Krzysztof Wieczorek v General Motors Holden Automotive Ltd No. 4151 Judgment No. SCGRG 88/158 Number of Pages 6 Negligence Costs

[1993] SASC 4151

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BURLEY J

CWDS
Negligence - Industrial accident - exacerbation of injury - four incidents relied upon - plaintiff successful only as to one incident - previous payment of Worker's Compensation - deduction of compensation from damages - apportionment of part of compensation to incident of exacerbation. Workers' Compensation Act (SA) s.82(6). Millard v SA (1992) 168 LSJS 94, considered.
Costs - Plaintiff sued in the Supreme Court - small award of damages - unable to recover costs unless Court orders to the contrary - discretion - nature of the discretion - costs refused. Defendant seeks costs of action subject to deduction for costs where plaintiff successful - discretion as to costs - costs awarded to defendant. Local and District Criminal Courts Act (SA) s.42 and Supreme Court Act (SA) s.40.

HRNG ADELAIDE, 30 August 1993 #DATE 2:9:1993
Counsel for appellant:     Mr. A. Cameron with
   Miss Perry
Solicitors for appellant:    Paul Kirk Roberts
   and Co
Counsel for respondent:     Mr. M. Frayne
Solicitors for respondent: Finlaysons

ORDER
Judgment for plaintiff.

