Nunn v Hardcastle
[2000] WADC 187
•20 JULY 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NUNN -v- HARDCASTLE [2000] WADC 187
CORAM: DEANE DCJ
HEARD: 12 JULY 2000
DELIVERED : 20 JULY 2000
FILE NO/S: CIV 3998 of 1977
BETWEEN: ADRIAN LEITH NUNN
Plaintiff
AND
PHILLIP HOBSON HARDCASTLE
Defendant
Catchwords:
Practice and procedure - Costs - Range of issues raised by plaintiff at trial relevant to failure to warn on part of defendant in medical negligence action - Plaintiff successful overall on basis of a relatively narrow range of issues - Appropriate costs order
Legislation:
Nil
Result:
Plaintiff entitled to recover only 70 per cent of his costs
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr D Wallace
Solicitors:
Plaintiff: Macdonald Rudder as agents for William Graham & Carman
Defendant: Edwards Wallace
Case(s) referred to in judgment(s):
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Phillips Fox (a firm) v Westgold Resources NL & Ors, unreported; FCt of WA; Library No 980710; 9 December 1998
Case(s) also cited:
Nil
DEANE DCJ: On 7 July 2000 I delivered a judgment in this matter and ordered that the defendant pay to the plaintiff the sum of $52,863.85 by way of damages for personal injury. Although the plaintiff succeeded, in that he was awarded a sum of damages, the defendant now argues that it should not have to pay the whole of the costs of the plaintiff because the plaintiff succeeded only in relation to a small number of issues raised in the pleadings. Further, it is argued that a significant amount of time was occupied in dealing with issues upon which the plaintiff failed to succeed. Whilst the defendant seeks a modification of the costs order on this basis, by way of an exercise of the Court's discretion in relation to costs, it does not seek an order that the plaintiff pay any of the defendant's costs of the action.
There is no real argument as to the principles of law that apply in relation to the issue of costs. It is conceded by the plaintiff that the general rule pursuant to O 66 r 1(1) whereby the successful party to any action will recover their costs is subject to a wide discretion. One such exception to the general rule occurs where a party, although successful, nonetheless fails on other issues which it raises. In those circumstances a court pursuant to O 66 r 1(3) can, in its discretion, order the successful party to pay the costs of those issues where it has been unsuccessful. The plaintiff argues that although a number of issues were raised on the pleadings, essentially the case concerned allegations that the defendant failed to warn the plaintiff of a variety of matters prior to the plaintiff undergoing surgery and ultimately the plaintiff succeeded on the basis that the Court found that there were in two specific instances a failure to warn on the part of the defendant. In addition, the plaintiff argues that the hearing of evidence in relation to those issues where the plaintiff did not succeed, in any event did not take up an inordinate amount of the Court's time.
Applications of this nature, whilst necessarily involving consideration of the relevant legal principles, also require a practical approach to be adopted so that the realities of the matter are addressed. As his Honour Justice Anderson observed in (Phillips Fox (a firm) v Westgold Resources NL & Ors, unreported; FCt of WA; Library No 980710; 9 December 1998). "The Court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar perfect orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough". The need to ensure substantial justice is done without involving intricate and time consuming teasing out of issues that either failed or succeeded on the pleadings is reflected in his Honour's judgment when he referred to Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 at 574 where the Court said:
"Thus it may be that although it is strictly correct to say that different causes of action are involved, there may have been only one contest in substance. This will often be so when all causes of action arise out of the one cause of dealings, the one transaction or the same fact. Where that is the situation, there will usually be one order for the general costs of the action, moulded as necessary to ensure that, however rough and ready it may be, substantial justice is done."
