Reagan by his next friend Sally Jan Reagan v ASAMA - [2003] WADC 186

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: REAGAN by his next friend SALLY JAN REAGAN
-v- ASAMA [2003] WADC 186

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 4 AUGUST 2003

DELIVERED : 28 AUGUST 2003

FILE NO/S: CIV 2264 of 2002

BETWEEN: GEORGE HENRY REAGAN by his next friend SALLY JAN REAGAN
Plaintiff
AND
RIUJI ASAMA
Defendant

Catchwords:

Practice and procedure - Taxation of costs - Objections - Turns on its own facts

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Ms M G Saraceni
Defendant: Mr R Carey

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Srdarov Richards Burton

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: For determination is the plaintiff's objection to the taxation of costs which was heard on 17 April 2003.
The objection is as follows
"3: Various getting up – item 13
The maximum under the applicable scale is $27,000.00. The amount claimed was $15,073.10 plus GST of $1,225.86. The amount allowed was $8,000.00.
The accident occurred on 7 November 2000. The plaintiff, then aged 10 years was seriously injured in the motor vehicle accident when, whilst riding his scooter, he entered the kerbside lane against the red pedestrian traffic light and was hit by the defendant’s vehicle.
The plaintiff suffered serious injuries including brain injuries as a result and remains significantly disabled. The likely quantum of his claim will be very significant.
A police report was requested in relation to the circumstances of the accident. The report containing a number of statements was pursued and a questionnaire was prepared which was sent to all persons who were known to have witnesses the accident or been in the immediate vicinity at the time. As considerations (sic) of all of the responses, five witnesses were personally proofed by David McKenna at their homes.
Enquiries were also made of the Council, Main Roads Department, Injury Research Centre and a clinical psychologist.
In May 2001 the Insurance Commission of Western Australia advised preliminary enquiries indicated no negligence on behalf of their insured. The matter was referred to their solicitor.
In August 2001 their solicitor advised that he was continuing enquiries but his preliminary view was there was no negligence on behalf of the Commission's insured and he sought submissions on liability.
On 27 August 2001 liability was admitted subject to a 25% deduction for contributory negligence.
Research was then undertaken in relation to the likelihood of a finding of contributory negligence having regard to the facts.
Counsel was briefed. After initially considering the brief Counsel discussed the matter and sought further information, being information from the Injury Research Centre and the clinical psychologist. Counsel considered the responses and finalised her opinion. Counsel's recommendation was the plaintiff should accept a 10% reduction for contributory negligence to avoid litigation. Counsel's advice was provided to the Commission's solicitor and that solicitor subsequently advised on 26 September 2002 that his client was prepared to accept a proposal of 90/10 apportionment of liability in my client’s favour, subject to court approval.
Court approval was then sought and obtained.
It was a term of the order obtained the defendant do pay the plaintiff's costs in relation to the liability issue.
Considerable other costs have been incurred in relation to the quantum aspects of the claim however they are not included in the costs sought at this time.
A schedule of the work comprising the getting up was provided at the taxation.
All of the work included in the schedule of getting up was essential for achieving the result which has been achieved on behalf of the plaintiff that he be paid 90% of his damages to be assessed. It is not appropriate in a case such as this to consider the reasonableness of the work done without regard to the following factors:
1.   the plaintiff is an infant;
2.   the plaintiff was seriously injured and the quantum of his claim is likely to be very significant;
3.   there was an initial denial of liability by the defendant and it was reasonable for the plaintiff's legal advisers to take all possible action to both establish liability and minimise any finding of contributory negligence.
The amount allowed in the circumstances for getting up was manifestly inadequate and places an unreasonable burden on the plaintiff in respect of solicitor/client costs.
Disbursements
24/06/02 – Counsel's fee on brief - $6,226 including GST
At the time counsel's opinion was provided the defendant had admitted liability but was seeking a reduction of 25% for contributory negligence.
Having regard to the plaintiff's injuries and the likely quantum of his claim any reduction for contributory negligence was likely to have a significant impact on his damages.
A finding was made at taxation that it was reasonable for senior counsel to provide the opinion requested.
It was necessary for senior counsel to consider the negligence of the defendant so that it could be compared to the negligence of the plaintiff for the purpose of assessing contributory negligence.
Senior counsel has provided a fee note indicating the number of hours of work spent dealing with the matter, which included no only initial consideration of the brief but also a conference to discuss further information required in consideration of that further information before the opinion was finalised.