JUDGE1 BURLEY J In this matter I published reasons on 19th August 1993 setting out my findings in relation to the plaintiff's claim for damages for personal injury arising out of a series of work incidents. I was unable to enter judgment because of the need to hear counsel in relation to whether or not deductions were to be made from the assessed damages pursuant to the provisions of section 82(6) of the Workers' Compensation Act (the Act). In addition, I thought it appropriate to hear further submissions from counsel in relation to the award of special damages. 2. The matter was called on again on 30th August 1993 when further submissions were heard. Mr. Cameron, counsel for the plaintiff, informed me that he did not wish to put any submissions. I then heard Mr. Frayne, counsel for the defendant. With the consent of the plaintiff he tendered further documentary evidence. Exhibit D44 is a copy of an application for compensation made in the Industrial Court of South Australia and a copy of minutes of order dated 28th October 1988. The application for compensation was made in respect of incidents on 28th February 1985 and subsequent aggravation on 15th August 1986 and 30th January 1987. It was common ground that these incidents constitute three of the four incidents pursued in the proceedings before me. The minutes of order record that the employer, the defendant in these proceedings and the respondent in the proceedings in the Industrial Court, was ordered to pay the sum of $35,900 representing an assessment of compensation pursuant to sections 69 and 70 of the Workers Compensation Act. Mr. Frayne also tendered in evidence a document entitled "Record of Weekly Payments" which is exhibit D45. It sets out the amount of weekly payments paid by the defendant to the plaintiff between August 1986 and November 1986. They total $1972.55. 3. Mr. Frayne submitted that it was not possible, by reference to the minutes of order or any of the other evidence adduced at trial, accurately to apportion any particular aspect of the lump sum of $35,900 to the incident of the 15th August 1986. He submitted that I should, by reference generally to the evidence adduced at trial, apportion an amount to the incident of 15th August 1986, to reflect the extent of the exacerbation of injury sustained in August 1986 when compared with the other incidents complained of by the plaintiff. He submitted that the incident of August 1986 was a relatively minor incident and that the sum of $1500 should be apportioned and deducted from the sum of $1500 allowed by me, as appears from my reasons, for pain and suffering. 4. Mr. Frayne next dealt with the question of damages for past economic loss. He submitted that from the sum of $3855.12 allowed by me for past loss of earning capacity I should deduct the sum of $1972.55 being the amount of weekly payments by the defendant as evidenced by exhibit D45. 5. On the question of special damages he submitted that I should make no allowance because, to the extent they were incurred, they have been paid by the defendant. It was not submitted to the contrary by Mr. Cameron. 6. The effect of Mr. Frayne's submissions was that I should deduct from the amount of damages awarded in these proceedings the sum of $3472.55. 7. In reply, Mr. Cameron submitted that no deduction should be made from the damages for pain and suffering. He drew my attention to the provisions of section 70 of the Act which provides for an assessment for "permanent injury". He submitted that the damages awarded by me were in respect of an injury which could not be said to be permanent. 8. Section 82(6) provides that any sum received by a workman from an employer by way of compensation "in respect of an injury" is to be deducted from the amounts recovered at common law "in respect of the same injury". The amount awarded in the Industrial Court pursuant to section 70 of the Act was in respect of the incident of the 28th February 1985 and "subsequent aggravation on 15/89/86 and 30/1/87." I infer from what is contained on the application for compensation (D44), that the amount awarded pursuant to section 70 covered the initial incident and the two incidents whereby an aggravation took place. The proceedings before me and the proceedings in the Industrial Court have in common the incident of 15th August 1986. The plaintiff has been awarded damages in respect of that incident in these proceedings. The fact that the compensation obtained pursuant to section 70 is in respect of permanent injury does not detract from the operation of section 82(6) which makes no distinction between permanent and non-permanent injury. Consequently, I do not accept Mr. Cameron's submission that no deduction should be made in these proceedings. 9. Section 82(6) of the Act is capable of relatively straightforward application in a situation where, in the Industrial Court proceedings and the common law proceedings, there is only one injury. Where, as in this case, there was an initial injury which was subsequently exacerbated, it is somewhat more difficult to apply the provisions of the section. I derive some assistance from what was said by the Full Court in Millard v. SA (1992) 168 LSJS 94 at p 98. I consider that the manner contended for by Mr. Frayne constitutes a correct approach. It therefore becomes necessary to apportion to the incident of 15th August 1986 a portion of the compensation awarded pursuant to section 70 of the Act in the Industrial Court proceedings. Mr. Frayne submitted that the sum of $1500 was appropriate but I do not agree with this contention. When looked at in context, the incident of 15th August 1986 was relatively minor and I consider that the sum of $1000 should be apportioned for the purposes of section 82(6) of the Act. 10. I should also mention that even though counsel dealt with the application of section 82(6) of the Act by reference, first, to general damages and second, to damages for past loss of earning capacity, it should not be thought that section 82(6) of the Act requires such an approach. On the contrary, the subsection requires one sum, being an amount of compensation, to be deducted from another sum being an amount of damages in respect of the same injury. However, for the purposes of dealing with the point, it was convenient to isolate the two aspects of the assessment. 11. Mr. Cameron put no submissions in relation to Mr. Frayne's contention that the sum of $1972.55 should be deducted from the damages awarded for past loss of earning capacity. However, having examined the contents of exhibit D45, the record of weekly payments, it is evident that the amounts of compensation paid from the date that the exacerbation occurred (15.8.66) and the end of the twelve week period, the sum of $1972.55 was paid by way of weekly payments. I had assumed when preparing my earlier reasons that the plaintiff had been off work during the whole of the twelve week period and that he had been paid the appropriate weekly wage during that period. It was for that reason that I awarded the gross amount of $3855.12 rather than making a deduction for taxation. It therefore seems to me that I should reconsider the position with regard to past economic loss in light of the further evidence provided by exhibit D45. It appears from the contents of that exhibit, and I infer, that the plaintiff was not away from work for the whole of the period commencing 9th August 1986 to 17th November 1986. I consider that I must also infer that, for the times when he was not in receipt of compensation during that period, he was at work receiving his normal wage entitlement. In those circumstances the measure of his loss of earning capacity from 15th August 1986 for twelve weeks thereafter amounts to $1972.55. 