Ryrie v Tanner (No 3) - [2020] ACTSC 223

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ryrie v Tanner (No 3)
Citation:	[2020] ACTSC 223
Hearing Date:	11 August 2020
DecisionDate:	12 August 2020
Before:	Murrell CJ
Decision:	Second defendant to pay the plaintiff’s costs on a party and party basis until 17 August 2018 and on an indemnity basis thereafter.
Catchwords:	PRACTICE AND PROCEDURE – COSTS – Application for costs on an indemnity basis – Whether the plaintiff’s offer was a valid “mandatory final offer” – Whether it was unreasonable for defendant to reject plaintiff’s “mandatory final offer” – Consideration of “pain and suffering” and “non-economic loss”
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1721 Road Transport (Third-Party Insurance) Act 2008 (repealed) ss 141, 144(2), 145, 155(3), 156A, 156B Road Transport (Third-Party Insurance) Regulation 2008 (ACT) reg 27
Cases Cited:	Albrecht v Insurance Australia Ltd [2016] ACTCA 58; 12 ACTLR 46 Casey v Pel-Air Aviation Pty Ltd; Helm Pel-Air Aviation Pty Ltd (No 3) [2015] NSWSC 857 Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 Ryrie v Tanner (No 2) [2020] ACTSC 104
Parties:	Nyssah Ryrie (Plaintiff) Pat Tanner (First Defendant) Insurance Australia Ltd trading as NRMA Insurance (Second Defendant)
Representation:	Counsel S Whybrow (Plaintiff) D Crowe (Defendant)
Solicitors Baker Deane & Nutt (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number:	SC 352 of 2019

MURRELL CJ

Costs application

On 1 May 2020, I gave judgment for the plaintiff in the sum of $370,501. The plaintiff had claimed damages for injuries and disabilities (primarily, lower back pain) that she had sustained in a motor vehicle accident on 17 August 2015: Ryrie v Tanner (No 2) [2020] ACTSC 104.

The plaintiff claimed costs on a party and party basis until 17 August 2018 and thereafter on an indemnity basis on the basis that, on 17 August 2018, the plaintiff made a “mandatory final offer” (MFO) under the Road Transport (Third-Party Insurance) Act 2008 (repealed) (TPI Act).

The defendants said that all costs should be paid on a party and party basis because:

(a)the plaintiff’s MFO did not comply with the TPI Act as the latter speaks of “pain and suffering” rather than “non-economic loss”; and/or
(b)in the exercise of the Court’s discretion, there should be no special costs order as it was not unreasonable for the defendants to reject the plaintiff’s offer; it was made prior to receipt of expert medical evidence that significantly changed the complexion of the case and, inter alia, dealt with the plaintiff’s need for a spinal fusion operation.

The offers

The plaintiff’s offer was:

For the purposes of Section 141 of the Road Transport (Third Party Insurance) Act 2008 (“the Act”), the Plaintiff makes an MFO of $100,000.00, inclusive of all medical expenses in the sum of $,7865.19, inclusive of other statutory charges and plus party\party costs and disbursements.
Of the above amount, pursuant to section 141(5), the Plaintiff identifies the amount of $49,000 as being for pain and suffering.
(Emphasis added)

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryrie v Tanner (No 3)

Details

AGLC: Ryrie v Tanner (No 3) [2020] ACTSC 223
Case: [2020] ACTSC 223
Decision Date: 12 August 2020

CaseChat Overview and Summary

Ryrie v Tanner (No 3) involved a legal dispute between the plaintiff, Ryrie, and the second defendant, Tanner, concerning an application for costs on an indemnity basis. The case originated from an earlier personal injury action where Ryrie was the plaintiff and Tanner was the defendant. The present application centred on whether the plaintiff’s offer was a valid “mandatory final offer” and whether it was unreasonable for the defendant to reject this offer. The Supreme Court of Victoria was tasked with resolving these issues.

The court had to determine the validity of the plaintiff's "mandatory final offer" and whether the second defendant's rejection of this offer was reasonable. The primary consideration involved assessing the offer in light of the circumstances surrounding the personal injury action, particularly focusing on the elements of "pain and suffering" and "non-economic loss." The court examined the procedural history, the nature of the injuries, and the quantum of the offer relative to the potential damages claimed. Additionally, the court considered the factors that could render a final offer unreasonable, including the timing and context of the offer.

The court ruled that the plaintiff’s offer was indeed a valid "mandatory final offer" and that it was unreasonable for the second defendant to reject it. The court highlighted the significant impact on the plaintiff's health and the reasonable prospects of success in the litigation as key factors in this determination. The judge concluded that the rejection of the offer led to the plaintiff incurring additional costs, which were disproportionate given the context of the case. Consequently, the second defendant was ordered to pay the plaintiff's costs on a party and party basis until a specific date, and on an indemnity basis thereafter.

The final orders required the second defendant to pay the plaintiff's costs on a party and party basis until 17 August 2018, and on an indemnity basis from that date onwards. This decision underscored the importance of evaluating the reasonableness of rejecting a "mandatory final offer" in personal injury litigation and the potential consequences for parties involved.

Orders

Orders of the court

Second defendant to pay the plaintiff’s costs on a party and party basis until 17 August 2018 and on an indemnity basis thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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