Popovic v ACN 098 054 678 Pty Ltd (Costs Ruling)
[2012] VSC 612
•12 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. SCI 2011 00868
| ALEKSANDAR POPOVIC | Plaintiff |
| v | |
| ACN 098 054 678 PTY LTD (FORMERLY STRATEGY ONE RECRUITMENT PTY LTD) | First Defendant |
| and | |
| AB OXFORD COLD STORAGE PTY LTD (ACN 005 104 361) | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2012 | |
DATE OF JUDGMENT: | 12 December 2012 | |
CASE MAY BE CITED AS: | Popovic v ACN 098 054 678 Pty Ltd & Anor (Costs Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 612 | |
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PRACTICE AND PROCEDURE – Costs – Personal injury claim – Plaintiff failing in claim for damages against first and second defendants arising from injury in July 2007 – Succeeding in claim for damages against first defendant for subsequent aggravation of injury – Whether plaintiff entitled to Bullock or Sanderson order in respect of second defendant’s costs – Whether first defendant liable to plaintiff in respect of costs relating to incident of July 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moore QC and Mr N Griffin | Zaparas Lawyers |
| For the First Defendant | Mr B McKenzie | Lander & Rogers |
| For the Second Defendant | Mr C O’Sullivan | HWL Ebsworth Lawyers |
HIS HONOUR:
In this matter, I delivered my reasons for judgment on 26 October 2012[1]. I stood over the making of final orders, in order to give the parties the opportunity to confer concerning two aspects relating to the assessment of the plaintiff’s damages, and also concerning the question of costs. The two matters relating to the assessment of damages – the calculation of the Fox v Wood damages, and the amount of compensation to be deducted pursuant to the Accident Compensation Act 1985 – and the proper calculation of interest payable to the plaintiff, have been resolved. However, an issue has arisen concerning the question whether the first defendant should be liable for the costs of the second defendant. In addition, an issue has arisen as to the extent of the costs payable by the first defendant to the plaintiff.
[1]Popovic v ACN 098 054 678 Pty Ltd & Anor [2012] VSC 498.
The background to the plaintiff’s claim was set out in my earlier reasons for judgment. In essence, the plaintiff claimed damages for injuries which he alleged he sustained in two incidents, on 14 July 2007 and on 3 October 2007 respectively, in the course of his employment. At the time of both incidents, the plaintiff was employed by the first defendant, which was a labour hire company. At the time of the first incident, the first defendant had hired the plaintiff’s services to the second defendant, and he was working at the premises of the second defendant in Laverton North. At the time of the second incident, the plaintiff was working at the premises of the first defendant in North Melbourne. Thus, the plaintiff claimed damages against the first and second defendants in respect of the injury sustained by him in the first incident, and against the first defendant in respect of the injuries which he sustained in the second incident.
In my reasons for judgment, I held that the plaintiff had not established any negligence, or breach of statutory duty, by either defendant in respect of the injuries which he sustained on 14 July 2007. Thus, his claim in respect of those injuries failed. I further found that I was satisfied that the first defendant was liable in negligence to the plaintiff in respect of the injury which he sustained at the first defendant’s premises on 3 October 2007. I assessed the plaintiff’s pecuniary loss damages, in respect of the injuries he sustained in the second incident, in the sum of $356,000 (to which the Fox v Wood damages shall be added), and I assessed the plaintiff’s pain and suffering damages in respect of the injuries, which he sustained in that incident, in the sum of $150,000.
It follows that the plaintiff’s claim against the second defendant will be dismissed, and that the plaintiff will be entitled to an award of damages against the first defendant (in respect of the second incident). As a result of my reasons of judgment, the plaintiff is entitled to an order for costs against the first defendant.
