Kitson v Skilled Group Ltd

[2010] QSC 414

SUPREME COURT OF QUEENSLAND

CITATION:

Kitson v Skilled Group Ltd & Ors [2010] QSC 414

PARTIES:

Andrew Paul Kitson
(Plaintiff)

and

Skilled Group Limited (CAN 005 585 811) formerly known as Skilled Engineering Limited
(First Defendant)

and

Amitek Pty Ltd (AC 009 679 201) formerly known as NQEA Australia Pty Ltd
(Second Defendant)

and

Furniture Manufacturing Company of Australia Pty Ltd (CAN 010 725 318)
(Third Defendant)

and

Luxury Yacht Finishers Pty Ltd (CAN 056 517 303)
(Fourth Defendant)

FILE NO/S:

90 of 2007

DIVISION:

Supreme Court

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court in Cairns

DELIVERED ON:

Friday 5 November 2010

DELIVERED AT:

Supreme Court in Townsville

HEARING DATES:

23 – 24 February 2010

20 – 22 October 2010

JUDGE:

Cullinane J

ORDERS:

         [1]      I give judgment for the plaintiff against the first defendant in the sum of $486, 045.56.

         [2]      I give judgment against the second, third and fourth defendants in the sum of $516, 066.09.

         [3]      I give the parties liberty to apply in writing within 14 days on the issue of costs.

CATCHWORDS:

PERSONAL INJURIES – where the plaintiff has instituted proceedings against the four defendants claiming damages for personal injuries sustained in the course of his employment – where both liability and quantum are in dispute – where the first defendant is a labour hire company and is sued as the plaintiff’s employer – where the third defendant was undertaking fit out work on a vessel situated at the second defendant’s shipyard – where the fourth defendant was undertaking painting work on the vessel pursuant to a contract with the second defendant – where the plaintiff had only commenced employment a few weeks before he was injured – where the plaintiff alleges to have slipped on a step whilst descending the steps of the vessel – where the defendant asserts the plaintiff did not slip but lost his footing – whether the defendants have breached their duty to the plaintiff

COUNSEL:

M Glen for the Plaintiff
R Morton for the Defendants

SOLICITORS:

Turner Freeman for the Plaintiff
Cantwell Lawyers for the Defendants

[4]      The plaintiff has instituted proceedings against the four defendants claiming damages for personal injuries said to have been sustained by him on 4 August 2004 in the course of his employment as a ship joiner.  Both liability and quantum were in dispute.

[5]      The first defendant is a labour hire company and is sued as the plaintiff's employer.  The first defendant assigned the plaintiff to the third defendant which was undertaking fit out work on a vessel situated at the second defendant's shipyard at Cairns.  The fourth defendant was undertaking painting work on the vessel pursuant to a contract with the second defendant.

[6]      The defendants were jointly represented.

[7]      Counsel who appeared for all of the defendants informed the Court that in the event that liability was established against one or more of the defendants judgment should be entered against all defendants. 

[8]      The various roles of the defendants just outlined were admitted.

[9]      The plaintiff was born in the United Kingdom on 25 March 1963. 

[10]      He had been employed as a joiner and had commenced that employment only a few weeks prior to being injured.   

[11]      The vessel concerned was of some 30 to 40 metres in length, 8 to 10 metres in width and 12 to 15 metres in height. 

[12]      The plaintiff's case is that he slipped on one of the steps whilst descending the starboard steps of the vessel carrying a panel, which he had to take to a workshop for the purposes of doing work on it with a circular saw.

[13]      The particular panel (which according to the plaintiff weighed about 5 kilos) was to form part of the seating on the foredeck of the vessel and the plaintiff had been instructed by his superior, one Roberts, to do this work.  He and Roberts had walked to the foredeck together with the plaintiff following Roberts up the starboard stairs where Roberts gave him instructions about the work.

[14]      Exhibit 1 is a side elevation of the starboard side of the vessel.  Exhibit 3 is a photocopy of a stern view of the vessel on which the plaintiff has marked his passage or intended passage on the day he was injured.

[15]      Exhibit 4 is an overhead plan view of the vessel prepared by the plaintiff again showing his intended path and on which the area in which he slipped and fell is marked.  Exhibit 5 are some photographs of the steps.  These are of relatively poor quality and therefore of limited use.

