Isho v Skupien (No 2)

In this case, Isho sued Skupien over an incident that occurred during Isho’s employment with Skupien. The dispute was heard in the Supreme Court of Victoria. The primary issue was the assessment of costs under the court’s discretion to depart from the general rule of costs following an offer of compromise made by Isho. The offer was made in the form of a Calderbank letter, which was accepted by Skupien, but Isho later sought an order for costs on an indemnity basis.

The court found that the case had changed significantly from the position at the time of the offer. There were three factors present at the time of the offer which put Isho at significant risk, and no exceptional circumstances were present. The court also considered whether Skupien was entitled to further costs for recovery payments made to a worker’s compensation insurer. The court found that the amount of recovery was affected by the contributory negligence finding and awarded Skupien the costs for 35% of the amount paid to the worker’s compensation insurer based on the finding of 65% contributory negligence.

The final orders were that Skupien was to pay Isho’s costs up to 8 June 2012 on the ordinary basis and Isho was to pay Skupien’s costs from 9 June 2012 on an indemnity basis. Execution of the judgment was stayed for no more than two months.