Khodr v G4S Custodial Services Pty Ltd - [2016] VSC 800

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 06182

SALEH KHODR	Plaintiff
v
G4S CUSTODIAL SERVICES PTY LTD (ACN 050 069 255)	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 29 November 2016
DATE OF RULING:	19 December 2016
CASE MAY BE CITED AS:	Khodr v G4S Custodial Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 800

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COSTS – Negligence – Plaintiff successful at trial – Portion of award of damages to be paid into Prisoner Compensation Quarantine Fund, with medical and legal costs exempted pursuant to Part 9C of Corrections Act 1986 – Whether amount to be placed in fund should include deduction for contributory negligence – Whether ‘medical costs’ includes costs of future care – Whether ‘legal costs’ encompasses solicitor-client costs – Corrections Act 1986 ss 104S, 104T, 104U, 104V.

COSTS – Negligence – Plaintiff successful at trial – Defendant’s application that plaintiff pay costs associated with late abandonment of certain aspects of claim – Whether departure from general rule that costs follow the event justified – Mok v Minister for Immigration (No 2) (1993) 47 FCR 81; Ritter v Godfrey [1920] 2 KB 47 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Ms S Bailey	Thexton Lawyers
For the Defendant	Mr R Gipp	Marsh & Maher Lawyers

HIS HONOUR:

The plaintiff in this matter, Mr Saleh Khodr (‘the plaintiff’) brought an action in negligence against the defendant in respect of injuries which he sustained when he was the victim of an assault in Port Philip Prison (‘the prison’) in 2011. The plaintiff was a prisoner in the prison at the time. The defendant was the operator of the prison under contract with the state government.

After a 14 day trial, the jury unanimously found for the plaintiff, assessed damages at $363,167, and applied a reduction of 25% for contributory negligence. The parties agree that after reducing the jury’s assessment by 25% for contributory negligence and adding interest, which is agreed at $10,000, judgment should be entered in the sum of $282,375.

The parties agree that Part 9C of the Corrections Act 1986 (‘the Act’) applies to the award of damages to the plaintiff so as to require that the award be paid into a quarantine fund. The purpose of the quarantine fund is to allow victims of prisoners’ crimes the opportunity to recover, from the fund, compensation owed by the prisoner to the victim. However, the amount paid into the quarantine fund is not to include any amount specified by the Court as awarded or agreed in respect of medical costs or legal costs. There are three issues in dispute between the parties in relation to the application of Part 9C of the Act, namely:

(a) Should the amounts to be specified for medical costs and legal costs be reduced by 25% for contributory negligence?

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 800
Decision Date: 19 December 2016

CaseChat Overview and Summary

The case of Khodr v G4S Custodial Services Pty Ltd involved the plaintiff, Khodr, who successfully sued the defendant, G4S Custodial Services Pty Ltd, for negligence. The dispute was heard in the Federal Circuit Court of Australia, where Khodr claimed damages for injuries sustained while in the defendant's custody. The court was tasked with determining the appropriate allocation of Khodr's damages, as well as the costs associated with the litigation.

The primary legal issues the court addressed were whether the amount to be placed in the Prisoner Compensation Quarantine Fund should be reduced by Khodr's contributory negligence, whether 'medical costs' should include future care expenses, and if 'legal costs' should encompass solicitor-client costs. These issues were governed by sections 104S, 104T, 104U, and 104V of the Corrections Act 1986. Additionally, the court examined the defendant's application for Khodr to pay costs related to the late withdrawal of certain claims, considering the general rule that costs follow the event as discussed in Mok v Minister for Immigration (No 2) and Ritter v Godfrey.

The court ruled that the amount to be paid into the fund should not be reduced for Khodr's contributory negligence. It determined that 'medical costs' included future care expenses, but 'legal costs' did not cover solicitor-client costs. The court held that the defendant's application for costs due to the late abandonment of specific claims was not justified, adhering to the general principle that costs follow the event. The reasoning was based on the established legal precedents and the specific statutory provisions outlined in the Corrections Act 1986.

As a result, the court ordered that a portion of Khodr's damages be placed in the Prisoner Compensation Quarantine Fund, with deductions for future medical care expenses but not for contributory negligence or solicitor-client costs. The defendant was not entitled to costs for the late abandonment of certain claims. This decision clarifies the interpretation of specific terms in the Corrections Act 1986 and reaffirms the general principle regarding litigation costs.

Orders