Sacco v Transport Accident Commission (Ruling)
[2016] VCC 967
•11 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-03212
CI-15-01721
| GIUSEPPE (JOE) SACCO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 June 2016 | |
DATE OF RULING: | 11 July 2016 | |
CASE MAY BE CITED AS: | Sacco v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 967 | |
RULING
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Subject: COSTS
Catchwords: Transport accident – serious injury applications – two proceedings – appropriate order as to costs
Legislation Cited: County Court Civil Procedure Rules 2008
Cases Cited:Sacco v Transport Accident Commission [2016] VCC 854; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
Ruling:Defendant to pay plaintiff’s costs in respect of proceeding CI‑11‑03212, non-common with the other proceeding. Plaintiff to pay defendant’s costs in respect of proceeding CI-15-01721, non-common with the earlier proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr G A Worth | Verduci Lawyers |
| For the Defendant | Mr G A Lewis QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On 30 June 2016, I handed down my Reasons[1] in these serious injury applications. The plaintiff was successful in satisfying the Court that he had suffered a serious injury to his cervical spine arising out of a transport accident of 8 November 2005 (proceeding CI-11-03212). The plaintiff also brought an application concerning another transport accident, which occurred on 1 March 2012 (proceeding CI-15-01721). He was not successful in relation to that application.
[1]Sacco v Transport Accident Commission [2016] VCC 854
2 Both applications were heard together.
3 The applications were complex because Mr Sacco had been involved in five transport accidents over the years from 1980 until 2012, including the subject accidents. Further, he had suffered pre-existing pain and restriction in the cervical spine for which he had sought treatment before the 2005 accident. Because of these complexities, the parties provided written submissions as to the appropriate costs orders. This ruling deals with costs which ought to follow.
4 According to the plaintiff’s submissions, it was appropriate for the plaintiff to issue proceedings in relation to the 2012 accident as otherwise he would “fall between two stools”. It was said that the Transport Accident Commission had staunchly denied that the consequences to the plaintiff met the statutory test in relation to the 2005 accident.
5 The defendant submits there is nothing particularly unusual about the cases, and certainly no “special circumstances” to justify anything other than an order that costs should follow the event.
6 The application in relation to the 2012 transport accident was issued presumably on the basis that the instructions from the plaintiff and the medical evidence obtained, was sufficient to justify the application on the basis that the plaintiff had suffered a serious injury as a result of that accident. The only risk to the plaintiff in not issuing an application in respect of the 2012 accident would be that the defendant would, in obtaining consultant practitioners’ reports and cross-examining the plaintiff at the hearing, shift the blame for the neck injury to the 2012 accident, and away from the 2005 accident. However, that is a risk that many plaintiffs face when there are multiple accidents, or significant pre-existing problems to the same body function, or even other injuries or conditions which may give rise to various consequences.
7 I do not see a basis upon which it could be said that the plaintiff’s case risked “falling between two stools”. The injuries arising from each of the respective accidents had to be considered independently and the consequences separately identified.
8 The plaintiff was at liberty, subject to any limitation provisions, to await the outcome of the application in relation to the 2005 accident, before issuing that in relation to the 2012 accident.
9 There was nothing about these applications which would suggest there are any special circumstances such that the usual rule that costs should follow the event, ought not be followed. I will order the defendant pay the plaintiff’s costs in respect of proceeding CI-11-03212, non-common with the other proceeding, and that the plaintiff pay the defendant’s costs in respect of proceeding CI-15-01721, non-common with the earlier proceeding.
10 Mr Ingram, leading counsel for the plaintiff, sought certification of his fee in the sum of $5,500 and half for junior counsel. These applications were difficult and complicated. The submissions made by Mr Ingram in final address were of little assistance. I found I had to sort through much of the material myself without any clear guidance. I was reminded by the comments of Warren CJ in Davies v Nilsen & Transport Accident Commission.[2]
[2][2014] VSCA 278 at paragraph [107]
11 It is appropriate for the Costs Court to determine Mr Ingram’s fees, and those of junior counsel for the plaintiff.
12 I shall make consequent orders.
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