Pollard v Simpson and Anor (No 2)

[2013] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:

Pollard v Simpson & Anor (No 2)  [2013] QDC 270

PARTIES:

Christine Mary Pollard

(Plaintiff)

v

John Frederick Simpson

(First Defendant)

&

AAI Limited ABN 48 005 297 807

(Second Defendant)

FILE NO/S:

106/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court in Mackay

DELIVERED ON:

1 November 2013

DELIVERED AT:

Maryborough

HEARING DATE:

On the papers

JUDGE:

Kingham DCJ

ORDERS:

Judgment is entered for Mrs Pollard in the sum of $395,301.92; and1.      

The second defendant must pay the plaintiff’s costs of and incidental to the proceedings assessed on the indemnity basis, if not agreed.2.      

CATCHWORDS:

CIVIL – COSTS – INDEMNITY COSTS – PLAINTIFF OFFER TO SETTLE – RULE 360 UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – where the plaintiff made an offer to settle before trial – where the second defendant did not accept that offer – where the plaintiff succeeded at trial – where judgment was no less favourable to the plaintiff than the terms of the offer to settle – where r 360 provides the costs order that must be made unless the court considers another order is appropriate – whether the plaintiff is entitled to costs – whether the costs should be awarded on the indemnity basis.

Uniform Civil Procedure Rules 1999 (Qld), r 360.

Ross v Suncorp Metway Insurance Ltd [2002] QCA 93, distinguished.

COUNSEL:

Mr J.J. Wiltshire for the Plaintiff.

Mr R.D. Green for the Defendants.

SOLICITORS:

Shine Lawyers for the Plaintiff.

Grant & Simpson Lawyers for the Defendants.

1. I found for Mrs Pollard on her claim for damages arising out of a motor vehicle accident and invited the parties to submit agreed orders on quantum, including interest, to give effect to my findings. Having heard from the parties, judgment will be entered for Mrs Pollard in the sum of $395,301.92.

1. The parties do not agree about the costs. Mrs Pollard seeks her costs on an indemnity basis. AAI Limited resists that application.

1. On 23 February 2012 Mrs Pollard offered to settle her claim for the sum of $300,000 plus costs assessed on the standard basis. The judgment sum awarded to her is more favourable than that offer. Pursuant to Rule 360 UCPR, the Court must award costs on the indemnity basis unless the defendant shows another order is appropriate in the circumstances.[1]

   [1] Rule 360 Uniform Civil Procedure Rules 1999 (Qld).

1. The defendant argues costs should be awarded on the standard basis for three reasons.

1. Firstly, it argues that limitations in Mrs Pollard's disclosure in relation to the claim for economic loss prevented the defendant from properly assessing that aspect of the claim. It relied on deficiencies in the material provided by Mrs Pollard to the forensic accountant engaged by her. They were identified in a letter from an accountant engaged by the defendant after it had signed the Request for Trial Date. During her evidence, Mrs Pollard explained the steps she took to comply with the defendant's late requests for information. The defendant did not make an application for further disclosure at any time before trial.

1. At trial, it became clear that a significant issue for the defendant was that the business records did not establish the allocation of labour costs across the various businesses that Mr and Mrs Pollard operated. That was not so much a deficiency in disclosure. Rather, the proof of her claim depended, to some extent, on the Court accepting her oral evidence about that matter.  Her oral evidence was consistent with the instructions that she gave to her expert witness. The fact that her claim depended, in part, on the Court accepting Mrs Pollard's evidence about the arrangements for the businesses does not justify departing from an award in accordance with the rules.

1. The defendant also argued that the nature of the claim for economic loss changed over time. I do not accept that submission. Mrs Pollard's expert witness formulated his assessment of her economic loss on the basis of three scenarios, one of which was accepted by the Court. Although the award was ultimately based on an agreed methodology which differed from the methodology initially adopted by Mrs Pollard's expert, the amounts achieved by applying the two methodologies to the scenario accepted by the court were very close. Initially Mrs Pollard's expert sought to project economic loss drawing upon information about the past performance of the businesses. Ultimately the agreed methodology was based upon the one business scenario that had come to pass and, therefore, could draw upon actual figures not projected assumptions. The fact that the two figures were so close demonstrated the expert's initial projections were robust.

1. This is not a case like Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 in which the offer to settle was served with the statement of claim, at a time that the defendant could not assess the prospects of proving the claim. In this case, the offer to settle was served months after the first expert report from the forensic accountant was disclosed and after discussions at the compulsory conference about data limitations and methodology for assessing loss.

1. Secondly, the defendant relied upon the late acquisition of evidence from an occupational therapist in relation to the care claim which formed the basis of the award for future expenses. That award was for $48,399, about half of the difference between the offer to settle and the judgment award. While the evidence assisted the court to assess the plaintiff's claim about future care, it did not raise a new claim and was based on the plaintiff's instructions about her needs. I do not consider the late provision of this evidence, alone, justifies a different costs award.

1. Finally, the defendant relies on the late amendment of the Statement of Claim to include additional claims for future expenses. While the amendments increased some amounts claimed and reduced others, they reflected the evidence that had been disclosed prior to trial and did not constitute a change in the presentation of the plaintiff's claim.

1. I am not satisfied that an order other than the order provided for by Rule 360(1) is appropriate.

Orders:

1. Accordingly, my orders are:

1.          Judgment is entered for Mrs Pollard in the sum of $395,301.92; and

2.          The second defendant must pay the plaintiff’s costs of and incidental to the proceedings assessed on the indemnity basis, if not agreed.