Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary (No 2)

The Health Care Corporation Pty Ltd, trading as Wollongong Private Hospital, appealed a decision concerning liability and damages awarded to Mr Cleary. The appeal was heard by Mitchelmore JA, Stern JA, and Harrison CJ at CL.

The primary legal issues before the Court were whether the appeal on liability should be allowed, and if not, how the costs of the appeal should be apportioned, particularly in light of a reduction in damages awarded to the respondent on appeal and the existence of offers of compromise.

The Court found that while the appeal on liability was unsuccessful, the reduction in damages awarded to the respondent warranted an apportionment of costs. The Court reasoned that the respondent's success on liability was significantly diminished by the reduction in damages, making it just and equitable to depart from the general rule that costs follow the event. The Court also considered the offers of compromise made by the appellant, finding that the respondent's rejection of these offers was not unreasonable in the circumstances, but this did not outweigh the impact of the reduced damages on the overall outcome of the appeal.

Consequently, the Court ordered that the appellant pay 75% of the respondent’s costs of the appeal, with the order taking effect from 11 August 2023.