[16]      The plaintiff says that as he was walking down the stairs and had reached the last few stairs, he slipped and fell and landed awkwardly on the main deck with his left ankle rolled over.  He said that when he came to rest, his backside and legs were on the deck and his shoulders and head against the lower two or three steps.

[17]      He gave the following evidence at r1-45, l  15 to 50:

"MR GLEN:  All right.  Now, what happened next after you after you   fell; what did you do next?-- I recall I had total blurred vision and I                was in a lot of pain.

All right.  And do did you get up or did you stay there, or ----?-- I was -                 I was - stayed down there.

Well, after you - after you - well, what happened next?-- Around five,                    10 minutes I then proceeded to - to get up, where I turned around.

All right.  What did you turn around for?-- I - I looked at the lower   third steps and run my hand over the top of one of the steps, and   looked at the palm of my hand and it was covered in - in white   overspray residue.

Why did you - why did you turn around and look at the stairs?-- I   couldn't understand why - why I'd slipped.

And - and what - so what - what were you trying to do?-- I was - you   know, I was - you know, I - I was looking to see, you know - you know,   why I'd slipped on the steps and - and -----

All right.  You said you rubbed your hand over it; over which part of   the steps did you rub your hand? -- Over one of the tops of the steps.

Okay.  And how far up the step was that?  How far up the steps would -                 did you rub your hand?-- It was - it was sort of, you know - it was, you   know, one of the lower steps.  It could have been the second or the   third.

All right."

[18]      The case for the defence was conducted upon the basis that the plaintiff did not slip, that in some way or other he lost his footing or missed the step when coming down.  However, in each of the defences it is admitted that the plaintiff slipped as he walked down the stairs, carrying the panel. 

[19]      The plaintiff was the only witness to what happened.  I do not overlook the fact that one Nicholas was called by the defendants and he purported to give evidence of seeing the plaintiff in the final stages of falling.  However, I thought that his evidence was quite unworthy of credit and it was not contended on behalf of the defendants that I should accept what he said.  He appears to have formed the view that the plaintiff falsified the whole incident, something which I am not prepared to accept.

[20]      The evidence suggests that the work on the vessel had fallen well behind schedule.  This meant that painters and other workmen were still there whilst the plaintiff was performing his work and there was some degree of conflict or tension between the performance of the various tasks.

[21]      It is apparent from Exhibit 35 which contains record of meetings of men working on the vessel, that there were ongoing complaints about dust from the painting operations.  James Tait  Elliott, who was employed as a Workplace Health and Safety officer at Cairns at the third defendant's boatbuilding site was called to give evidence. He was taken through the records relating to the meetings.  It is apparent that complaints were made on an ongoing basis, at least sporadically throughout the period covered by the exhibit.  There had been no such complaints in the few weeks prior to the incident.

[22]      Although it had been denied in the defence it is plain that painting work was still being performed at the time the plaintiff was injured.  There had in fact been painting on the previous evening.

[23]      A drop sheet or curtain had been used to isolate the area of the stairs where the painting was carried on and this had been pulled back for the purposes of enabling access via the stairs on the day of the accident.  In addition it would seem that sanding operations were carried on in the area on the day of the accident.

[24]      The plaintiff's case was that dust had accumulated on the lower stairs or some of them and that he slipped on the accumulated material and fell. 

[25]      The evidence reveals that there were two sources of dust from the painting operations.  One was from overspray and in evidence there was a tendency to refer to this as overspray rather than dust.  The overspray however when dried formed a type of powder or dust.  The other source was from sanding operations. 

[26]      When the plaintiff was first called to give evidence in February 2010, he spoke primarily of the overspray, although he made some reference to the dust from the sanding operations.

[27]      At that time it had been intended to call an expert to give evidence for the plaintiff  on this subject but objection was taken and ultimately this evidence was not allowed to be called.  Two experts were appointed by the Court.  One, Mr Haig, was asked to report in relation to the properties of overspray and the other, Dr Jenkins, was asked to report in relation to the co-efficient of friction in respect of certain surfaces and substances.

[28]      It became common ground that overspray would not have the effect of rendering a surface upon which it fell, slippery.  It was also common ground that the dust in the form of the dried overspray and the by-product of the sanding operations could, if sufficiently thick, create a risk of slipping because of the low co-efficient of friction.  The risk of slipping in such a case could arise either because of the possibility of a shearing action within the layer of dust or between the dust and the tread or between the dust and the shoe.  Dr Jenkins gave evidence of risks at various levels.