In this case the plaintiff alleged the defendant was negligent and in breach of the duty of care owed to the plaintiff for the reasons set out in par 8 and par 9 of my judgment, which essentially reflect what is pleaded in the statement of claim. As counsel for the defendant pointed out in the submissions filed on behalf of the defendant, the plaintiff did not succeed in relation to a number of issues raised. The defendant was not found to be negligent in failing to undertake appropriate investigative pre‑operative procedures such as discography or MRI nor was he negligent or in breach of his duty because the GRAF procedure did not totally or partially alleviate the plaintiff's symptoms. The plaintiff did not succeed in establishing that the pedicle screw at S1 which had breached the end plate had caused or contributed to the plaintiff's pain state as alleged. Furthermore, although the plaintiff alleged that the defendant failed to inform him that the surgery would or might cause further damage to the plaintiff's spine or exacerbate his symptoms, he did not succeed in this argument. It was alleged by the plaintiff that the defendant failed to fully and properly advise the plaintiff of a range of material matters prior to the plaintiff undergoing surgery, so as to allow the plaintiff to make an informed judgment as to whether or not he would undergo the GRAF procedure. The plaintiff did not succeed in establishing that he was not informed of the scope of the operation the defendant intended to perform upon him, nor did he succeed in establishing that he was not informed by the defendant that he may suffer further damage to his spine or exacerbate symptoms of pain in that area as a result of undergoing the GRAF procedure. The plaintiff did not establish that the defendant failed to advise him that surgery by way of the GRAF procedure could lead to an increased rate of degeneration of the L5/S1 intervertebral disc, nor did the plaintiff succeed in establishing his allegation that he was not informed that the procedure could lead to a weakening of spinal muscles in the area where the GRAF was performed. The only complication which the Court found the defendant had failed to inform the plaintiff about in full and explicit terms was the increased prevalence of post‑operative leg pain in patients who had undergone the GRAF procedure. The only other area where the plaintiff succeeded in establishing failure to inform on the part of the defendant concerned the defendant's failure to advise the plaintiff at the time of their first consultation in September 1992 that at that time the GRAF procedure was the subject of a moratorium at St John of God Hospital. The defendant did, however, on the findings in my judgment inform the plaintiff that the procedure was the subject of a review at that time. In considering the above it can be seen that although the plaintiff did receive an award of damages and in that sense he was successful in his claim, that success was relevant to only a small number of allegations raised in his case and in that regard I accept the defendant's submission that the plaintiff was successful on a comparatively narrow point.
In the end I do not believe it is possible to say that the length of the trial, which took some 10 days, would have been substantially reduced if the trial had been limited to the issue of consent only but I take the view that possibly would have been a little shorter.
I accept the defendant's submission that a number of documents disclosed prior to trial clearly suggested that the plaintiff's symptoms pre‑ and post‑surgery were substantially the same and as a result time spent on argument concerning whether or not the plaintiff's symptoms were considerably worse after surgery, which was the plaintiff's case, did not take this into account. Again it is difficult to say how much time was spent at trial in examining this issue, although I do not consider that the trial was unnecessarily lengthened by a consideration of such matters.
In the end the evidence given by the accountant, Mr Rigby, called on the plaintiff's behalf, to establish both past and future economic loss did not advance the case a great deal. I accept the submission on behalf of the plaintiff's counsel that the Court certainly relied on Mr Rigby's evidence calculating a small award made for past economic loss, but it should be noted at the conclusion of the trial the plaintiff's counsel conceded that Mr Rigby's evidence as to future economic loss was not of great assistance to the Court. It was conceded that any award made under this head of damage could only be done on a global basis and would have to be less than the amounts referred to by Mr Rigby in his evidence.
Whilst I do not consider that it is possible to say with certainty that the length of the trial was significantly extended by the amount of time taken up examining issues upon which the plaintiff failed to succeed, I am of the view in all of the circumstances that the fact that the plaintiff succeeded on such a narrow range of issues should be reflected in the costs order made. I say this mindful of the submission made on behalf of the plaintiff that it is not always the case that a plaintiff succeeds on every issue at trial. This is a case where the plaintiff in generally succeeding on the issue of failure to warn has nonetheless failed to establish an array of allegations falling under the umbrella of that general allegation.
I have noted earlier in these reasons that it is not possible to be mathematically precise in moulding an order for costs in an application such as this, but in all of the circumstances and taking into account the respective submissions of counsel and in an endeavour to be as fair as possible, I consider that a proper exercise of the Court's discretion in relation to costs is reflected in an order that the plaintiff recover only 70 per cent of his trial costs.
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