The first issue, which has arisen, concerns the costs of the second defendant. The second defendant seeks an order that the plaintiff pay the second defendant’s costs of the proceeding. In response, the plaintiff has submitted that he should be entitled to a “Sanderson” order[2] that the first defendant pay the costs of the second defendant. Alternatively, the plaintiff has submitted that he should be entitled to a “Bullock” order[3] requiring the first defendant to indemnify him in respect of any costs order made against him in favour of the second defendant.
[2]Sanderson v Blyth Theatre Company [1903] 2 QB 533.
[3]Bullock v London General On the Bus Company [1907] 1 QB 264.
The second issue, which has arisen, concerns the extent to which the first defendant should be liable to pay the costs of the plaintiff. In particular, Mr B McKenzie, who appeared on behalf of the first defendant, submitted that the costs payable by the first defendant should be limited to the costs incurred by the plaintiff in respect of the issues relating to the second incident of 3 October 2007.
The costs of the second defendant
It is convenient, first, to deal with the application by the plaintiff for a Sanderson or Bullock order in relation to the costs of the second defendant. In support of that application, Mr G Moore QC, who appeared with Mr N Griffin, submitted, first, that there had been conduct by the first defendant by which it had encouraged the plaintiff to join A.B. Oxford Cold Storage Pty Ltd (“Oxford Cold Storage”) as the second defendant in the proceeding. In that respect, Mr Moore relied on an affidavit by his instructing solicitor, Mr Peter Zaparas. He submitted that, based on that affidavit, the plaintiff had only intended to join the first defendant in the proceeding. However, from an early stage, the solicitors for the first defendant encouraged him to join Oxford Cold Storage as the second defendant in the proceeding. Mr Moore further submitted that it was in the interests of the first defendant, rather than the plaintiff, that the second defendant be joined to the proceeding. That joinder enabled the first defendant to obtain contribution from the second defendant for any liability of the first defendant in relation to the first incident of 14 July 2007. Mr Moore submitted that if the plaintiff had not joined Oxford Cold Storage as the second defendant, the first defendant would have joined it as a third party to the proceeding. In such circumstances, the first defendant, and not the plaintiff, would have been liable for the costs of Oxford Cold Storage.
In support of his submissions, Mr Moore contended that, during the trial of the proceeding, the first defendant had sought to inculpate the second defendant in respect of the plaintiff’s claim for injuries arising out of the incident of 14 July 2007. Mr Moore pointed to the cross-examination of a number of witnesses by counsel for the first defendant to the effect that, at the time of the first incident, the second defendant was solely responsible for the provision of supervision, instruction and training of the plaintiff, and that the plaintiff was working pursuant to the second defendant’s system of work. Mr Moore also pointed to cross-examination by counsel for the first defendant of some of the medical practitioners, by which the first defendant sought to establish that the first incident, rather than the second incident, was primarily responsible for the nature and extent of the plaintiff’s injuries.
In response, Mr McKenzie submitted that the first defendant had not encouraged the plaintiff to join Oxford Cold Storage as a second defendant in the proceeding. Rather, based on an affidavit by his instructing solicitor, Ms Stephanie Taylor, he submitted that at all times it had been the intention of the plaintiff to join Oxford Cold Storage as a defendant to the proceeding, and that the first defendant had encouraged the plaintiff to do so expeditiously, so that Oxford Cold Storage could participate in the settlement negotiations which, pursuant to the Accident Compensation Act, were required to take place before the plaintiff issued his common law proceedings. Mr McKenzie also pointed out that until five weeks before trial, the plaintiff had only based his claim for damages, against either defendant, on the first incident of 14 July 2007. It was not until that date that the plaintiff amended his statement of claim to include a claim for aggravation of his injuries by reason of the work which he carried out at the premises of the first defendant on 3 October 2007. Thus, Mr McKenzie submitted, at all times the focus of the plaintiff’s claim was on the work which he performed at the premises of Oxford Cold Storage at the time he sustained his initial injury on 14 July 2007.