[29]      No measurements were taken following the accident of any dust which may have been on the stairs.  Nor was there any direct evidence on this subject.

[30]      The plaintiff was recalled when the trial resumed in October and gave further evidence which was intended to elaborate upon the extent of the dust on the stairs and in the area.  It was suggested in cross-examination that he had altered his evidence in the light of the experts' reports.  He denied this.

[31]      To rebut the suggestion of recent invention, four statements by the plaintiff were tendered.  These are Exhibits 27 to 30.  Their contents become evidence of the facts.

[32]      The first two of these were made within days of the accident and were provided to Workplace Health and Safety officers.

[33]      In the first of these dated 11 August 2004 he ascribed the cause of his having slipped to overspray from heavy spraying during the previous evening's painting causing debris to cover metal in the lower one third of the stairwell stairs. He described the area as having been tented in with painters' overspray plastic covering sheets across the lower one third of the stairway steps and along the entire passage way afterwards causing heavy overspray to the entire floor surface and steps in the tented area.  He describes the plastic sheeting as having been removed so that access could be obtained because of restrictions on obtaining access on the other side of the vessel.

[34]      In the second statement dated 18 August 2004, he described there as having been "heavy over spraying debris causing hazard to the entire floor surface area and steps in question on flat base metal without any non slip surface protection on the step surfaces or edges.  Caused to lose footing on stairwell."

[35]      Exhibit 29 is the plaintiff's notice of claim under the Personal Injuries Proceedings Act. Attached to the statement is a diagram in which the plaintiff has shown in darker colour the lower area of the stairs. He has written:

"Entire area to floor lower third steps in tented area covered in heavy overspray debris."

[36]      He has shown the area that had been tented in by the painters on the previous evening.  At the side of the sketch he has printed:

"Painters caused additional heavy dust throughout day sanding vast caprall bog causing debris on floor area in question and steps."

[37]      The final exhibit is a statutory declaration made for the purposes of the Act in which the plaintiff says in paragraphs 13 to 17:

"13.      I do not know which step I slipped on but it was about two-thirds of the way down.

14.        I was looking ahead and slightly down as one would look descending stairs.

15.       The overspray was white.

16.        The extent of the overspray was heavy. The bottom third of the steps were covered with the highest build up against the right hand wall.

17.        I did not notice the overspray before the incident."

[38]      As I have mentioned, the plaintiff had been carrying a panel down the stairs at the time that, on his account, he slipped and fell.

[39]      My impression of the plaintiff was of a dour, somewhat unhappy man.  In cross-examination by counsel for the defendants, particularly in relation to events surrounding his application for a disability pension some four years or so prior to the accident, he adopted a cautious, somewhat suspicious response.  He was reluctant to acknowledge things answering many questions "I can't recall."  I have the impression that he believed, rightly or wrongly, that false information had been included in records about him and for this reason he was disinclined to confirm what was put to him from such records.  Undoubtedly there were some instances in which erroneous information was included in the records.

[40]      I nonetheless formed the impression that the plaintiff was a truthful witness about the events in question and I accept his evidence that he slipped and fell and that he did so in dust which had accumulated in substantial quantities on one or more of the steps.  The dust was the consequence of painting operations being carried on there.

[41]      There was evidence called by the defendant as to cleaning procedures in place.  Some of this evidence was given by one Hohn who conducted a cleaning service and who had been engaged by the second defendant and subsequently the third defendant and the fourth defendant.

[42]      This work was primarily carried out in the morning and completed by 7 o'clock.

[43]      The plaintiff's accident occurred at about 3.30p.m. in the afternoon. Mr Hohn gave evidence that other cleaning was also carried out.

[44]      One David John Rendall, a director of the fourth defendant also gave evidence of the painting operations that were carried on. 

[45]      Counsel for the plaintiff advanced an argument based on the evidence including that of Rendall as to how the steps where the plaintiff slipped and fell may not have been cleaned after painting operations before the steps became available to be used.

[46]      I think this is a likely explanation but it is in any case clear that the system of cleaning dust and debris was at the time inadequate and its inadequacy resulted in the stairs becoming dangerous to anyone using them.

