Ibraimov v Dignon - [2015] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
IBRAIMOV & ANOR v DIGNON & ANOR
[2015] SADC 152
Judgment of His Honour Judge Slattery
6 November 2015
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - DAMAGES RECOVERED SMALL - ACTION WHICH SHOULD HAVE BEEN BROUGHT IN INFERIOR COURT
Two actions for damages for personal injuries arising from two motor vehicle accidents that were commenced on 27 June 2013. On 1 July 2013 the Statutes Amendments (Courts Efficiency Reforms) Act 2012 Act came into operation. Both actions settled at mediation in August 2015 for the sum of $35,000 in total and the parties required the Court to adjudicate the question of costs.
The defendants conceded that the plaintiffs were entitled to an order for costs but contended that the appropriate measure was the Magistrates Court scale. The plaintiffs contended for an order of the costs of the actions on the scale applicable to District Court proceedings.
Whether the amendments to the costs scheme under rule 263(2) of the District Court (Civil) Rules 2006 and section 42(2) of the District Court Act 1991 brought about by Statutes Amendments (Courts Efficiency Reforms) Act 2012 Act operated only prospectively from 1 July 2013 or whether there was any retrospective operation of those changes.
Held:
1. The Court retains an unfettered discretion as to costs.
2. In the exercise of the Courts discretion the appropriate orders as to costs are as follows:
That the plaintiffs have their costs of the actions on the District Court scale until 31 December 2013;
That the plaintiffs have the costs of the actions on the Magistrates Court scale from 1 January 2014.
The defendants are entitled to the costs of the argument on costs on the District Court scale.
District Court Act 1991 (SA) s 42; District Court Rules 2006 (SA) r 263; Statutes Amendments (Courts Efficiency Reforms Act 2012 (SA) ss 24, 24, referred to.
Anwar v Mondello Farms Pty Ptd (No 2) [2014] SADC 155; Maxwell v Murphy (1957) 96 CLR 261; Commonwealth v Vance (2005) 158 ACTR 47; Galvin v Forests Commission of Victoria [1939] VLR 284; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413; A Esposito by her personal representative, S Esposito and S Esposito v Nejad and Wood; S Esposito v Wood [2014] SADC 39; Cretazzo v Lombardi (1975) 13 SASR 4; Stephens v Chandler (1988) 46 SASR 541; Hall v Dixon (No 2) (1988) 143 LSJS 318, considered.

IBRAIMOV & ANOR v DIGNON & ANOR
[2015] SADC 152
JUDGE SLATTERY

The issue for determination in this application is whether the plaintiffs are entitled to recover costs under the District Court scale, the Magistrates Court scale or on some other scale. There are two actions under consideration here: action number 1649 of 2013 and action, number 1821 of 2013. In the earlier action, the claim was initially brought against the defendant Mr Darryle Dignon by the plaintiffs. In the second action, the claim was brought against Mr Dignon as second defendant and Mr Tien Vi as first defendant by the same plaintiffs. Mr Tien Vi was then joined to the first action so that all the claims could proceed together.
In each action the claim of the first plaintiff was in respect of damages allegedly incurred following two motor vehicle accidents. The accident involving the defendant Dignon is alleged to have occurred on 7 May 2012; the accident involving the defendant Tien Vi is alleged to have occurred on 24 January 2012. The claims of the second plaintiff were for loss of consortium of the first plaintiff.
Any decision about the level of costs payable to the plaintiff is governed by section 42 of the District Court Act 1991 (SA) and rule 263 of the District Court Rules 2006 (SA). The plaintiffs submit that in respect of two actions that were settled collectively for $35,000, on a proper construction of section 42 of the District Court Act and rule 263(2) of the Rules, the costs entitlement of the plaintiffs is to be determined when the actions were brought and not on when the damages are recovered. The plaintiffs contend that they are entitled to costs on the District Court scale.
In contrast, the defendants submit that, having conceded at a mediation that costs are payable to the plaintiffs, the relevant scale of costs is the Magistrates Court scale.