Mr McKenzie further submitted that the causes of action, relied on by the plaintiff, in relation to the first incident on 14 July 2007, and in relation to the second incident of 3 October 2007, were not interdependent. Rather, the second incident constituted an aggravation of injuries which the plaintiff had earlier sustained by him on 14 July 2007, regardless of whether those injuries had been incurred in circumstances involving common law liability of either defendant. Thus, he submitted the plaintiff, if he had been so advised, might have confined his claim for damages to those relating to the injuries he sustained on 3 October 2007. In those circumstances, the evidence at trial would have not involved any detailed examination of the circumstances in which the first incident, on 14 July 2007, took place.
Finally, Mr McKenzie submitted that at trial the second defendant did not seek to inculpate the first defendant in relation to the incident of 14 July 2007. In particular, the first defendant did not seek to establish any negligence by the second defendant as a cause of the plaintiff’s injuries on that date. Rather, the first defendant sought to establish that the second defendant had almost exclusive responsibility for designing the plaintiff’s system of work, for supervising him, and for giving him instruction.
For completeness, I should record that Mr C O’Sullivan who appeared for the second defendant, did not seek to make any submissions on the question whether the first defendant should be responsible for his client’s costs.
Legal principles
The making of a “Bullock” or “Sanderson” order for costs is an exercise by the court of its discretion. The principles, which are relevant to the proper exercise of that discretion, have been considered in a number of authorities. For present purposes, those principles can be summarised in terms of the following propositions:
(1)The plaintiff must demonstrate that it was reasonable for him to have joined the successful defendant.[4] However, the fact, that it was reasonable for the plaintiff to have joined the successful defendant, is not sufficient to entitle him to an order that the unsuccessful defendant bear the costs of the successful defendant. In addition, the plaintiff must demonstrate that there has been conduct by the unsuccessful defendant which is such that it is appropriate and just that the unsuccessful defendant bear the burden of the successful defendant’s costs.[5]
(2)Ordinarily, in order to establish that the joinder of the successful defendant was reasonable, the claim by the plaintiff against the unsuccessful defendant, and the claim by the plaintiff against the successful defendant, respectively, must have been interdependent or closely interrelated.[6] However, the requirement, that the claims against the unsuccessful and successful defendants be interdependent, is not a necessary or critical prerequisite to the making of a Bullock or Sanderson order.[7]
(3)In determining whether the conduct of the plaintiff, in joining the successful defendant, was reasonable, it is not always necessary to demonstrate that it was reasonable on facts known at the time of the joinder of the successful defendant. Subsequent events may demonstrate the joinder of the successful defendant to have been reasonable in all the circumstances.[8]
(4)Ultimately, the justice of the case must merit the making of such an order.[9] In other words, the fundamental question is whether it is fair between the plaintiff and the unsuccessful defendant that the unsuccessful defendant should bear responsibility for the costs of the successful defendant.[10] In particular, it must be demonstrated that the costs of the successful defendant have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant.[11]
[4]State of Victoria v Horvath & Ors (No 2) [2003] VSCA 24, [11].
[5]Victorian WorkCover Authority v Kagan Brothers Consolidated Pty Ltd (2011) 31 VR 386, 391 [17] (Redlich and Bongiorno JJA); Gould v Vaggelas (1984) 157 CLR 215, 229 (Gibbs CJ), 260 (Brennan J); Central Goldfields Shire v Haley & Ors (No 2) [2009] VSCA 203, [8] (Redlich JA); Lackersteen v Jones & Ors (No 2) (1988) 93 FLR 442, 449 (Asche CJ).
[6]State of Victoria v Horvath & Ors (No 2), [9]; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149, 163; Victorian WorkCover Authority v Kagan Brothers Consolidated Pty Ltd (above), 390 [16].
[7]Victorian WorkCover Authority v Kagan (above), 393 [21].
[8]Central Goldfields Shire v Haley & Ors (above) [8].
[9]Victorian WorkCover Authority v Kagan Brothers Consolidated Pty Ltd (above), 393 [21].
