Senton v Steen

[2014] ACTSC 249

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Senton v Steen

Citation:

[2014] ACTSC 249

Hearing Date:

18 June 2014

DecisionDate:

26 September 2014

Before:

Master Harper

Decision:

1. The defendant pay the plaintiff’s costs up to 28 January 2009 as between party and party.

2. The defendant pay the plaintiff’s costs from 29 January 2009 on a solicitor-and-client basis.

Category:

Costs

Catchwords:

COSTS – Calderbank offer by plaintiff before trial – offer by plaintiff to settle for figure below award of damages by the court after reduction for contributory negligence – no evidence of terms of retainer between plaintiff and plaintiff’s solicitors – order for party-and-party costs up to date of expiry of Calderbank offer and solicitor-and-client costs after that date.

Parties:

Trevor Videan Senton by his litigation guardian the Public Advocate of the Australian Capital Territory (Plaintiff)

Francis James Steen (Defendant)

Representation:

Counsel

Mr AJ Bartley SC and Mr SJ Longhurst for the plaintiff.

Mr WM Fitzsimmons for the defendant.

Solicitors

Porters (plaintiff)

Curwoods by their Canberra agents Moray & Agnew

File Number(s):

SC 802 of 2006

1. The plaintiff in this action applies for an order for costs on a more favourable basis than the usual one where costs follow the event. 

1. The plaintiff’s claim was for damages for personal injury arising out of a motor vehicle collision at Cowra in New South Wales on 24 June 2004.  The plaintiff had been crossing the road when he was struck by the defendant’s vehicle.  He suffered severe brain damage and brings the proceeding by a litigation guardian, the Public Advocate of the Australian Capital Territory.

1. Proceedings were commenced in 2006.  I heard the evidence about liability first, and in August 2012 ordered that judgment be entered for the plaintiff for damages to be assessed, those damages to be reduced by 30% for contributory negligence.  Subsequently I heard the evidence as to damages.  On 9 April 2014 I published reasons for arriving at an award of damages, not including the expense of fund management, of $1,769,504.00.  I stood the matter over for submissions about fund management expenses and costs. 

1. Following my liability judgment an appeal to the Court of Appeal was instituted by the defendant, on whose behalf it was argued that I should have allowed a higher percentage for contributory negligence.  An issue arose as to whether that appeal should have been to a single judge or to the Court of Appeal.  I was informed that argument about that issue had taken place and that the decision had been reserved but not delivered by the time of my decision as to damages. 

1. The outstanding issues came before me for hearing on 18 June 2014.  I was informed that the funds management component had been agreed at $108,600.00.  The effect of this was that after reducing the total damages by 30%, the plaintiff would be entitled to judgment for $1,323,516.25.  I directed the entry of judgment accordingly, and later  the same day ordered a stay of execution provided…