Sean Lee GYOMOREI By his next friend Agnes CUTHBERT-GYOMOREI v Hill - [2003] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SEAN LEE GYOMOREI By his next friend AGNES CUTHBERT-GYOMOREI -v- HILL [2003] WADC 47

CORAM: FENBURY DCJ

HEARD: 15 JANUARY 2003

DELIVERED : 7 MARCH 2003

FILE NO/S: CIV 737 of 2002

BETWEEN: SEAN LEE GYOMOREI By his next friend AGNES CUTHBERT-GYOMOREI
Plaintiff
AND
VIVEANNE HILL
Defendant

Catchwords:

Costs - Application for increase on scale - Turns on own facts

Legislation:

Supreme Court Rules, O 36, r 12

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr S V Forbes
Defendant: Ms K R Wood

Solicitors:

Plaintiff: Paiker & Overmeire
Defendant: Phillips Fox

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

Shaw v Monley [2001] WADC 150

Case(s) also cited:

Briggs & Anor v Glentham Pty Ltd, unreported; FCt SCt of WA; Library No 930223; 21 April 1993
Broad v Westralian Sands, unreported; DCt of WA; Library No 4051; 9 June 1994
CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd v Anor, unreported; SCt of WA; Library No 8740; 26 February 1991
City of Rockingham v Curley & Anor [2000] WASCA 202
Cole v Western Australian Coastal Shipping Commission & Ors, unreported; DCt of WA; Library No 3248; 7 June 1991
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Crisp v Mossensons, unreported; SCt of WA; Library No 970302; 18 June 1997
Cruickshank v Producers Markets Co-Operative Ltd [1960] WAR 184
D'Alessandro & Associates v Matthews, unreported; SCt of WA; Library No 930377; 25 June 1993
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40
Geraldton Fisheries Co-Operative Ltd & Ors v Minister for Fisheries & Ors, unreported; SCt of WA; Library No 9187; 12 December 1991
Hanson v English [1999] WADC 141
Jewell Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197
McLean v Kerville, unreported; FCt SCt of WA; Library No 6455; 1 October 1986
O'Connor & Anor v Cash & Anor, unreported; SCt of WA; Library No 940049; 7 February 1994
Palamara v City of Perth, unreported; FCt SCt of WA; Library No 960604; 18 October 1996
Retawil Pty Ltd v Olivetti Australia Pty Ltd, unreported; SCt of WA; Library No 8836; 26 April 1991
Schmidt v Gilmour [1988] WAR 219
Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58 (S2)