[10]McCracken & McCracken v Pippett & Anor [2000] VSCA 20, [11] (Callaway JA).
[11]Gould v Vaggelas (1985) 157 CLR 215, 229 to 230 (Gibbs CJ), 247 (Wilson J, with whom Murphy J agreed); Wade v Australian Railway Historical Society (South Australian Division) (T/as Steamranger) & Anor (2002) 83 SASR 247, 250 [19] (Perry J, with whom Williams J and Gray J agreed).
The fact that ordinarily, although not necessarily, the claim against the losing defendant and the claim against the successful defendant must be interdependent, is not a discrete consideration. Rather, that circumstance reflects the requirement that it must have been reasonable for the plaintiff to have joined the successful defendant. For, ordinarily, where the claim against the successful defendant and the claim against the unsuccessful defendant are interdependent, it might be readily concluded that it was reasonable for the plaintiff to have joined the successful defendant. Otherwise, the plaintiff would hazard the risk of “falling between two stools”, depending on the ultimate findings made by the court.[12] Indeed, in such a case, it has been held that a denial of liability by the unsuccessful defendant may be sufficient conduct on its behalf as to make it just and fair that the court make a Bullock or Sanderson order.[13]
[12]See for example Altamura v Victorian Railways Commissioners [1974] VR 33.
[13]Gould v Vaggelas (above), 231 (Gibbs CJ), 247 (Wilson J); State of Victoria v Horvath (No 2), [12]; Central Goldfields Shire v Haley & Ors (No 2), [11]; Lackersteen v Jones & Ors (No 2), 449.
Conclusions on application by plaintiff in respect of costs of second defendant
In my view, the circumstances of this case do not justify the making of an order, the effect of which would be that the first defendant should bear the costs of the second defendant. I have reached that conclusion because of the combination of a number of factors.
First, and foremost, this is not a case in which the first defendant was unsuccessful in respect of the cause of action, or the particular incident, in respect of which the second defendant was found not to be liable to the plaintiff. Rather, the first defendant was successful in defending the cause of action asserted against it by the plaintiff in respect of the first incident of 14 July 2007. Indeed, in a very real sense, the fate of the plaintiff’s claim against the first defendant, in respect of the first incident, was necessarily tied to the fate of the plaintiff’s claim against the second defendant in respect of that incident. The first defendant owed to the plaintiff a non-delegable duty of care. At all times, the plaintiff was subject to the supervision, instruction and system of work of the second defendant. If the plaintiff had succeeded in his action against the second defendant in respect of the first incident, he would, necessarily, have also succeeded against the first defendant. The prima facie liability of the plaintiff for the costs of the second defendant arises from the fact that the plaintiff failed in his claim against the second defendant in respect of the first incident. He also failed in his claim against the first defendant in respect of that incident. Thus, this case is quite distinct from the class of cases, in which a plaintiff has succeeded against one defendant in respect of an incident or a cause of action, which is the same as, or interrelated with, the cause of action or incident, which was the basis for the plaintiff’s unsuccessful claim against another defendant.
Further, it is relevant that the plaintiff failed, on the issue of liability, in respect of the first incident, because I was not satisfied that, in performing the stocktake work for the second defendant on 14 July 2007, the plaintiff was required to, or did, perform the particular movements and actions which he claimed had caused his injury. This is not a case in which the court has accepted that the plaintiff was performing the task described by him, in the manner alleged by him, but the court has found that the plaintiff has failed to establish liability attaching to one or other of two or more defendants sued by him. Rather, as I stated, the plaintiff failed to establish his cause of action, against either defendant, in respect of the first incident, because I did not accept his evidence as to the actions and movements, which he claimed he was performing at the time at which he sustained his injury on 14 July 2007.