[47]      In addition there was evidence from Dr Jenkins that stairs ought to have an adhesive non slip strip fixed to the front of them to prevent persons slipping and falling from those stairs.  Had such a strip been present it is unlikely the plaintiff would have fallen.  On the other hand it is plain that it would not have been practicable whilst painting operations were being carried out on the stairs for this to be done.  In those circumstances however, an alternative means of access to the workshop should have been provided.  Such access would have reasonably been expected to include stairs with this safety measure forming part of them.  It is clear that there was at least one other means of access which might have been made available, although the plaintiff was not permitted to use them at the time.

[48]      The plaintiff in my view has established a breach of duty against the first and third defendants and is entitled to succeed because of these defendants' failure to provide a safe system of work which would ensure that he had a safe means of access by way of stairs to his workplace.  He has established two alternative bases of breach of duty.  In addition he has made out a claim for breach of statutory duty under s 28 of the Workplace Health and Safety Act 2005 as amended.  I am satisfied that the first and third defendants have not discharged the onus resting upon them under that statute so as to avoid a finding against them for breach of the statutory duty.  I am satisfied that the plaintiff's injuries were caused by the defendants' negligence and breach of duty and breach of statutory duty.

[49]      In my view the plaintiff has also established negligence and breach of duty on the part of the other defendants but in view of the position adopted by the defendants through their counsel, the above findings are sufficient to justify entering judgment against all of the defendants.

[50]      The defendants did not contend that any finding of contributory negligence should be made against the plaintiff and indeed counsel for the defendants expressly disavowed this.

[51]      The plaintiff left school in 1979 and undertook a boat builder's apprenticeship at a boatyard in Hampshire.  He completed this which qualified him as a shipwright and then worked for his master for some twelve months when he was involved in a serious workplace accident.  He fell some 20 feet down a staircase, sustaining injuries to both knees but particularly to the right knee.  He was away from work for more than a year during which he underwent extensive treatment including surgery for his knee.

[52]      As a consequence of this injury and the disability that he suffered, he could not return to his work as a shipwright.  He was thereafter employed primarily in the lighter work of a joiner.  His work history before emigrating to Australia is set out in his statement.

[53]      When he came to Australia the plaintiff who at that time already had a restricted working capacity worked initially at a resort at Port Douglas performing the tasks of handyman, maintenance engineer and a variety of other jobs.  He was there for about six months before obtaining work as a joiner at a shipwright.  This lasted for about two years.  In December 1998 he obtained employment as an internal finisher and commercial shop fitter for about three months before obtaining a short contract of about four months at Portsmith Cairns fitting out a vessel.  His pattern of work up until the time of the accident was to obtain periods of work associated with the fitting out of a particular vessel and looking for other work when the work of a joiner was not available.  He worked from September 1999 for about two and a half years fitting out boats at Cairns before being made redundant in December 2001 in an economic downturn.

[54]      It was in January 2002 that he described suffering the onset of neck and low back pain whilst roller painting a ceiling in his house.  He says this precluded him from returning to work until about July 2002. 

[55]      He was cross examined at some length about these injuries and his condition generally at this time.  The plaintiff does not mention in his quantum statement that he applied unsuccessfully for a disability pension at this time.  A number of documents were generated as a result of this application and he was cross examined about his condition, it being suggested that he had a significant restriction upon his earning capacity at this time.

[56]      The plaintiff says that his shoulder complaints resolved after a short period.

[57]      What is clear is that he was able to return to work in about July 2002 when he was employed for about three months as an internal finisher.  His employment history from June 2001 to June 2005 are set out at paragraph 22 of his quantum statement.

[58]      In October 1995 he was involved in a motor vehicle accident in which he sustained concussion, injuries to his right anterior shoulder and right elbow and a fractured nose. He returned to full time duties after a couple of weeks.

[59]      The plaintiff says that back symptoms which he periodically suffered from arose at about this time. 

[60]      The plaintiff has complained of significant pain and restriction of movement in his left ankle since the accident.

[61]      There is some dispute as to the nature and extent of the plaintiff's injury and his disabilities.

[62]      According to Dr Lim, who has seen the plaintiff on two occasions (May 2006 and February 2009) the plaintiff sustained a partial tear of the lateral ligament of the left ankle which healed with scarring, local pain and tenderness, synovatis at the antero lateral aspect of the left ankle, with impingement symptoms and a compression injury on the medial side of the left ankle with probable osteochondrial damage.

