James v Launceston City Council (No 3)

[2004] TASSC 90

[2004] TASSC 90

CITATION:            James v Launceston City Council (No 3) [2004] TASSC 90

PARTIES:  JAMES, Gerald Robert
  v
  LAUNCESTON CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 161/2000
DELIVERED ON:  31 August 2004
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2004
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure - Costs - General rule - Costs follow the event - Costs of issues - Exercise of the discretion - What is the main event - Undesirable to award costs on separate issues unless good reason to do so.

Cox v Crooks (No 2) [2000] TASSC 3; Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited & Anor [2003] TASSC 132, followed.

Aust Dig Procedure [557]

REPRESENTATION:

Counsel:
           Plaintiff:  F V Moore
           Defendant:  S B McElwaine
Solicitors:
           Plaintiff:  Archer Bushby
           Defendant:  Shaun McElwaine

Judgment  Number:  [2004] TASSC 90
Number of paragraphs:  13

Serial No 90/2004
File No LDR 161/2000

GERALD ROBERT JAMES v LAUNCESTON CITY COUNCIL (No 3)

REASONS FOR JUDGMENT  SLICER J

31 August 2004

1. The plaintiff has moved for judgment in the sum of $165,552.08 in accordance with reasons for judgment in James v Launceston City Council (No 2) [2004] TASSC 70 and calculations made in accordance with those reasons. The calculations are not contested and there will be judgment for the plaintiff in that amount. Both parties seek an order for costs.

1. The contentions of the defendant are:

(1)Given the findings of the Court in relation to the lack of credibility of the plaintiff and his exaggeration of the claim, it is inappropriate that he obtain the benefit of a costs order.

(2)The plaintiff had made an inflated claim, compared to which the award made could be said to be substantially unsuccessful.

(3)The failure of the plaintiff to discover or permit inspection of certain medical records on a basis of privilege inhibited the capacity of the defendant to make a proper pre-trial assessment of the likely quantum of damages, to make an informed offer of settlement, and the ability of the defendant's expert witnesses to properly consider the evidence.

(4)The making of an inflated claim required the defendant to spend much time at trial in meeting the claim, an exercise which was successful and reflected in the judgment obtained.

(5)The plaintiff failed in respect of a number of discrete claims, in particular that he continued to suffer from a post-traumatic stress disorder.

1. The contentions are not accepted.  The defendant had denied both liability and contested most claims of damage.  It denied negligence and pleaded, unsuccessfully, the existence of contributory negligence.  While the plaintiff was not accepted as a credible witness on the extent of his injury and loss, his version of events giving rise to the accident was accepted. The question of assessment was complex and required, in part, the disentangling of cause and effect in accordance with the principles stated by the High Court in Watts v Rake (1960) 108 CLR 158. The particulars of claim stated a claim based on total disablement until retirement age and the evidence concerning that issue was that of cause and effect. The plaintiff's case was in part successful in that the claim of ongoing impairment was supported by witnesses whose testimony was accepted. The plaintiff's evidence sought to enhance his cause and to attribute all consequences to the accident. Rejection of that evidence did not destroy the totality of the claim. The defendant had the option of making an offer of compromise and did so on the basis that portion of the claim was supportable and portion not attributable to the accident. Its claim that but for the failure to disclose the plaintiff's medical records, the defendant would have been more able to assess an appropriate offer, does not reflect the fact that it was the long-standing existence of diabetes which was central to the assessment of future work capacity and which was known to and considered by the medical advisers retained by the defendant. The relevant findings of the Court in relation to future capacity and loss of future earnings were:

"The history as provided by the plaintiff is accepted only where it is corroborated, unchallenged or accords with common experience.  That accepted evidence, together with the medical records and the competing opinions of conscientious experts, permit the following findings:

(1)   The plaintiff had a pre-existing condition affecting his back and legs.

(2)   The plaintiff had a pre-existing condition of diabetes which, in turn, caused secondary health complications.

(3)   The accident both exacerbated the back condition and caused, independently, physical harm and pain.

(4)   That physical harm and pain will resolve at least within the next 3 – 5 years.  It has affected the work capacity of the plaintiff to a partial degree.  It has not rendered him totally incapable of work.

(5)   The eye condition of the plaintiff would, irrespective of the accident, cause him to relinquish any work involving the driving of a motor vehicle.

(6)   Diabetes with its attendant complications would, irrespective of the accident, curtail his working life, probably within five years.

(7)   Future work related incapacity is only partially a consequence of the injury.

Those findings govern, in different ways, the assessment of damages for pain, suffering and loss of amenity and for future loss of income.

…

It is unlikely that the plaintiff would have been, irrespective of the accident, able to lead an active working life beyond the next five years.  He remains able to perform certain types of work.  The injury caused by the accident has not caused all of the conditions which have brought about impairment and, in any event, the physical injury is likely to resolve before the five year period."

1. The findings were made in accordance with opinion evidence adduced by both the plaintiff and the defendant.  It is not necessary to determine the reasonableness or otherwise of the failure before trial of the plaintiff to make discovery of all of the medical records kept by his general practitioner, since the crucial issue of the existence of diabetes had been made known to the defendant through the provision of proofs of evidence and was considered by the defendant through its own advisers.