An allowance of $3,226.00, being just under 52% of counsel's fee note is manifestly inadequate and places an unreasonable burden on the plaintiff in respect of solicitor/client costs."
The order giving rise to the entitlement to taxation is as follows:
"1.The plaintiff do have leave to compromise the issue of liability on the basis that he will receive 90% of damages to be assessed or agreed.
2.The defendant do pay the plaintiff's costs in relation to the liability issue to be taxed if not agreed.
3.The matter be removed from the case management timetable."
The concern in regard to the issue of liability was whether or not a significant deduction should be made for contributory negligence. The facts were that the infant plaintiff was riding on a scooter and entered an intersection against a pedestrian red light and was hit by the defendant's vehicle. In truth it appears to be the case that the infant struck the defendant's vehicle which was moving past at the time he entered the intersection. After adopting an initial stance of denial of liability the defendant adopted a succession of negotiating positions culminating in the suggestion that liability be apportioned in the manner of the eventual judgment. There were some complications in regard to the matter and the plaintiff's solicitors identified six witnesses to the accident and obtained proofs from those individuals. They also obtained a full police report of the accident and made a Freedom of Information Act application to obtain those details. Contact was made with the Main Roads Department to obtain a traffic light sequence and information was obtained from an expert as to the cognitive capacities of a child of the age of the infant plaintiff and his appreciation of risks, distance, speed and the like. The amount of the claim for getting up was initially $15,000. It was contended by the taxing plaintiff that something in excess of 50 hours of work was on the issues with which we were concerned. I established that the process of interviewing and proofing the relevant witnesses took approximately 14 hours. As to the other aspects of the investigation, precise figures were not put on those efforts but I nonetheless made an allowance which at current rates equated to about 11 hours of a senior practitioner's time.
A schedule was prepared to support the bill of costs for taxation which claimed about $3,500 for attending the scene of the accident and proofing witnesses and the balance of the claim was very largely made up of unspecified matters which were clumped together in a succession of units described as:
"Telephone attendances on plaintiff and next friend, Insurance Commission of Western Australia, solicitor for the defendant, witnesses, experts and Counsel …"
and;
"Correspondence received and written to plaintiff, next friend, Insurance Commission of Western Australia, solicitor for the defendant, witnesses, experts and Counsel …"
The onus was on the taxing party to establish the work which was undertaken in the course of getting up case. To clump about $4,500 under heading such as "Correspondence" and "Telephone attendances" sheds no light on the reasons that work was undertaken nor why it should be regarded as part of getting up case for trial. Nothing which was put to me at the taxation (or the hearing of the objections) assisted me to understand the composition of the claim under these headings and for that reason I consider that the plaintiff failed to discharge its onus. Accordingly, while recognising that some of the tasks undertaken by the plaintiff's solicitor would have involved correspondence and telephone attendances, I considered that the claim for a sum of $4,500 in respect of those items was not justified on the evidence before me and the amount should be reduced.
Approximately a further $2,000 was claimed for considering counsel's advice on liability and contributory negligence. I understood that the process of compromising an infant's claim required a solicitor to consider the offer which had been made and to reach an opinion as to whether or not acceptance of that offer was in the interest of his infant client, to discuss that matter with the next friend representing the infant and if all agreed to then refer the matter to counsel for an independent opinion as to whether or not the offer should be accepted.
The process in this case appears to be rather different. I am unable to understand why, after the solicitors had reached the conclusion that the offer should be accepted, it was necessary to spend something like six hours perusing the opinion and discussing it with their client when in truth the opinion should have simply confirmed the view which they had already formed, namely that the offer was a reasonable one and it was in the plaintiff's interests to accept it.
In my view a total allowance of about 25 hours of a senior practitioner's time in the various tasks which were involved in getting up the case insofar as the issue of liability was concerned is a generous allowance.