[63]      The plaintiff was first seen by Dr Thomas, an orthopaedic surgeon who examined him on behalf of WorkCover in September 2004.  He had pain and restriction of movement in the ankle at that time but appeared to be improving. 

[64]      He was subsequently seen by Dr Thomas in early December 2004.  There was still restriction of movement and pain in the ankle joint.  Dr Thomas thought that he was suffering from "a definite handicap pertaining to his left ankle region which would prevent him from performing various working activities that throw repetitive stresses and strains on that --- area including his previous type of employment."

[65]      Dr Lim has provided two reports and was called by the plaintiff.  He saw the plaintiff on two occasions.  Dr Dickinson, an orthopaedic surgeon, was called by the defendant.  He had seen the plaintiff on the one occasion in February 2006. 

[66]      There was a sharp difference between the evidence of Dr Dickinson on the one hand and Dr Lim on the other.

[67]      Dr Lim on the later of his two examinations assessed the plaintiff as having a 9% permanent impairment of the whole person as a result of the disability of the ankle and foot.  He found significant restriction of movement in the ankle. He thought that the plaintiff would suffer ongoing symptoms and disabilities as a result of his injuries with the possibility of further deterioration of his condition in the longer term.  He thought the plaintiff's condition had improved compared with his first examination.

[68]      Dr Dickinson on the other hand, detected no disability.  He found no loss of movement.  The only abnormality he detected was a local tenderness.  The injury which the plaintiff sustained, according to Dr Dickinson, was minor and would have only created a temporary restriction upon his ankle movements.

[69]      His view appears to be contrary not only to that of Dr Lim but also contrary to those who examined the plaintiff for the purposes of the orthopaedic assessment tribunal.  It is contrary to what Dr Thomas found on his later examination.

[70]      Dr Dickinson was inclined to also disagree with the reported effect of an MRI carried out in December 2004 and expressed the view that this was most unlikely. 

[71]      It is not easy to understand how there could be such a difference between specialists in the measurement of loss of movement or its absence in the plaintiff's ankle.  However, I am persuaded that the evidence of Dr Lim supported as it is by other specialists and medical practitioners is correct.  I accept that the plaintiff has the disability which Dr Lim describes.

[72]      I formed the impression that the plaintiff was an honest witness in relation to the complaints that he made.

[73]      I am satisfied from the evidence as a whole including that of Mr Hoey, an occupational therapist that the plaintiff is incapable of performing work which involves long periods of standing, walking, crouching or heavy lifting.  On the other hand, he has a capacity to engage in light work of various kinds.

[74]      The plaintiff has not obtained employment since the accident, although he has actively sought it.

[75]      Attached to his statement is a schedule setting out the positions that he has applied for.  These are generally speaking, sedentary positions being of a clerical or administrative nature or involving sales.

[76]      The plaintiff on my assessment of him, given his age, lack of qualifications and experience and my assessment of his personality may not be a particularly attractive employee in these types of areas.

[77]      He has, according to all of the evidence a residual earning capacity but in my view one has to take care in the assessment of the likelihood of his converting this into income.

[78]      The plaintiff says that he has significant instability in his ankle and when, from time to time it is aggravated through use he has to use a walking stick. 

[79]      He wears a bio-magnetic support brace on his ankle at night and during the daytime an ankle brace to provide greater stability for his foot and ankle.  He outlines in some detail the restrictions which he sees his ankle as imposing upon him.

[80]      He injured his left ankle in June 2006 when he rolled on it at a shopping centre.  He was referred to an orthopaedic surgeon who recommended surgery which he was to have undertaken on 31 August 2006.

[81]      However he postponed this, when he realised that he needed family support during the post operative recovery period, and this was not available to him.  It was not contended that he failed to mitigate his loss by refusing to have this surgery and in any case he has said that he thinks he will have it in the future.

[82]      I turn to the assessment of damages.

[83]      So far as general damages are concerned I assess the plaintiff's general damages in the sum of $50,000.  This figure is inclusive of interest.

