McLean v Star City Pty Ltd (No 2)
[2008] NSWDC 224
•30 September 2008
CITATION: McLean v Star City Pty Ltd (No 2) [2008] NSWDC 224 HEARING DATE(S): 30.9.08 EX TEMPORE JUDGMENT DATE: 30 September 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1 The order for costs made on 13.8.08 is varied to provide that the plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis up to and including 19 March 2007 and on an indemnity basis thereafter. This order excludes orders for costs made in favour of the plaintiff in relation to various interlocutory applications.
2 The plaintiff is to pay the defendant's costs of the current application on an ordinary basis.
3 Noting the notice of intention to appeal, the exhibits will be retained until further order.
CATCHWORDS: COSTS - Calderbank offers and whether order for indemnity costs appropriate PARTIES: John McLean - Plaintiff
Star City Pty Ltd - DefendantFILE NUMBER(S): Newcastle 518/05 COUNSEL: C A W Hart - Plaintiff
M H Best - DefendantSOLICITORS: Bale Boshev - Plaintiff
Wotton & Kearney - Defendant
JUDGMENT
1 The defendant provided to the Court on 30 September 2008 a chronology indicating that it commenced to make offers to the plaintiff on 3 January 2006 and made its last offer to the plaintiff on 28 February 2008. Those offers were Calderbank offers. Accompanying two of those offers were offers of compromise, one dated 4 August 2006 and another, 19 March 2007.
2 The defendant asks that I order the plaintiff to pay its costs on an indemnity basis from 4 January 2006.
3 This application is opposed by the plaintiff. The plaintiff opposes any order for indemnity costs. The opposition is based upon what is said to be the reluctance of the defendant to produce documents that were relevant to the plaintiff’s claim, firstly that the injury was the result of a breakdown in the operation of the handrail of the escalator upon which he was travelling at the time of the incident, and secondly, as to records of prior incidents involving escalators at the Star City Casino operated by the defendant.
4 It is true that in publishing my reasons I accepted that there was a momentary break in the operation of the handrail. I did not, however, find that this was the result of any mechanical defect in the escalator itself, but rather, the result of pressure being applied by another patron, Mr Toutounjian, when he fell on the escalator as a result of ill health.
5 As far as records of prior incidents were concerned, it became apparent during the course of the hearing that there had been one prior incident some time in June 2000 on a different escalator to that upon which the incident involving the plaintiff occurred. This occurred some three years before this incident, and it would not have influenced the outcome, because the circumstances were different.
6 It was apparent that there were other documents prepared for the defendant that were not produced. One in particular was that containing handwritten notes that were taken by a person, ostensibly acting on behalf of the defendant, who was seen on a DVD of the incident taking notes in the course of a conversation with the plaintiff and his wife, where they are seen acting out their version of what had occurred.
7 Those handwritten notes, had they been produced, might well have been decisive in determining the plaintiff’s approach to the proceedings. No explanation for their non-production was provided by the defendant.
8 However, the plaintiff, by January 2007, had had the opportunity to view the CCTV footage that was contained in the DVD in evidence in the proceedings. His argument was that the footage had been tampered with and did not accurately reflect what had occurred, his version of events being entirely different to that which was depicted in that footage, and different to the evidence given by Mr Btaiche, who was accepted by me as a witness of credit.
9 From January 2007, therefore, it ought to have been apparent to the plaintiff that there was graphic material that indicated that the event had not occurred in the fashion that he was asserting.
10 In addition to this, the plaintiff’s claim in damages, in my view, had little prospect of succeeding. The evidence at no stage established a connection between the incident and the major part of his claim, namely, the requirement for significant surgery to his cervical spine. The material that the plaintiff himself ought to have been aware of suggested that this was a longstanding condition of the plaintiff’s spine and that what occurred to his neck some time after the incident was something that he always, regardless of the incident, was likely to have suffered.
11 It appears to me, therefore, that the plaintiff, acting reasonably, regardless of material concerning prior incidents and questions relating to the records of this particular incident, ought to have recognised two substantial weaknesses in his case, namely that the CCTV footage showed a momentary interruption in the operation of the handrail only, and ought to have appreciated, at least by March 2007, that the position as far as his damages were concerned was precarious. At that stage, acting reasonably, the plaintiff ought to have been persuaded that the offer of compromise of $5,000 plus costs and disbursements to be agreed or assessed was one to be taken seriously.
12 In those circumstances, it seems to me appropriate that the order for costs be varied to provide that the plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up to and including 19 March 2007, and on an indemnity basis thereafter. This order excludes orders for costs made in favour of the plaintiff in relation to various interlocutory applications made to the court.
13 The plaintiff is to pay the defendant’s costs of the current application on an ordinary basis.
14 Noting the notice of intention to appeal, the exhibits will be retained until further order.
0
0
0