The first collision
On 24 January 2012 the first plaintiff Nezvat Ibraimov was the driver of a motor vehicle. The second plaintiff Feime Ibraimov was the front seat passenger in that vehicle that was at the time stationary on Hamilton Road Athol Park. The defendant, Tien Vi was the driver of another vehicle that was reversing out of a driveway onto Hamilton Road. As he did so, Mr Vi’s vehicle collided with Mr Ibraimov’s stationary vehicle. That is referred to in the pleadings as the “first collision”.[1] It is conceded that this collision was caused as a result of the negligence of Mr Vi.
[1] District Court action number DCCIV-13-1821.
The second collision
On or about 7 May 2012, Nezvat Ibraimov was driving a motor vehicle in a north easterly direction along Woodville Road, Woodville. At or about the same time and place, the defendant Mr Dignon was also travelling in a north easterly direction along Woodville Road. Whilst travelling along Woodville Road, Mr Dignon’s vehicle collided with the rear of Mr Ibraimov’s stationary vehicle. This is referred to as the “second collision”.[2] It is conceded that the second collision was caused as a result of the negligence of Mr Dignon.
[2] District Court action number DCCIV-13-1649.
As a result of the first and second collisions, the first plaintiff allegedly sustained personal injuries, loss and damage. Actions were commenced in the District Court of South Australia on 27 June 2013. The actions were commenced in the name of both plaintiffs and the action sought damages for personal injuries arising out of the motor vehicle accidents and for solatium style damages for the second plaintiff.
By an amendment to the District Court rules 263(2), gazetted on 6 June 2013 which came into operation on 1 July 2013, the amount needed to be obtained in a motor vehicle accident claim to avoid the operation of section 42(2) of the District Court Act was increased from $30,000 to $50,000. In order to be entitled to make a claim for costs in a personal injuries action in the District Court it became necessary to recover $50,000 as damages at a minimum, subject to the discretion of the Court.
The defendants filed their Defences on 28 October 2013 (FDN7). The defendants admitted negligence but alleged that the impacts were so minor as not to cause any injuries. The defendants alleged that if the first plaintiff was suffering any problems, those problems related to pre-existing back and spinal injuries and were not therefore connected with the subject accidents.
In its pleadings, the first plaintiff discloses that at the time of the accidents, he was over 65 years of age and despite the content of the statements of claim he was not in a position to pursue a claim for past or future economic loss. His claims were for pain and suffering, loss of amenities of life, for treatment, for travel costs and paid voluntary services.
On 17 June 2014 the actions were listed for trial on 19 October 2015.
Following Judge management, the action was referred to a mediation before his Honour Judge Soulio of this Court. That mediation was held on 13 August 2015. At the mediation, the parties agreed the total quantum of the first and second plaintiffs’ damages claims following both accidents was in the amount of $33,500 (first plaintiff) and $1,500 (second plaintiff) inclusive of interest, special damages and statutory charges. The defendants agreed to pay the plaintiffs’ costs and disbursements. The parties were then unable to agree on which scale of costs should apply.
The settlement agreement between the parties reached at the mediation has been implemented however, there is an ongoing disagreement between the parties as to the scale of costs. The defendants have agreed that they should pay costs on the Magistrates Court scale but the plaintiffs contend that costs should be paid on the Supreme Court scale.
Although it is open to the Court to make an Order that no costs should be awarded (if the Court is so satisfied) both the defendants have conceded that they have agreed to pay the level of cost which will be fixed by the Court. They contend for the Magistrates Court scale and do not contend that no costs should be awarded to the plaintiffs. The willingness of the defendants to pay the plaintiffs’ costs is subject to a claim of set-off for interlocutory costs orders in favour of the defendants but that is a matter for agreement or for the Taxing Master.
At all material times, section 42(2) of the District Court Act reads as follows:-
42—Costs
(1) Subject to subsection (2) and the rules, costs in any proceedings in the Civil Division will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
(2) If—
(a) an action for the recovery of damages or any other monetary sum is brought in the Court; and
(b) the action might have been brought in the Magistrates Court; and
(c) the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph,
no order for costs will be made in favour of the plaintiff unless the Court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of action.