[84]      So far as past economic loss is concerned, the plaintiff, according to the defendant's submissions, averaged over the few years from 30 June 2002 some $388 per week. This reflects periods when he was unemployed.  The defendant submitted that the plaintiff's economic loss should be assessed by using the rate (about $850 per week) he earned whilst he was employed during those periods as a joiner.  It is unrealistic I think to overlook the periods that the plaintiff was out of work.  As I have said it seems to me that a feature of the plaintiff's work history, at least after he came to Australia, was that whilst he was employed on many occasions in the work of a joiner there were significant periods when he was out of work.  This as I have said, is probably to some extent a reflection of his already limited earning capacity.

[85]      I allow $500 per week for 6.25 years producing a figure which I round out at $160,000.

[86]      I allow interest at 5 per cent for 6.25 years on the difference between this figure and the moneys received from WorkCover and the Department of Social Security (Exhibit 20) by way of income substitution producing a sum of $14,530.00

[87]      Any assessment of the plaintiff's future loss of income is difficult because of the imponderables associated both with an assessment of his future as things currently stand and an assessment of what his future would have been likely to have been had he not been further injured.

[88]      I think the plaintiff would have continued to work as a joiner where possible as this was his chosen field and his history is one of largely seeking and obtaining work in this field.  On the other hand, for reasons already discussed, allowance has to be made for the fact that such work would not be likely to have been permanent.  There were some limitations for the reasons already canvassed on his capacity to obtain work outside of that field.

[89]      On the other hand he has not been able to obtain work since his injury.  I am satisfied that he is desirous of obtaining work and that he has been genuine in his attempts to obtain it.  He has an earning capacity and allowance has to be made for the possibility that he will obtain a suitable position which will give him full time work or that he will obtain part time work.  If he completes his course at the TAFE this should provide him with a better chance of  obtaining work within his capacity.

[90]      It must also be borne in mind that as he grew older the work of a joiner may have been less attractive to him or he may have sought or been compelled to find lighter work.  There as I have already indicated some factors which might militate against him obtaining work now in the fields in which he is capable physically working.

[91]      All in all he must be regarded as having a substantial loss of his earning capacity.

[92]      There are the ordinary contingencies and vicissitudes to be taken into account. 

[93]      Doing the best I can I allow $500 per week for 12 years which produces a discounted figure of $235,000, which I allow for future loss of earnings.

[94]      I allow superannuation at 9 per cent on past and future economic loss producing figures of $14,400 and $21,150 respectively.

[95]      Turning to special damages, I allow the sums paid to the plaintiff or on his behalf by WorkCover, namely medical expenses of $4,514.15, rehabilitation expenses of $912.34 and travel expenses of $1,168.79, producing a total of $6,595.28.

[96]      I allow the Fox & Wood component of $5,905.20.

[97]      There is a claim for medical expenses, which if I understand it correctly, is in the sum of $1,360.95, which I allow.

[98]      There is also a claim for travelling expenses in the sum of $187, which was not the subject of any real challenge and a claim of $540.65 for expenses met by the plaintiff in endeavouring to get back into the workforce.

[99]      There is a claim under the care and assistance head in relation to lawn mowing expenses in the sum of $682.50, which the plaintiff deposed to and which I allow.

[100]      The plaintiff also claims $964.51 for pharmaceutical and associated expenses.  These are detailed at page 26 and 27 of the statement and I allow these.

[101]      I allow interest on the above amounts insofar as they have been paid by the plaintiff a figure of $750. 

[102]      So far as the future is concerned, there is a claim for future pharmaceuticals based upon $10 per fortnight.  As well there is a claim for ongoing expenses for the costs of lawn mowing.

[103]      There is a very large claim for future expenses pleaded in the Statement of Claim but there is no evidence before the Court which would support that sum

[104]      Doing the best I can, based upon the plaintiff's cost of Panadol per fortnight and the costs of lawn mowing incurred by him in the more than 6 years since the accident of $682, I allow for the future, the sum of $4,000 to cover both of these heads.

[105]      The total of these figures is $516,066.09.

[106]      The judgment against the first defendant will be in a sum which deducts from the above total, the sum of $30,020.53.

[107]      I give judgment for the plaintiff against the first defendant in the sum of $486, 045.56.

[108]      I give judgment against the second, third and fourth defendants in the sum of $516, 066.09.

[109]      I give the parties liberty to apply in writing within 14 days on the issue of costs.