1. The claim made by the plaintiff was complex and the potential outcome uncertain.  The conduct of the plaintiff's case at trial was more measured than that outlined in the particulars.  But most of the claims advanced, which were contested by the defendant, were successful to some degree.  The condition of the plaintiff was a product of the operation of multiple causes (Shorey v P T Limited [2003] HCA 27) and the following approach was adopted by the Court to the assessment:

"The assessment of damages is attempted on the basis of the following principles:

(1)   The onus of proving entitlement to damages and their quantum remains with the plaintiff.

(2)   Where there is entanglement of a pre-existing condition with ultimate outcome, it is for the defendant, through its cross-examination of the plaintiff and his witnesses, and evidence which it might adduce, to show as a matter of inference and deduction which medical or psychological detriments ought be separated or distinguished from the present condition and its prognosis.  Its responsibility is to identify and demonstrate through reason and inference which factors ought be disregarded, not for the plaintiff to demonstrate which ought not be disregarded.

(3)   The process is dependent upon the whole of the evidence adduced at trial.  There is no onus on the defendant to adduce evidence, subject to the general principles of Jones v Dunkel (1959) 101 CLR 298, nor adverse inference to be drawn by failure to do so. On the evidence it ought demonstrate why a pre-existing condition ought be disregarded or given little weight.

(4)   The duty remains with a plaintiff to act reasonably to mitigate his or her damage, but it is for the defendant to persuade the tribunal of fact, on the whole of the evidence adduced at trial, that the impugned conduct was unreasonable."

since:

"He is entitled to rely prima facie on the difference between his pre and post-accident condition and it is not for him to disprove that his pre-accident health would have eventually incapacitated him.  But on all the evidence, including that advanced in support of his cause, he would have become disabled irrespective of the accident.  The entanglement of varying layers of ill health, disability and capacity make resolution complex and assessment imprecise."

1. The contesting of the extent of the claim was both inevitable and necessary.  But the same problems confronted the plaintiff.  He was required to place evidence before the Court which identified a number of causes and which detracted from a higher entitlement.  It could not be said that either party spent unwarranted time in the presentation of their respective cases.

1. The plaintiff claimed to have continued to suffer from post-traumatic stress disorder as a factor in his ongoing disablement.  The claim was supportable on the basis of his medical evidence. The finding was that the evidence was:

"… consistent with the human condition that some of the symptoms provided to the psychiatrist and their descriptive terms as used in the reports re-appear in the subsequent notes of his treating doctors, which had not previously been provided by the patient.  Whilst the process is understandable, the outcome weakens the impact of the diagnosis reached by the consulting psychiatrist that the plaintiff suffered from 'a Chronic Post-Traumatic Stress Disorder, which is of a mild to moderate degree'.  The evidence is consistent with a general condition of 'general irritability and increased anxiety' and general depression, for which the plaintiff had inadequate 'coping mechanisms', probably lessened by an increased reliance on alcohol."

1. The defendant contested, not that the plaintiff had suffered no mental distress, but that his condition was a more complex consequence of cause and effect and its expert witness, in the words of the reasons for judgment, at 28:

"… placed more emphasis on alcohol consumption, the cumulative effects of diabetes, general depression, and the effects of pain."

1. The symptoms of anxiety, irritability and general depression, exacerbated by alcohol abuse, were accepted and regarded as matters relevant to the assessment, although the existence of a psychiatric disorder with future effect, rejected.  Such a claim and its rejection is not unusual and certainly could not be said to be unwarranted or wholly without merit.

1. This is not a case to which the principles discussed in Atwell v Atwell [2003] TASSC 10 ought apply. The application that either the plaintiff pay the defendant's costs, or that each party pay their own costs is rejected.

1. The plaintiff seeks payment of his costs in the action, an application which the defendant opposes or says that at least the plaintiff ought recover only portion thereof.  The defendant contended that its offer of settlement made in February 2004 which was met with the plaintiff's counteroffer of $180,000, together with the failure to disclose, ought disentitle the plaintiff to the benefit of all of his costs.

1. The plaintiff was wholly successful on the issue of liability and there was no question but that he was entitled to damages.  There is no reason here why costs should not follow the outcome (Latoudis v Casey (1990) 170 CLR 534; Oshlick v Richard (1998) 193 CLR 72). It was open for the defendant to make an offer of compromise, and, given the nature of multiple causes, it was required to "disentangle" the differing strands of evidence and causation. The problems of making an assessment of damages before all of the evidence has been led and tested at trial are well known (see Cox v Crooks (No 2) [2000] TASSC 34) especially where there is a multiplicity of issues (Cretazzo v Lombardi (1975) 13 SASR 4) which are difficult to differentiate (JDM Investments Pty Ltd v Toddern Pty Ltd [2000] NSWSC 432). Here there is no reason to order other than that the defendant pay the plaintiff's taxed costs on the action on a party/party basis (Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited & Anor [2003] TASSC 132).

1. Orders:

(1)That there be judgment for the plaintiff in the sum of $165,552.

(2)That the defendant pay the plaintiff's taxed costs on the action on a party/party basis.