Luongo v Clarke (No 2)

[2018] ACTSC 108

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Luongo v Clarke (No 2)

Citation:

[2018] ACTSC 108

Hearing Date:

On the papers

DecisionDate:

27 April 2018

Before:

Elkaim J

Decision:

See [19]

Catchwords:

TORTS – NEGLIGENCE – Contributory negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages

PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1725

Cases Cited:

Luongo v Clarke [2018] ACTSC 81

Symes v Commonwealth of Australia (1987) 89 FLR 356
Yogini v Eveille [2006] ACTSC 23

Parties:

Giuseppina Luongo (Plaintiff)

William Grant Clarke (Defendant)

Representation:

Counsel

Mr A Muller (Plaintiff)

Mr R Gambi (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

McCabes Lawyers (Defendant)

File Number:

SC 140 of 2017

ELKAIM J:

1. On 29 March 2018, I gave judgment in this matter in favour of the plaintiff in the sum of $119,059.80 (Luongo v Clarke [2018] ACTSC 81).

1. The judgment sum was a result of a 70% reduction from the figure of $396,866. The reduction was brought about by my assessment of contributory negligence.

1. The civil jurisdiction of the Magistrates Court is $250,000. Where a matter is litigated in the Supreme Court, costs will normally follow the event, except where the amount recovered is less than $175,000. In that case, r 1725 of the Court Procedures Rules 2006 (ACT) comes into play and the entitlement to costs will be reduced. There is, however, a discretion to make a different order.

1. In the principal judgment I made an order that, subject to further order, the defendant pay the plaintiff’s costs. I made these observations about r 1725, at [85] – [86]:

In the normal course, costs would follow the event. However, by reason of r 1725 of the Court Procedures Rules 2006 (ACT), the plaintiff’s costs would normally be reduced. The rule does, however, allow for a discretion which, in my view, should be exercised in the plaintiff’s favour. This is because the full value of the case, before the reduction is made for contributory negligence, would have entitled the plaintiff to a normal costs order.

Contributory negligence was a hard fought and real issue in this matter, which was ultimately decided on the whole of the evidence. My findings, as discussion during the case would illustrate, could have been different. My preliminary view is that the case was appropriately brought in the Supreme Court. I will, however, hear any submissions for a different costs order.

1. At the request of the defendant, I allowed further submissions to be made concerning my preliminary view. Both parties have made submissions. The plaintiff submits that I should maintain the order already made. The defendant submits that I should not exercise my discretion to alter the effect of r 1725.

1. The defendant’s submissions may be summarised in this way:

(a)The parties were in broad agreement about the quantum of damages. Even on the plaintiff’s best case, damages were in the order of $483,000.

(b)Although not initially conceded by the plaintiff, a finding of contributory negligence was inevitable.

(c)The extent of contributory negligence was always going to be substantial (at least 50%) and therefore the final result was almost certainly going to fall under the jurisdictional limit of the Magistrates Court.

(d)There was no other reason why the matter could not have been commenced in the Magistrates Court.

1. The plaintiff’s response was that, although a finding of contributory negligence may have been likely, its extent was unknown and therefore it was prudent to commence the litigation in the Supreme Court.

1. I observe that on the total of $396,866, contributory negligence would have had to be less than approximately 44% to achieve a result in excess of $175,000. Had the full extent of the plaintiff’s submissions on damages been accepted, contributory negligence would have had to have been assessed at about 64% in order for the final result to have exceeded $175,000.

1. The plaintiff referred to authorities to suggest that where the assessment of damages (before any reduction for contributory negligence) exceeds the limit in the Magistrates Court, this is a powerful factor in favour of the exercise of the discretion (Symes v Commonwealth of Australia (1987) 89 FLR 356 and Yogini v Eveille [2006] ACTSC 23).

1. The plaintiff further pointed out that she had no recollection of the accident and, except to the extent revealed by the defendant’s expert reconstruction report, did not know the detail of the case to be presented by the defendant.

1. The difficulty I have with the plaintiff’s approach is that I agree with the defendant’s submission that a finding of contributory negligence was inevitable and would be substantial.

1. There was little doubt that a finding would be made that the plaintiff, at the time of the collision, was walking some distance into the right-hand lane of the roadway (in an uphill direction).

1. The only suggestion made as to why she might have been following this path was that there was a section of broken roadway (effectively a large pothole) which might have caused her to follow a path to the left of her normal route. This possibility cannot be excluded but, even if it was the case, it is influenced by two factors:

(a)Most importantly, both the view and the photographs plainly indicated that there was no reason why the plaintiff could not have passed the pothole by walking on its right hand side.

(b)The point of collision was not alongside the pothole. It was further up the hill. If the plaintiff was walking around the pothole, there is no reason why she could not have moved to her right once she had moved beyond it. It is to be recollected that another cyclist had, shortly before the collision, passed her and remonstrated with her about her position on the roadway. While, as I said in the primary judgment, she may not have heard what the cyclist said (at [27]), she would certainly have been aware that cyclists were descending the hill at speed.

1. In my view, a finding of contributory negligence of no less than 50% should have been contemplated by the plaintiff as an inevitable result of the litigation. Had this minimum percentage been applied, the resulting verdict would have been in excess of $175,000. The question that then arises is whether this fact, perhaps also taking into account that the plaintiff might have been awarded a larger sum of damages, is enough to engage the discretion provided for in r 1725(3).

1. This is to some degree a balancing act between the plain purpose of the rule, to ensure that matters of a certain size are pursued in the Magistrates Court, and the responsible pursuit of the claim with the intent of ensuring the plaintiff received a verdict to the full extent of her entitlement.

1. Rule 1725(3) provides for an open-ended discretion. In other words, the exercise, or otherwise, of the discretion is not limited to a choice between 75% of costs and 100% of costs. The discretion allows for “a different amount for the costs and disbursements” so that it is open to the court to choose any percentage (between 75% and 100%) in order to achieve a just result.

1. In my view, in order to resolve the balance that I have described above, an appropriate and just result is to order that the plaintiff is entitled to 90% of the costs and disbursements that the plaintiff would have been entitled to recover in the Supreme Court had the judgment be more than $250,000.

1. As far as the costs of this application are concerned, there has been a degree of success by both parties. I think each party should pay its own costs associated with the application.

1. I make the following orders:

(i)In lieu of the costs order made in the primary judgment, the defendant is to pay the plaintiff’s costs assessed at 90% of the costs and disbursements that the plaintiff would have been entitled to recover in the Supreme Court had the judgment been more than $250,000.

(ii)Each party is to pay its own costs associated with the application for a different costs order.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 26 April 2018