As at the date of commencement of these proceedings rule 263(2)(f) of the District Court Rules read as follows:-
263—Court's discretion as to costs
(2) The general rule is, however, subject to specific rules to the contrary1 and also to the following exceptions (which apply subject to the Court's order to the contrary)—
…
(f) in an action founded on a motor vehicle accident claim, general costs of action are not to be awarded in favour of the successful plaintiff unless the damages exceed $30,000;
Under the Amendment gazetted on 6 June 2013, the relevant amount for actions founded on motor accident claims in respect of costs (the no cost threshold) was changed from $30,000 to $50,000 and was in operation from 1 July 2013.
There was no transitional provision within the Rules to cover situations such as actions commenced prior 1 July 2013. In Anwar v Mondello Farms Pty Ltd (No. 2)[3] his Honour Judge Cuthbertson of this Court had cause to consider the operation of Rule 263(2)(h) (the current manifestation of the former rule 263(2)(f)). His Honour went on to consider District Court (Civil) Rules 2006 (amendment 23) which effected the relevant amendments to Rule 263 and stated that they were to come into effect immediately after sections 23 and 24 of the Statutes Amendments (Courts Efficiency Reforms) Act 2012 are brought into operation. Those sections came into operation on 1 July 2013. His Honour held at paragraphs [7] et seq. as follows:-
[7] Section 27 of the Statutes Amendment (Courts Efficiency Reforms) Act states that the amendments made by s23 and 24 do not apply to actions commenced before the commencement date of those sections (namely 1 July 2013) and that such actions commenced before the commencement date continue as if the Statutes Amendment (Courts Efficiency Reforms) Act had not been enacted.
[8] The amendment to Rule 263(2)(h) therefore only applies to actions commenced after 1 July 2013 and not this action which was commenced in 2008[4] and completed in virtually all respects before 1 July 2013.
[9] Accordingly, in my view, Rule 263(2)(h) does not apply in its amended form and the relevant amount is $15000, lower than the award achieved by the plaintiff.
[3] [2014] SADC 155.
[4] Statement of Claim filed 4 April 2008.
His Honour then went on to consider the operation of section 42 of the District Court Act in that context.
The plaintiffs’ contentions were that whilst the amendments in relation to the operation of section 42 of the District Court Act and rule 263(2) of the District Court Rules 2006 were gazetted on 6 June 2013 (and therefore were publicly available) they only came into effect on 1 July 2013 whereby the threshold was raised from $30,000 to $50,000 in relation to motor vehicle accident claims.
Counsel for the plaintiffs submitted that section 27 of the Statutes Amendment (Court Efficiency Reforms) Act states that amendments made by sections 23 and 24 (of that Act) do not apply to actions initiated before the commencement date of 1 July 2013. Because this action was initiated before 1 July 2013, the action should be assessed as to costs as if the Act has not been enacted. Costs should be awarded on the District Court scale because at the time the action was commenced, the relevant minimum in relation to motor vehicle accidents was $30,000, an amount which the settlement judgment exceeds in this case. The plaintiffs contend that, by parity of reasoning, they should be entitled to claim costs on the Supreme Court scale based upon the settlement amount.
The plaintiffs also contend that based upon the affidavit material filed by them,[5] when the plaintiffs’ claim was formulated on 11 February 2013, that formulated claim was at an amount which was in excess of the Magistrates Court threshold. It followed that, the formulation of the plaintiffs’ claim as at 1 July 2013 was still in excess of the jurisdictional limits of the Magistrates Court even having regard to the changes in jurisdictional limit and there was no basis for the action to be remitted to the Magistrates Court for that reason alone. Based upon that argument, the plaintiffs further contended that accepting that position, there was then a reasonable basis for the plaintiffs to believe that their damages may be in excess of the no costs threshold (as amended). The plaintiffs further argued that there were some complexities within the facts and the issues of causation due to allegations made by the defendants that there was only minor impact which could not have caused any injury and especially injuries to the body parts as alleged. The plaintiffs contended that this dispute warranted the action being brought in the District Court.