12. For these and my previously published reasons, I assess damages in the sum of $1500 for pain and suffering and in the sum of $1972.55 for loss of earning capacity. This amounts to $3472.55. Pursuant to section 82(6) of the Act, the sum of $2972.55 should be deducted, resulting in a judgment in favour of the plaintiff in the sum of $500. There will be judgment accordingly. 13. As to costs, Mr. Cameron submitted that the defendant should pay the plaintiff's cost of action. Counsel respectively referred to section 42 of the Local and District Criminal Courts Act and section 40(2) of the Supreme Court Act. Both provide that in given circumstances the plaintiff shall not be entitled to costs unless the Court orders to the contrary. 14. I do not now need to decide whether section 40(2) of the Supreme Court Act is retrospective in its operation because, in my view, whichever provision is applied, the exercise of the discretion is essentially the same. In each instance the plaintiff must satisfy me that the circumstances are such that an order for costs should be made in favour of the plaintiff notwithstanding that the amount of the judgment falls far below the limits prescribed by either section. 15. Mr. Cameron relied upon a number of matters in support of his contention that the defendant should pay the plaintiff's costs of action. He submitted that it was necessary to maintain the proceedings in the Supreme Court because it was a difficult matter. Although the action was relatively complex and the hearing extended over some 3 weeks, it was not so difficult that it required it to be dealt with in the Supreme Court. In addition, in view of my findings set out in my earlier reasons, the difficulty was largely of the plaintiff's own making. He has succeeded in only 1 of 4 alleged incidents. In such a case, a plaintiff can hardly be heard to say that because the action was a complex one he should obtain his costs where the complexity of the matter arose largely because of the inclusion of incidents where no liability was established by the plaintiff. 16. It was also said by Mr. Cameron that the plaintiff's claim, as pleaded, would have given rise to a judgment of several hundred thousand dollars and consequently, it was appropriate to bring the action in the Supreme Court. However, the cogency of that submission is dependent upon a successful result as to most if not all of the matters pleaded. In this matter the reverse applies. In my view, the effect of either section denying costs is that a plaintiff takes the risk of being in the wrong Court if the plaintiff fails to recover the prescribed amount or more. The fact that the pleadings, if made out, would give rise to a greater award begs the question. It follows that no ground for an award of costs is disclosed by this submission. 17. It was also submitted by Mr. Cameron that it was necessary to adduce evidence as to the entire medical history of the plaintiff because, without such a history, the Court would not have been able to have a proper appreciation of the extent of the effects of the exacerbation of 15th August 1986. I reject this submission. True it is that it would have been necessary for the plaintiff to adduce evidence of his medical history and no doubt he would have been cross-examined upon it. However, I consider that had this action proceeded as a claim for damages in respect of the one incident of 15th August 1986, the matter would have taken no more than 2 days in Court as opposed to the 3 weeks that it actually took. 18. Mr. Cameron next submitted that the plaintiff had virtually been required, by the conduct of the defendant, to maintain the proceedings in the Supreme Court. He said that at no stage had the defendant put an offer in settlement of the claim. In my view such a submission is without merit. This is particularly so because it was not suggested by Mr. Cameron that had an offer of $500 plus costs been made by the defendant, the plaintiff would have accepted it. In the absence of such a statement the obvious inference is that the plaintiff would not have accepted such an offer and it follows that the reason for the continued prosecution of the proceedings was because the plaintiff sought to recover more than that sum. In any event, the absence of an offer by the defendant does not in itself constitute a ground for submitting 8 that a plaintiff, who has achieved only limited success in the action, should recover his costs. Indeed, the absence of an offer by the defendant is at least in part explained by the limited result achieved by the plaintiff. 19. It was submitted by Mr. Cameron that the plaintiff was, in some way, taken advantage of by a wealthy defendant. I reject that submission out of hand. The defendant did no more than properly defend the proceedings brought against it by the plaintiff. It put the plaintiff to proof in relation to a number of important aspects, and rightly so, because at the end of the day the plaintiff has fallen short of the required degree of proof. I reject the contention that the length of the trial was caused by the lengthy cross-examinations of the plaintiff and his medical witnesses. The position taken by Mr. Frayne during the trial has been vindicated. His careful and searching cross-examinations revealed fundamental weaknesses in the plaintiff's case and cannot therefore be the subject of criticism. 20. I have dealt with above each of the contentions put forward by Mr. Cameron in support of his client's claim for costs. They do not, in my view, constitute, either individually or cumulatively, grounds for an award of costs. I therefore refuse the plaintiff's application for costs. In addition to contending that the plaintiff should not have his costs of action, Mr. Frayne contended that the plaintiff should pay the defendant's costs of action apart from the costs for the hearing of half a day, a concession he makes because the plaintiff was successful in respect of the incident of the 15th August 1986. In most cases it is undesirable to examine separately particular issues of a case for the purposes of awarding the costs of action in trial because the trial must be dealt with as a whole. To do otherwise, endless arguments on costs as to particular issues in relation to proceedings would result. However, in circumstances where, of many issues, the plaintiff has only been successful in relation to one, it would not, in my view, be inappropriate to consider whether costs should be awarded to a defendant notwithstanding that the plaintiff has obtained a judgment. In my opinion, this is such a case. The plaintiff has been almost completely unsuccessful. The defendant has been required, in the Supreme Court, to defend proceedings where, in all major issues, it has been successful. The discretion in relation to costs is unfettered, but it must be exercised judicially. Notions of fairness are, in my view, of paramount consideration. It would be unfair to deprive the defendant of an order for costs given the result of these proceedings. In my view, it is appropriate to award the costs of action to the defendant except for those costs relating to the incident of 15th August 1986. As I have said before, had that matter been tried separately, it would have taken no more than 2 days and probably less. It was a matter that could have been dealt with in the Magistrates Court. Rather than leave a taxing officer to make an estimate on taxation as to the extent of those costs, I think I am in a better position to make a proper estimate of those costs. I consider that the sum of $2000 should be deducted from the defendant's costs of action to reflect the fact that the plaintiff has been successful in respect of the incident of 15th August 9186. 21. For the above reasons I order:-
    1. That judgment be entered for the plaintiff against the
    defendant in the sum of $500.
    2. That the plaintiff's application for costs be refused.
    3. That the plaintiff pay the defendant's costs of action,
    to be taxed or agreed, less the sum of $2000.