Sheath v B & F Video and TV Service Pty Ltd

[1997] QSC 41

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 958 of 1992

Before the Honourable Justice White

[Sheath v. B & F Video and T.V. Service Pty Ltd]

BETWEEN:

TEENA MARIE SHEATH
  Plaintiff

AND:

B & F VIDEO AND T.V. SERVICE PTY LTD
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24/03/1997

CATCHWORDS:     COSTS - offer to settle pursuant to O.26r.9

Counsel:Mr R Lynch for the plaintiff

Mr K Geraghty for the defendant

Solicitors:Neil O'Sullivan and Rowell for the defendant

Richardson and Lyons for the plaintiff

Hearing Dates:  Written submissions as to costs after judgment.

IN THE SUPREME COURT

OF QUEENSLAND

No 958 of 1992

[Sheath v. B & F Video and T.V. Service Pty Ltd]

BETWEEN:

TEENA MARIE SHEATH
  Plaintiff

AND:

B & F VIDEO AND T.V. SERVICE PTY LTD
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24/03/1997

Judgment was delivered in this action on 18 February 1997 in the sum of $593,573.  The plaintiff sought costs on a solicitor and client basis pursuant to O.26r.9 of the Rules because an offer to settle the action in the sum of $350,000 exclusive of any refund to the Workers' Compensation Board was made on behalf of the plaintiff to the defendant on 9 February 1993.
           Order 25 rule 9(1) of the Rules provides that where the plaintiff makes an offer to settle which is not accepted by a defendant and the plaintiff obtains a judgment no less favourable than the offer to settle, the Court shall order the defendant to pay the plaintiff's costs fixed on a solicitor and client basis, unless the defendant shows that another order for costs is proper in the circumstances.  The defendant was given time to make written submissions as to why some other order was proper.
           The defendant submits that at the date of the plaintiff's offer it was reasonable not to accept it since the information and figures provided in her Statement of Loss and Damage dated 7 January 1993 gave a total substantially less than that sought in the offer to settle.  The net figure submitted by the defendant which can be derived from the Statement of Loss and Damage together with Workers' Compensation payments is in the vicinity of $300,000.
           The defendant notes that the plaintiff underwent further surgery for a spinal fusion on 14 May 1993 after the offer of settlement whilst the report from the treating orthopaedic surgeon then available to it was to the effect that no further surgical procedures were recommended or advised.  However the nature of the plaintiff's case which was run at trial was very much the case revealed in the Statement of Loss and Damage even if the figures had changed.  The plaintiff's 1993 Statement of Loss and Damage indicated that:

•her physical and resultant psychological injuries were such that she was unlikely ever to re-enter the workforce;

•her general mobility had been severely affected as a result of her injuries, she had spent extensive periods confined to bed and had experienced difficulties driving a motor vehicle;

•she continued to undergo treatment with an extensive range of medication;

•she had experienced infections on several occasions;

•she suffered from an extensive range of psychological conditions including chronic pain syndrome, chronic depressive neurosis, chronic low back syndrome, chronic semi-invalidism syndrome and chronic analgesic dependence.

These matters would clearly have alerted the defendant to the kind of case that would be mounted on behalf of the plaintiff if the matter came to trial and was an indication of the possible range of damages.  Although not expressly mentioned it would  involve a claim for future care since the particulars of the care given to the plaintiff by her daughter were set out in detail.
           The name of a number of doctors who had provided reports were set out in the Statement of Loss and Damage including that of Dr P Mulholland, psychiatrist and Dr Sharwood the treating orthopaedic specialist.  Dr Sharwood's report had indicated a 30% disability of the total person.
           No enquiry was made of the plaintiff's solicitors by the defendant if any anomaly was perceived between the amount of the offer to settle and the amount which could  be calculated by reference to the Statement of Loss and Damage.  An updated Statement of Loss and Damage was delivered in 1995.  No offer was made by the defendant in the light of the information contained in it.  No offer was made by the solicitors for the defendant consequent upon the settlement conference held pursuant to the Rules.  The issue of negligence was faintly pursued at trial although quantum and causation were in issue.
           From the above matters it can be inferred that the defendant did not contemplate accepting or making an offer to settle.  Had an enquiry been made or indeed some indication from the defendant that it was interested in settling the matter then there may have been some capacity to adjust the date from when the order for solicitor and client costs should date, Davies v. Fay [1995] 1 Qd. R. 509. In oral submissions when judgment was delivered the solicitor for the defendant submitted that the defendant had been misled by statements appearing in the reports attributed to the plaintiff that she had a prior back condition. That has not been pursued in written submissions. In any event some reports show the plaintiff as denying a previous back problem.
           Accordingly I am not persuaded that the defendant has shown that an order for costs other than that it pay the plaintiff's costs on a solicitor and client basis is proper.
           The order is that the defendant pay the plaintiff's costs of and incidental to the action to be taxed on a solicitor and client basis unless otherwise agreed.