[5] Affidavits of Julia Palios dated 31 August 2015 (FDN28) and 7 September 2015 (FDN32).
The defendants’ contentions were that the amendments to rule 263(2) increased the amount needed to be obtained in a motor vehicle accident claim in order to avoid the operation of section 42(2) of the District Court Act. Those amendments raised the no costs threshold from the amount of $30,000 to the amount of $50,000 as of 1 July 2013.
The defendants also contended that section 24 of the same Reform Act also raised the Magistrates Court jurisdictional limit for motor vehicle accidents from $80,000 to $100,000 however this amendment only came into effect after these proceedings had been commenced. The defendants contended that section 42 of the District Court Act as at 1 July 2013 and following should apply because the plaintiffs had recovered less than the amount fixed by the Rule as amended and because the settlement amount of $35,000 falls within the jurisdictional limit of the Magistrates Court both at the time the action was issued and at present.
Part of the defendants’ contention relied upon a retrospective operation being given to section 42(2) of the Act and consequently to the operation of rule 263(2) of the Rules. The defendants conceded that generally, statutes are not to be given retrospective operation insofar as they effect substantive rights. The defendants contended that this rule does not apply in relation to statutes that deal only with matters of procedure. The defendants relied upon the decision of the High Court in Maxwell v Murphy[6] to the effect that there is retrospective operation in the event that procedure is changed during the course of an action as it proceeds through the Courts and therefore the new procedure must apply to the action. The defendants also relied upon the decision in Commonwealth v Vance[7] that a party commencing a proceeding obtains no accrued rights to have the matter determined pursuant to the Rules of Court as they stood at the date of the originating application. The defendants contended that costs are procedural. They rely upon the discussion by the learned authors DC Pearce and RS Geddes in Statutory Interpretation in Australia.[8]
[6] (1957) 96 CLR 261.
[7] (2005) 158 ACTR 47-49.
[8] 7^th edition at p336 [10.21].
In Galvin v Forests Commission of Victoria,[9] the Court held that the power to award costs was granted to the Workers Compensation Board during the course of the case. The power to grant costs was held to be procedural and therefore costs could be awarded in a case partly heard before the law was amended. Similarly, in Jackman v Dandenong Sewerage Authority (No. 2),[10] the Court held that the removal of the discretion of whether or not to award costs was held to be procedural and therefore was applicable to a part heard case notwithstanding the position at the commencement of that case.
[9] [1939] VLR 284.
[10] (1967) 20 LGRA 413.
The defendants also submitted that in the absence of transitional provision by the rule makers of the Court, a strong inference arises that the rule makers intended that the interpretive presumption would apply. This meant that the section and the rule subsequent to 1 July 2013 should be applied and that, prima facie, the plaintiffs should be denied costs except on the Magistrates Court scale. It was contended that this submission was in accordance with the policy of the section which was to encourage plaintiffs to use the lowest Court in which their actions could properly be entertained so as to minimize legal costs. The defendants also relied upon the decision of the Full Court in Stephens v Chandler[11] and in particular the judgment of King CJ at page 453. The defendants made a point of distinction that the policy decision announced in the Stephens decision related more to the question of a flood of cases descending upon the District Court as a result of a jurisdiction change rather than the interpretation of the relevant rules and sections. The decision was based upon pragmatism.
[11] (1988) 46 SASR 541.
I have earlier set out the history of the amendment of the District Court Rules. At the same time, the Magistrates Court jurisdiction was amended by the same Act. The jurisdiction of the Magistrates Court was uniformly lifted to claims up to $100,000. The proceedings in this action were commenced immediately prior to the time of the commencement of the operation of the changes but subsequent to the gazettal on 6 June 2012, of the relevant changes. The defendants submitted that the intention of the Legislature was clear and therefore the Court should not adopt any approach contrary to what the defendants contended was such an intention.