Mr Moore is correct to point out that there is a factual connection between the injury initially sustained by the plaintiff on 14 July 2007, and the aggravation of that injury on 3 October 2007. In that sense, there is some relationship between the plaintiff’s cause of action on which he failed against the second defendant (and the first defendant), and the cause of action (in respect of the work which he performed on 3 October 2007) on which he succeeded against the first defendant. However, that relationship, between the two causes of action, is very different to the type of interconnection between claims by a plaintiff against a successful defendant and against an unsuccessful defendant, in cases in which the court has made an order that the unsuccessful defendant be responsible for the successful defendant’s costs. As Mr McKenzie has pointed out, the plaintiff did not need to claim damages in respect of the first incident of 14 July 2007. Rather, he could have claimed damages on the basis that his pre-existing injury had been aggravated by the work, which he was required to perform with the first defendant on 3 October 2007. In that way, there was not the type of interconnection between the cause of action by the plaintiff against the successful defendant, with the cause of action against the unsuccessful defendant, which ordinarily entitles a plaintiff to a Bullock or a Sanderson order for costs.
Indeed, that point is underlined by the fact that, initially, the plaintiff only issued proceedings against the first defendant in respect of the injuries which he sustained in the first incident of 14 July 2007. It was not until about five weeks before trial that the plaintiff amended his statement of claim in order to include a cause of action in respect of the injuries he sustained in the second incident of 3 October 2007. Thus, it is plain that the plaintiff himself did not consider that there was such a necessary interconnection between the first and second incidents to require him to claim damages in respect of both incidents.
As I stated, Mr Moore submitted that the plaintiff should be entitled to an order that the first defendant bear the costs of the second defendant, because the solicitors for the first defendant had encouraged the plaintiff to join the second defendant in the proceeding. The factual premise to that proposition is the subject of a dispute between the affidavits of the two solicitors, to whom I have already referred. In his affidavit, Mr Zaparas has stated that originally it was not the intention of the plaintiff to join Oxford Cold Storage as a defendant in the proceeding, but that the plaintiff ultimately succumbed to the persistent encouragement by the first defendant that he do so. On the other hand, Ms Taylor, in her affidavit, has stated that, from an early stage, she had discussions with Mr Zaparas concerning the potential joinder of Oxford Cold Storage as the second defendant in the proceeding, and that Mr Zaparas had indicated that he did not intend joining Oxford Cold Storage as the second defendant until the completion of the plaintiff’s preliminary “serious injury” application. Ms Taylor stated that she encouraged him to expedite the joinder of the second defendant, in order to ensure that the second defendant would properly participate in the negotiations, which s 134AB of the Accident Compensation Act 1985 required to take place before the issue by the plaintiff of his common law proceedings.
In the absence of cross-examination of the deponents of the affidavits, it is not possible for me to form a concluded view as to which solicitor’s version of events I should prefer. However, it is not necessary for me to resolve the difference between the evidence of the solicitors in that respect. Even if Mr Zaparas’ affidavit were taken at its highest, I am not satisfied that the conduct of the first defendant, as described by him, was such as would entitle the plaintiff to an order that the first defendant be responsible for the second defendant’s costs.
Ordinarily, the cases, in which such encouragement has been the basis for the making of a Bullock or Sanderson order, involve conduct by which the unsuccessful defendant has pleaded a defence, or made an allegation of fact or law, which has made it necessary or desirable that the plaintiff join the successful defendant. Commonly, a Bullock or Sanderson order is made where the unsuccessful defendant has, by its conduct, such as by pleading a defence, placed the plaintiff in a dilemma that if the successful defendant is not joined, the plaintiff might fail on the issue of liability in respect of the claim made against the unsuccessful defendant. In the present case, the plaintiff always knew that, at the time of the first incident, he was employed by the first defendant, that he was working at the second defendant’s premises, and that, as such, he was subject to the supervision, instruction and system of work of the second defendant. There is nothing in Mr Zaparas’ affidavit which indicates that the first defendant’s solicitors stated or did anything, which would have affected the plaintiff’s assessment of the prospects of success of his claim against the first defendant in respect of the first incident. Ultimately, the solicitors for the plaintiff made an informed decision to join the second defendant in the proceeding. I do not, therefore, consider that there was, in those circumstances, conduct by the first defendant which would justify the making of a Bullock or Sanderson order in respect of the second defendant’s costs.