FENBURY DCJ: This action involved a claim by the plaintiff for damages for head injuries he sustained in a motor vehicle accident which occurred on 12 April 1991. The applicant was then aged 11 years and he was knocked down whilst crossing a dual carriageway. Apparently he moved out from between a line of stationary cars before being struck by a vehicle driven by the defendant. The plaintiff's head injury was severe. His recovery was slow and he has been left with permanent disabilities. He requires assistance in the daily activities of living. He has lost his earning capacity. His claim for damages was compromised upon the assumption that it was calculated in the region of $1.3 million.
The plaintiff's claim did not proceed to a formal pre‑trial conference, nor to trial. Indeed a writ was not issued in the matter until after it had been "settled" at an informal pre‑trial conference. Thus there is no substantial court file containing documents upon which an objective assessment of the extent of work required can be made.
Following the accident in 1991 a solicitor was instructed but, regrettably in about 1993 that solicitor died.
Fresh solicitors were thereafter instructed and independent counsel briefed.
Apparently one of the plaintiff's infant companions at the date of the accident asserted that the defendant or the driver of another vehicle waved the plaintiff across the road before impact. This driver was never found but a search was required because of the implications on the issue of liability. Allegedly this is one of the reasons why such a great deal of time passed between when the accident occurred and when the claim was determined.
On 13 August 1998 the question of liability was settled. Thereafter the matter became one for the assessment of damages only and, arguably, a lesser maximum amount for getting up under the relevant scale was applicable.
The application for determination by the Court now is for special orders as to costs. The claim was compromised before Deane DCJ on 19 August 2002 and judgment was entered for the plaintiff in the sum of $1,089,688. This made allowance for an apportionment on liability. Pursuant to the order of the Judge that there be "liberty to apply generally", the applicant seeks special costs orders by chamber summons filed in October 2002 in respect of which the following orders are sought namely that:
"1.The plaintiff's costs of the action be taxed without regard to the limits imposed by item 13 (getting up) of the Supreme Court Costs Scale 1991, a Legal Parishioners (Supreme Court) (Contentious Business) Determination 1999 (the scale);
2.Alternatively, the limit of item 13 in the scale be raised to $45,000 (sic);
3.Alternatively the value of the subject matter be fixed in the sum of $1,421,539."
In support of the application counsel Mr Forbes has filed an affidavit sworn 19 September 2002. The contents of that affidavit need to be examined in the light of counsel's submission that the application was made "on the basis that there is good and sufficient reason to remove the scale limit for getting up" (O 66, r 12(1) Supreme Court Rules) and that as much work had been done on the matter as would have been required for a trial.
In par 7 of Mr Forbe's affidavit the following appears:
"As set out in Mr Pratt's opinion, considerable efforts were made immediately after the initial receipt of instructions and thereafter to try to not only trace the driver of the vehicle who waved for Sean to cross the road, but also to try to and find out any other witnesses who could either provide leads to tracing the driver of the white vehicle or who might have seen the waving action itself. The investigations went further than usual because it was appreciated that a negative result was likely to have a negative effect in a matter where the quantum of damages was substantial (sic)."
And then at par 9:
"It was only by mid 1998 that it was accepted that it was not possible to obtain any further evidence in regard to Sean having been waved across. This had a substantial impact on the question of contributory negligence and ultimately led to the settlement of liability on a 75/25 basis."
As to the extent of the work required to be performed in investigating issues of damages and quantum such as to amount to good and sufficient reason for the scale to be raised the affidavit of the solicitor is expressed in the following terms:
"10.The investigation of quantum has been ongoing and extensive since the initial receipt of instructions by Mr Hyman on 3 May 1991. Over the years, a number of medical reports have been obtained, and until recently it has been difficult to establish with any degree of accuracy Sean's future earning capacity, if any, and capacity to look after himself.
11.An example of the unusual complexity in this regard is that Sean's school results for the year immediately preceding the accident do not differ greatly from his results for the year immediately following the accident.
12.This has involved protracted conference and correspondence with experts, Sean's family and Sean himself, extending over a period of 11 years.
13.At some times over the years it has appeared possible to finalise the quantum only for either new behavioural problems to arise or for Sean to suddenly start making unexpected progress in such a manner as to affect quantum. It was only towards mid to late 2001 that it became clear that Sean had no reasonable prospect of having any future earing (sic earning) capacity at all."
The solicitor's affidavit then, at par 15, deals with the issue of hours worked as follows:
"15.1 have inspected the files of Kennedy & Hyman and of Paiker & Overmeire. From these files I have determined that since the initial receipt of instructions the total time spent in getting up is and (sic as) follows:
(a)152 hours 25 minutes by Senior Practitioners.
(b)82 hours 45 minutes by Junior Practitioners.
(c)23.5 hours by Clerks and Paralegals.
16.The above times are calculated on actual time spent, and are not based on six minute units.
17.If the hourly rates used in the 1997 and 1999 determinations are used, then the following calculation ensue (sic) –
(a)       152 hours 25 minutes x $270per hour = $41,152.50.
(b)       82 hours 45 minutes x $180 per hour = $14,895.00
(c)       23.5 hours x $130 per hour =                  $3,055.00
(d)       Mr P Nibet QC (sic)   $3,850.00
(e)       Ms P Giles   $2,200.00
Total:   $65,152.50
I estimate that between 65 per cent and 70 per cent of the above total would normally be recoverable on a party/party basis in this matter."
The above comprises the extent of the evidence upon which the application is based, save for the contents of counsel's opinion on liability and quantum. As I have previously mentioned because there were no substantial proceedings in the Court apart from the mere issue of a writ the Court file has very little material of assistance. Therefore reliance must be placed upon material provided by the solicitors in order to determine whether there is good and sufficient reason to raise the allowance for getting up.
Counsel for the respondent asserted that the evidentiary material relied upon was inadequate. It is alleged to comprise mere assertions, put in a summary fashion, by Mr Forbes. It was asserted that the evidence was insufficient and did not amount to good and sufficient reason to raise the scale.
In response reliance appears to be placed upon remarks made by myself in Shaw v Monley [2001] WADC 150 which was a case involving similar issues. There was implied criticism in that case of the way it was put before the Court. The supporting affidavit exhibited a large number of documents including numerous time sheets which set out charged units of $25 and in a detailed way describe time spent. In short the affidavit showed that a meticulous record had been kept of every single item of work done on a file, no matter how small, which was then relied upon in toto to substantiate an assertion that there was good and sufficient reason for the raising of the scale. In rejecting the application in that case the Court expressed the view that merely adding up all of the time spent on a file in order to substantiate an application was insufficient.
It was suggested by Mr Forbes that it was with the case of Shaw v Monley in mind that this application was put in its brief generalised form.
In my view the solicitors for the plaintiff have really over‑reacted to the perceived criticism in Shaw v Monley. There does not seem to me to be sufficient material provided in this affidavit. Merely to say that total time spent has been added up and results in a figure is insufficient. I also note that the maximum hourly rate at the time has been utilised in calculation.
However, perhaps more substantially, I am concerned about the nature of the issues in the case. Some 11 years or so passed before the matter was resolved, and on any view, that is a very long time. Of course in cases of head injury to young people it can be very difficult to bring a matter to a speedy conclusion because of the pace and extent of recovery. It is sometimes not possible with any confidence to conclude the assessment of permanent disabilities until a person with head injuries has become an adult.
The plaintiff's solicitors point to the efforts required in trying to find the driver of the vehicle who was alleged by one or other of the plaintiffs juvenile companions to have waved the plaintiff across the road. Prima facie it is difficult to see how such a person could be located let alone what that person would be likely to say if approached by an investigator. Yet this is a primary factor for the assertion that a great deal of time was spent in pursuit of issues relating to liability. It does not sound very convincing to my ear.
As to quantum, its complexity is said to be exemplified by the plaintiff's lengthy and unpredictable recovery process. It seems to me that the sorts of issues to which the solicitors point in justifying an assertion that there was more than the usual amount of work required appear to be fairly routine for cases of head injury.
Having given this matter careful consideration I am not persuaded that I should exercise my discretion and grant the application for the raising of the costs limit that is sought. The matter seems to me to be a fairly routine case of its kind. It took a very long time to be resolved, but many of these cases do. A large amount of that time would, necessarily in my view, have been taken up waiting for the plaintiff to reach maturity. It is not indicative of the complexity of the issues in the matter. None of the other issues identified seem to me to be of great substance.
In my view the solicitors for the plaintiff would be adequately compensated by the limits contained in the legislation and I would decline to make the order sought. The appropriate orders therefore would be that the application be dismissed and that the plaintiff bear the costs.