Similar to the position reached by Judge Soulio in Esposito[12] I have been unable to ascertain any legislative requirement for a party to remit an action to a lower Court consequent upon a change in the jurisdictional limit of either of those Courts or a change in the threshold amount in relation to the awarding of costs subsequent to the institution of those proceedings. A proposition was put to Judge Soulio that the only relevant time for consideration of the operation of the various legislation was at the time of the commencement of the proceedings however his Honour did not see it as necessary to determine the correctness of that argument in the Esposito matter. However, in Esposito, at the time that the amending provisions came into force, the matter had been allocated a trial date albeit after the date of the commencement of new legislative provisions and rules. His Honour found that it was not reasonable to expect the plaintiff to lose his place in a list of cases awaiting trial in the District Court and then go to the end of the line so to speak, of the Magistrates Court trial list. His Honour was not informed of what was the trial waiting time in the Magistrates Court.
[12] A Esposito by her personal representative, S Esposito and S Esposito v Nejad and Wood; S Esposito v Wood [2014] SADC 39.

His Honour made those comments after considering the decision of Hogarth J in Cretazzo v Lombardi[13] where Hogarth J said as follows:
I think that generally speaking, when a case was not already set down for hearing, when the amending Act came into force, it is reasonable to expect a plaintiff to have reconsidered his position before proceeding further in this court. In an appropriate case, it is to be expected of him that instead of entering his action for trial he would apply to this court under s 40 of the Local and District Criminal Courts Act 1926-1974 for an order removing the action for hearing in a local court, having amended his pleadings where necessary, to limit his claim to the jurisdiction of that court. If such a plaintiff fails to do this and is nevertheless awarded no more than $10,000 in this court, he must face the prospect of not recovering his costs.

Hogarth J went on to say:
Where an action had already been entered for trial in this Court before the amending Act came into force, I think that different considerations may well apply. In such a case it may not be reasonable to expect a plaintiff to lose his place in the list of cases awaiting trial in this Court and to take his place at the end of the list of cases awaiting trial in a Local Court.
[13] (1975) 13 SASR 4 at page 6.

In Esposito, Judge Soulio determined the matter in the exercise of his Honour’s discretion. In this matter, both parties properly concede that I have a general discretion in relation to costs irrespective of any view that I may form about the merits or otherwise of either of the parties’ arguments on the question of their entitlements to costs. I have an overriding discretion in any event.
On the authorities referred to by the defendants there is some attraction in the argument that I should allow costs to the plaintiff but only on the basis of the Magistrates Court scale. However, there are some factors that militate against the formation of that view. The first is the wording of the amendment Act that was considered by Judge Cuthbertson in Anwar at paragraphs [4]-[6]. The second is that I accept that Mr Warren, of Counsel, provided a range of damages in his assessment of the case of the plaintiffs at the time of the commencement of proceedings. I also accept that the assessment of damages made by Counsel justified the commencement of the proceedings in the District Court. Implicit in that acceptance is that Counsel fully had regard to the instructions that he had received in relation to the injuries, the medical evidence available and, generally, his assessment of the prospects of the plaintiffs’ case.
However, those matters cannot be viewed in a vacuum. That assessment will be continually revisited as the matter progresses and where the defendants make clear that there is a fundamental attack upon the plaintiffs’ liability and damages claims, then it would be expected that a reassessment would be made from time to time to take into account the plaintiffs’ adviser’s assessment of the attack made upon the plaintiffs’ case. This is only naturally to be expected bearing in mind the nature of the attack made by the defendants in this matter. It is to be emphasised that the defendants deny any significant collision between their vehicles and the vehicle driven by the first plaintiff and, in one case, that the collision was so slight as to barely cause any damage to either vehicle. Implicitly, there is a suggestion by the defendants that such a collision could not have caused any damage to any occupant of a vehicle if it barely raised the possibility of damage to the vehicle itself. Of course this is not in any sense conclusive but it is to be a matter to be weighed in the balance.