Nor do I consider that there was any conduct by the first defendant, during the trial, which would justify the making of a Bullock or Sanderson order in respect of the second defendant’s costs. Counsel for the first defendant did cross-examine the plaintiff, and witnesses for the second defendant, in order to demonstrate that at all times the plaintiff was subject to the instruction, system of work and supervision of the second defendant. However, for good reason, counsel for the first defendant did not, in cross-examination, or in final address, seek to establish that there had been any negligence, or breach of statutory duty, by the second defendant, which would have rendered it liable to the plaintiff. Rather, as I have already pointed out, it was in the interests of the first defendant that there be no finding of liability against the second defendant. The conduct of counsel for the first defendant, in demonstrating that the plaintiff at all times was subject to the system of work, supervision and instruction of the first defendant, was directed to the issue of contribution between the two defendants, if the plaintiff succeeded in his claim in respect of the first incident.
Likewise, the cross-examination by counsel for the first defendant of medical practitioners was designed to establish that the principal cause of the plaintiff’s ongoing injury and disability was the injury which he sustained in the first incident, and not in the second incident. That cross-examination was not conduct which would entitle the plaintiff to a Bullock or Sanderson order in respect of the second defendant’s costs. The cross-examination was directed to reducing the exposure of the first defendant to damages in respect of the incident of 3 October. It was not conduct which, in hindsight, justified the joinder by the plaintiff of the second defendant in the proceeding. Rather, as the plaintiff failed in his claim against both defendants in respect of the first incident, that cross-examination had the effect of reducing the first defendant’s liability for damages in respect of the aggravation, on 3 October 2007, of the plaintiff’s pre-existing back injury.
It is correct to point out, as Mr Moore has submitted, that the question, of the liability for the costs of the second defendant, might have been different, if the plaintiff had not joined Oxford Cold Storage as a second defendant, but, rather, had left it to the first defendant to join that company as a third party. It is also quite possible, if not probable, that in those circumstances the first defendant would have joined Oxford Cold Storage as a third party, albeit that there is an element of conjecture in that regard. However, as I have already stated, the position is that the plaintiff chose to join Oxford Cold Storage as the second defendant in the proceeding. He failed in his claim against both defendants in respect of the one incident, in respect of which he claimed that the second defendant was liable to him. Taking all those matters into account, in the exercise of my discretion, I am not persuaded that this is a case in which it would be appropriate or just to make a Bullock or Sanderson order in respect of the second defendant’s costs. Accordingly, I shall order that the plaintiff pay the second defendant’s costs of the proceeding, including reserved costs.
The costs of plaintiff
The first defendant has submitted that the plaintiff should not be entitled to an award of costs in respect of that part of the proceeding, which concerned his claim for injury arising out of the incident of 14 July 2007. In that way, the first defendant submitted that costs should not follow the event, but, rather, that the plaintiff should only be entitled to costs in respect of that part of the proceeding on which he succeeded, namely, his claim for damages arising from the work which he performed at the premises of the first defendant in North Melbourne on 3 October 2007. Mr McKenzie submitted that the plaintiff’s claim involved two separate incidents, on different dates, at different locations. He submitted that if the plaintiff had not claimed damages for injury sustained in the first incident, the evidence in relation to the circumstances in which he was injured in July 2007 would have been quite confined. Accordingly, he submitted that the first defendant ought not to be obliged to pay the plaintiff’s costs in respect of the claim by the plaintiff in respect of the injuries which he sustained on 14 July 2007.
