Pantazis v JEZINA No 2

[2013] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

PANTAZIS & ANOR v JEZINA NO 2

[2013] SADC 68

Judgment of His Honour Judge Barrett

15 May 2013

PROCEDURE - COSTS

Cretazzo vombardi (1975) 13 SASR 4, considered.

PANTAZIS & ANOR v JEZINA NO 2
[2013] SADC 68

1. Following the delivery of my judgment in this claim for damages arising from a motor vehicle accident the plaintiffs seek orders for the whole of their costs on a solicitor/client basis.

2. The defendant accepts that pursuant to Rule 188(6)(b)(ii) the plaintiffs may have their costs on a solicitor/client basis because my orders for damages in respect of each plaintiff exceed the formal offers. However the defendant contends that the plaintiffs should receive only 75 per cent of their costs by virtue of my finding that two of the injuries suffered by the first plaintiff were not caused by the accident. I found that they were due to pre-existing degenerative conditions which became symptomatic after the accident.[1]

   [1] [118] and [123].

3. I do not accept the defendant’s submission. I explain why. While I found that the plaintiff’s right shoulder and lower back injuries were caused by a pre-existing degenerative condition, I found that the defendant had failed in its evidentiary burden to disentangle the issues of medical causation relating to the left shoulder.[2] I so found because I concluded that the plaintiff had established that the pre-accident degenerative condition and the shoulder injury caused by the accident were medically inseparable.[3] I further found that the plaintiff was suffering from a depressive illness whose causes were numerous but which included the accident. The depressive illness is exacerbating the plaintiff’s disabilities.[4]

   [2]    [117[.

   [3] [117].

   [4] [119] to [121]/

4. In the circumstances it seems to me inevitable that all of the plaintiff’s injuries and disabilities had to be discussed by both the lay and the medical witnesses at trial. It would have been unrealistic to present the cases for the plaintiff or indeed for the defendant without reference to the right shoulder and the lower back injuries and the disabilities. It is now unrealistic to try to identify the time spent in the trial on the injuries found not to have been caused by the accident. I think that the plaintiff’s whole medical condition was material to the decision in the case. As Jacobs J observed in Cretazzo v Lombardi (1975) 13 SASR 4 at 16.

   The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision in the case.

5. I decline to deduct any part of the plaintiff’s costs.

6. I also decline to order the plaintiff to pay the defendant’s costs of FDN18, the plaintiff’s application before trial to amend its Statement of Claim. The plaintiff sought to amend its claim to include the injuries I have found were not caused by the accident. A Master dismissed the plaintiff’s application to amend because the plaintiff abandoned it when the Master intimated that if he allowed the amendment, the trial might have to be adjourned. For various reasons the plaintiffs might have reasonably wished to avoid delaying the trial.

7. In the circumstances I make no order as to the costs of the application to amend the Statement of Claim.

   Orders

8. I order that the defendant pay the plaintiffs’ costs on a solicitor/client basis except in relation to FDN18 where I make no order as to costs.