The defendants placed reliance upon the decision in Stephens v Chandler.[14] That decision was referred to by Lunn AJ in Hall v Dixon (No 2)[15] wherein his Honour observed that section 42, nor the established common law, gives any guidance about how a discretion should be exercised where an action was properly commenced in one court but subsequently, should have been transferred to a lower court. I have already set out the relevant parts of the decision of Hogarth J in Cretazzo v Lombardi.[16]
[14] (1988) 46 SASR 541.
[15] (1988) 143 LSJS 318.
[16] (1975) 13 SASR 4 at page 6.
At the time that Stephens v Chandler was decided, section 42 of the Local and District Criminal Courts Act 1926 relevantly read as follows:
42 Cost where plaintiff sues in Supreme Court
(1) Except where the action has been removed into the Supreme Court by the defendant, in any action (a) in the Supreme Court for any cause of a kind that is within the jurisdiction (b) of a local court, where-
(a) the plaintiff recovers a sum in an action founded on contract or on a quasi-contractual obligation that does not exceed the amount of the local court jurisdictional limit;
(b) the plaintiff recovers in an action founded on tort a sum that does not exceed one half of the amount of the local court jurisdictional limit,
the plaintiff shall have judgment to recover that sum only and no costs, unless the Judge trying the action or, if there was no trial, a Judge of the Supreme Court in chambers otherwise orders.
(2) If such Judge is of opinion that having regard to all the circumstances of the case it is just that the plaintiff should recover the whole or any part of the costs of the action, he may order the defendant to pay such costs to the plaintiff as he deems just.
At the relevant time there was no separately constituted District Court with a civil jurisdiction and there were only Local Courts of full jurisdiction and limited jurisdiction. The higher court in that instance was the Supreme Court and this explains the reference in the section to the Supreme Court. At the time of the decision in Stephens v Chandler, section 42 of that Act did not make reference to the time at which an action might have been brought which is a consideration currently under section 42(2)(b), as I have earlier set out. The Court was therefore addressing different legislation.
The position in Hall v Dixon is that the plaintiff commenced proceedings in the Supreme Court but recovered less than the threshold amount. In making his decision on costs. Lunn AJ said as follows:[17]
I am of the view that at some stage a reasonable time before the action was entered into the trial list of this court, the plaintiff should have applied for it to be transferred to the District Court for trial. Such an order would certainly have been made.
The discretion under section 42 is not to be exercised in an arithmetical way on any precise calculation of when an action should have been transferred, or to what costs were incurred before or after that date. I am satisfied to exercise it on the basis that the plaintiff should be sufficiently penalized in costs to deter other plaintiffs in a similar position from proceeding in this court but that she should not be penalized to the extent that she would have been penalized if she should not have commenced the action in this court. In the latter instance, the proper order would have been that she should have no costs.
[17] At page 320.
His Honour ordered that the plaintiff have 50 per cent of her costs.
The facts of this matter are different from, for example, the facts with which Judge Soulio was dealing in Esposito. They are not much different from the facts and circumstances of the action in Hall v Dixon. I also do not favour an approach of some arithmetic method of calculating when an action should be transferred and when a different cost regime may apply. That is because each matter will vary according to its peculiar facts. Notwithstanding the difference in any given factual circumstance, the court is in a position to form view about the appropriate time when a proceeding should be transferred to a lower court when assessing costs. Such assessments are generally made ex post facto after the proceedings have been completed. That was the position that confronted Lunn AJ in Hall v Dixon and Judge Soulio in Esposito. In both cases, orders were made for a reduced level of costs because of a failure to remove an action from a higher court to a lower court. Those decisions were made in the exercise of the discretion of the court. I am in the same position in this matter irrespective of any other considerations. That is the way that I intend to proceed and that approach is also consistent with the decision in Cretazzo.
The figures achieved in the settlement of this action inform the merits of the plaintiffs’ claim. It was a very minor damages claim. There is no suggestion that the limit of the plaintiffs’ claim was an epiphany that occurred recently. If such a proposition was put in submissions, I would not accept it for a number of reasons including that the assessment which informed settlement was made in the light of the information that has been available for quite some time. In those circumstances, I remain free to exercise my discretion irrespective of the other findings that I have made.
