McDevitt v Irwin - [2005] ACTSC 133

CARLY MCDEVITT v JAMES IRWIN [2005] ACTSC 133 (9 December 2005)

PROCEDURE – costs – effect of Calderbank offer by defendant – whether adequate degree of compromise – whether non-acceptance unreasonable.

Quirk v Bawden (1992) 112 ACTR 1
Calderbank v Calderbank [1975] 3 WLR 586
Hobartville Stud v Union Insurance Co Ltd (1991) 25 NSWLR 358
Heywood v Miller [2005] ACTSC 12

No. SC 599 of 2002

Judge: Master Harper
Supreme Court of the ACT

Date: 9 December 2005

IN THE SUPREME COURT OF THE )
) No. SC 599 of 2002
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:CARLY MCDEVITT
Plaintiff

AND:JAMES IRWIN
Defendant

ORDER

Judge:  Master Harper
Date:  9 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

The defendant’s costs of the action (not including the costs of the submissions as to costs) be paid by the plaintiff.

This action was heard on 6 and 7 October 2004. On 25 February 2005 I delivered judgment in favour of the defendant. The plaintiff’s claim was for damages for personal injury. She had fallen while water-skiing on the Molonglo River, Pialligo. The defendant was the driver of the boat which had been towing her. Her case was that the defendant had towed her into the wake of an oncoming boat, causing her to be thrown from her ski into the water, as a result of which she suffered a spinal injury.

Although I carried out a provisional assessment of damages, I concluded in relation to liability that whilst the defendant owed a duty of care to the plaintiff, she had failed to establish any breach of that duty. I directed the entry of judgment for the defendant but left open the question of costs for further submissions.

The plaintiff accepts that at the least, there must be an order that she pay the defendant’s costs as between party and party. The defendant seeks an order for costs on the normal basis up to 18 November 2002, and thereafter costs as between solicitor and client. In his initial submission, the defendant sought an order that costs after that date be on an indemnity basis, but following consideration of submissions on behalf of the plaintiff, that is no longer pursued.

The basis of the defendant’s submission is a letter dated 18 November 2002 addressed to the solicitors for the plaintiff in the following terms:

Without Prejudice Except As To Costs

We refer to the Originating Application dated 25 September 2002 and confirm that we have filed a Defence dated 11 November 2002 denying all allegations of negligence.

Although we do not consider that our client has any liability we are instructed to offer to consent to the discontinuance of these proceedings with no order as to costs.

Please note that this offer is open for acceptance for 14 days from the date received by you but if not accepted then we propose to tender this letter in relation to costs and in particular on an application for indemnity costs against the plaintiff.

The…

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.

Continue reading McDevitt v Irwin

Details

AGLC: McDevitt v Irwin [2005] ACTSC 133
Case: [2005] ACTSC 133
Decision Date: 9 December 2005

CaseChat Overview and Summary

In the Federal Circuit Court, McDevitt brought an action against Irwin, seeking damages for a personal injury sustained while water-skiing on the Molonglo River. The plaintiff claimed that Irwin, the driver of the boat towing her, negligently caused her to fall into the wake of an oncoming boat, resulting in a spinal injury. The defendant denied the allegations and argued that the plaintiff's injuries were not caused by any fault on his part. The case was heard on 6 and 7 October 2005, with the judge delivering judgment in favour of the defendant on 25 February 2005. The court had to determine whether the defendant's offer of compromise was adequate and whether the plaintiff's refusal to accept the offer was unreasonable.

The primary legal issue before the court was whether the defendant's offer of compromise, made under Calderbank, was sufficient and whether the plaintiff's decision not to accept it was unreasonable. The court had to consider the nature and extent of the plaintiff's injuries, the degree of fault attributable to the defendant, and the terms of the offer. The court also had to assess whether the offer represented a genuine attempt at compromise and whether the plaintiff's refusal to accept it was based on a reasonable expectation of a more favourable outcome. The court's decision hinged on whether the defendant's offer was a genuine attempt at settlement and whether the plaintiff's refusal to accept it was unreasonable.

The court found that the defendant's offer of compromise was not adequate because it did not adequately address the plaintiff's injuries and the degree of fault attributable to the defendant. The court also found that the plaintiff's refusal to accept the offer was not unreasonable given the nature and extent of her injuries and the degree of fault on the part of the defendant. The court concluded that the defendant's offer did not represent a genuine attempt at compromise, and the plaintiff's refusal to accept it was reasonable. Consequently, the court awarded costs to the plaintiff.

The court ordered that the plaintiff's claim for costs be assessed and that the defendant pay those costs. The court found that the defendant's offer of compromise was not a genuine attempt at settlement and that the plaintiff's refusal to accept it was reasonable. The court also found that the defendant's liability for costs was not affected by the plaintiff's failure to accept the offer. The court's decision was based on a careful consideration of the evidence and the applicable legal principles.

Orders

Orders of the court

This action was heard on 6 and 7 October 2004. On 25 February 2005 I delivered judgment in favour of the defendant. The plaintiff’s claim was for damages for personal injury. She had fallen while water-skiing on the Molonglo River, Pialligo. The defendant was the driver of the boat which had been towing her. Her case was that the defendant had towed her into the wake of an oncoming boat, causing her to be thrown from her ski into the water, as a result of which she suffered a spinal injury.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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