As a general rule, the costs of a proceeding follow the event, so that the successful party to the proceeding is entitled to all the costs of the action, notwithstanding that the successful party might have failed to establish some of its causes of action. However, in the exercise of its discretion, a court may decline to order costs in favour of the successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff has failed to establish a discrete head of claim, or has failed in respect of a discrete issue involved in its claim.[14]
[14]Pricom Pty Ltd v Sgarioto (Unreported, Supreme Court of Victoria, Eames J, 10 April 1995); McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors (2007) 20 VR 250, 289-90 [152]; Byrns & Anor v Davey & Ors [1991] 2 VR 568; G T Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296; APN Funds Management Ltd v Australian Property Investment Strategic Pty Ltd & Anor [2012] VSC 365.
The tailoring of an award of costs, in respect of the success or otherwise of a party on the issues agitated in a proceeding, has become more commonplace in commercial and like litigation, where proceedings have become more significantly protracted, and the issues agitated at trial have proliferated, in modern times. I am not aware of any common law case, and in particular a claim by a plaintiff arising out injuries sustained in the course of his or her employment, in which a successful plaintiff has been deprived of part of his or her costs, on the basis that the plaintiff has failed to establish one of the causes of action on which the plaintiff has relied. Nor were counsel able to recall being involved in, or indeed knowing about, any such common law proceeding, in which a successful plaintiff has been deprived of part of his or her costs in such circumstances. Clearly, if I were to make the order sought by the first defendant, it would be very much an exception to the ordinary rule of practice.
Furthermore, as Mr Moore correctly pointed out, s 134AB of the Accident Compensation Act 1985, which circumscribes the type of claim which may be made at common law, and the amount of damages which might be awarded in respect of such a claim, itself contains a number of provisions which significantly affect the common law rules relating to the award of costs in proceedings at common law by an injured worker. That consideration reinforces the proposition that a successful plaintiff in a proceeding, such as this, should only be deprived of part of his or her costs, in circumstances which can be properly described as exceptional.
The first defendant has not demonstrated that this is such a case. It has not been able to indicate any circumstance, or collection of circumstances, which could properly be described as being exceptional, in that sense. Indeed, and on the contrary, while the claim concerning the first incident, and the claim concerning the second incident, were not interrelated, there was a clear relationship between them. In particular, the plaintiff did not claim damages for two entirely distinct injuries sustained in each incident. Rather, his claim concerned the aggravation of injuries, in the second incident, which he had suffered in the first incident.
Accordingly, I do not accept the submission on behalf of the first defendant that the plaintiff not be entitled to an award of costs in respect of the claim by him for injury sustained on 14 July 2008.
Summary of conclusions
For the foregoing reasons I have reached the following conclusions:
(1)The plaintiff is not entitled to an order that the first defendant pay, or indemnify the plaintiff in respect of, the costs of the second defendant.
(2)I do not accept the submission by the first defendant that the costs, payable by the first defendant to the plaintiff, should not include costs incurred in respect of the claim by the plaintiff in respect of the injury which he sustained on 14 July 2008.
Orders
Subject to hearing from counsel, it follows that the following orders should be made in the proceeding:
(1)There be judgment for the plaintiff against the first defendant in the sum of $451,034.45 (such sum consisting of pain and suffering damages of $150,000 reduced by $9,930 pursuant to s 134AB(25) of the Accident Compensation Act 1985, together with loss of earning capacity damages of $356,000 reduced by $66,501.40 pursuant to s 134AB(25) of the Accident Compensation Act, together with Fox v Wood damages $7,065.86, together with damages in the nature of interest $14,400).
(2)Order that the first defendant pay the plaintiff’s costs of the proceeding, including any reserved costs.
(3)Order that the proceeding against the second defendant be dismissed, and that the plaintiff pay the costs of the second defendant of the proceeding, including any reserved costs.
(4)Order that the contribution proceedings between the first defendant and the second defendant be dismissed with no orders as to costs.
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