Forensic Engineering Consultants and the preparation of their report dated 2nd February 1999 formed the basis upon which the Plaintiff's claim was formulated and was done in accordance with the provisions relating to expert evidence and should in the circumstances of this case have been allowed."
In the action the plaintiff claims damages for personal injuries as a consequence of stepping into a concealed hole in a bitumen covered driveway at the defendant's premises. The particulars provided of the negligence of the defendant go to the defendant's knowledge of the existence of the hole, that it allowed the hole to become concealed, a failure to repair the bitumen and a failure to direct pedestrians away from the hole or otherwise cordon off the hole.
The scope for recovery of the plaintiff's costs is determined by a consideration of whether the services which generated the costs were necessary and proper.
It is my understanding that the objection covers two grounds. The first that the report assisted the plaintiff in the process of pleading the claim, the second in the form of expert evidence. As to each, I accept that the plaintiff may have formulated the claim on the report, however of itself that fact is of no moment. The parties are free to formulate their pleadings and seek to establish the relevant allegations as they choose.
Properly considered the report is in two parts. The first being as to the dimensions of the hole, the second as to the steps that the defendant may have taken to isolate the hole. As to the first, in my opinion the process of measurement would not call for the expertise of an engineer. A reading of the report confirms my opinion. As to the second, in my opinion the articulation of the options open to an occupier would not call for the expertise of an engineer. Again, a reading of the report confirms that opinion.
It is of no consequence that I may reflect upon the prospect that someone other than an engineer providing a similar service to the plaintiff may have raised a charge with respect to that service. By way of illustration, a professional photographer could have taken the photographs which form part of the report. It may be that such a charge may have been recovered. I am not in a position to judge how much a professional photographer would have charged in the event that one had been engaged. That was not the case put by the plaintiff at taxation. It is inappropriate in my view to either manufacture a case for the plaintiff or hazard a guess at what fee a professional photographer may have charged.
On the relevant test of reasonableness the plaintiff's case fails. The defendant is entitled to the costs of review.
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