For that reason I am of the view that the claim of $15,000 was excessive and am of the view that $8,000 is reasonable. It follows from that analysis I do not agree that the amount allowed was manifestly inadequate, nor does it place an unreasonable burden on the plaintiff in relation to solicitor-client costs. On the latter point this is a Motor Vehicle Insurance Trust case and the solicitors are only permitted to charge according to scale and any costs agreement which purports to increase their entitlement beyond scale is void. Accordingly, I am of the view that my allowance for this item on this taxation delineates the amount which the solicitors are entitled to charge their client for the work which was undertaken the subject of the bill and there can be no burden on the plaintiff in respect of the items which have been taxed, over and above the taxed figure.
As to the particular items to which it is said that I failed to have sufficient regard:
1.I was aware that the plaintiff was an infant;
2.I was aware that the plaintiff was seriously injured and his claim is likely to be high;
3.I was aware of the fact that liability was originally denied but ultimately settled in the manner earlier discussed.
I am therefore unpersuaded that there has been any error in the taxation and the allowance for $8,000 for getting up will stand.
The next item is counsel's fee on brief of $6,226.
It is not unusual for me to tax a bill of costs in which the opinion of Senior Counsel has been obtained as to the settlement of an infant plaintiff's claim. This account, in my view, is at least twice as high as any other account that I have ever seen for similar work. Factually the issues were fairly straightforward and counsel was only required to consider the question of whether or not a 10 per cent deduction for the issue of contributory negligence was reasonable in the circumstances of the case. The facts as recounted by the witnesses who saw the accident were somewhat of variance but given the fact that the child was on a scooter and went directly through a red light into the side of the car which was passing the intersection at the time, there must clearly have been some danger that a deduction for contributory negligence would be made, and that deduction might be in excess of the 10 per cent which was suggested by the defendant. A number of cases have been cited by counsel in her opinion but as I understand it those are cases to which she was referred by the plaintiff's solicitors. Counsel has claimed on the basis of 14.15 hours at a rate in excess of the maximum which has been prescribed for Senior Counsel doing trial work for the purposes of the scale, the maximum being $429 per hour whereas counsel in this instance has charged $440 per hour or thereabouts.
In my view the selection of Senior Counsel in order to provide an opinion carries with it the prospect that Senior Counsel is well versed in the matters which must be canvassed in order to provide the opinion and should be able to produce that opinion efficiently and economically notwithstanding the higher hourly rate which may be charged.
In this case I take the view that a charge of $6,226 exceeds the reasonable amount which might be charged for providing the opinion which was used in the application to approve a compromise and in my view an allowance of $3,000 is a reasonable charge.
It was argued at the hearing of the objections that item 30 of the scale does not permit me to allow part of a disbursement. Item 30(b) provides as between party and party, a party may be allowed disbursements necessarily or reasonably incurred. It was suggested that all I needed to do was consider whether or not it was necessary or reasonable to engage the services of counsel and if the answer to that question was affirmative then I must therefore automatically allow the fees which counsel claimed. That would suggest that no matter what counsel claimed there would be no basis upon which I could refuse to allow that disbursement in the plaintiff's bill.
I reject that argument. In my view a disbursement is reasonably incurred when, firstly it is appropriate to obtain the service for which the disbursement was outlaid, and secondly when the amount of the outlay is justified by the service provided. I am of the view that the Court is entitled to scrutinise disbursements in the same way that it scrutinises costs in order to determine that it is fair that the paying party should be burdened with that expense.
Of course in many instances there are difficulties in establishing what is a reasonable charge for the service provided. Those difficulties do not, however, apply to a fee for counsel's opinion since counsel is a legal practitioner and bound by the provisions of the Legal Practitioners' Act and the scales promulgated under that Act. And it is therefore possible to bring some level of understanding as to the basis of the charge and a judgment as to its reasonableness when assessing such a fee.
In the present circumstances I consider that the charge was too high and I am of the view that it should be reduced to the $3,000 as I have mentioned. To say that the reduction of counsel's fee places an unreasonable burden on the plaintiff is not in my view accurate. Counsel is a practitioner in the same way the plaintiff's solicitors are practitioners, and subject to the same restrictions as them.
For these reasons I am of the view that the objections should not succeed and I should sign my allocator in the amount of $15,075.08 upon the date of issue of these reasons for decision.