In the first defence filed in this action by the defendants on or about 28 October 2013, the plaintiffs’ claims were denied. There was a denial of negligence, an allegation of contributory negligence and a denial of the claims for personal injury loss and damage. There was also denial of the second defendants claim. In the pleading addressed to the second defendants claim (paragraph 7) the following plea is set out:
… the second defendant says that the impact between the first plaintiff’s vehicle and second defendant’s vehicle was so minor as to have been insufficient to cause the alleged injuries or any injuries at all.
It is then alleged that if the first plaintiff suffered any personal injuries loss or damage, then such injuries loss and damage do not relate to any of the collisions but relate to pre-existing conditions suffered by the first defendant. There was greater particularity of that pleading within the second defence but in my opinion those matters do not throw any greater light upon the effect of the plea. That is, that the first plaintiff, a man of 65 years of age was suffering from pre-existing conditions which explained the alleged pain and suffering claimed by the first plaintiff against the defendants. The defendants pleaded that any incapacity related to pre-existing, unrelated medical condition and not from anything that was sustained in any of the collisions. That meant that the position of the defendants was that there was no impairment of work capacity, that there was no need for gratuitous or paid services and that whatever damage may have been suffered by the plaintiff in the collisions, he no longer suffers pain or loss of amenities. Any pain that he does suffer was due to his pre-existing and unrelated medical conditions. The defendants denied that the plaintiff required any medical or other treatment and that any treatment undertaken by the plaintiffs was related to pre-existing conditions.
In relation to the claim of the second plaintiff, the defendants pleaded that the first plaintiff’s condition was not such that it caused any impairment of relations with the second plaintiff such that she would be entitled to damages for loss of consortium. Alternatively if there has been any impingement of the relations with the second plaintiff such impairment was due to the first plaintiffs pre-existing and unrelated medical conditions.
In my view, once that first defence was received in October 2013, was assessed in due time by solicitors and counsel and proper instructions were taken, it should have been apparent to the plaintiffs’ that there was a significant challenge to their claims. These views that I have expressed are not to be understood as an acceptance by me of the content of the defences as pleaded. Obviously enough in personal injuries cases it is usual for defendants to strongly contest the plaintiffs’ claims and especially their damages claims. This is a different case for a number of reasons. These include a serious challenge to the veracity of the plaintiffs’ version of events. This challenge was significant on a number of levels and perhaps the most important was the credit worthiness of the plaintiffs’ version of events.
At the time of the collisions, the first plaintiff was 69 years of age, having been born on 13 June 1943. There is no identification in the pleadings of the age of the second plaintiff; it may be assumed that she was younger than the first plaintiff but still within her sixties. Actually and implicitly, this was not a large claim. The defendants were in a position where they were able to make substantive and direct pleadings against the plaintiffs’ claims based upon the first plaintiff’s pre-existing medical conditions. The second defence filed by the defendants gives greater particularity of those pleadings. That particularity was not in any sense a revelation to the plaintiffs. They were matters of which the plaintiffs were aware or should have been aware. In my opinion, those are the matters that I may take into account in the exercise of my discretion.
Section 42 of the District Court Act in section 42(2) addresses a number of time periods. The first, in section 42(2)(b) is a time in which an action might have been brought in a Magistrates Court. The second, in section 42(2)(c) is an assessment to be made at the time that the plaintiff recovered damages in the matter. If the plaintiff recovers less than the amount fixed by the rules for the purposes of the paragraph, no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of the action. It follows that section 42(2) does not completely limit or confine the discretion of the court in fixing costs in the matter. In those circumstances and in light of the material facts as I have found them, I am of the opinion that it is just in the circumstances of this case to make the following order for costs in favour of the plaintiffs:
1. That the plaintiffs have their costs of action on the District Court scale until 31 December 2013;
2. That the plaintiffs have the costs of the action on the Magistrates Court scale from 1 January 2014.
I so order.
As the defendants have been substantially successful in their arguments on costs, the defendants are entitled to an order for the costs of the argument on costs at the appropriate District Court scale. I certify fit for counsel.