Viher v Miles Transport Pty Ltd (Ruling)
[2019] VCC 1086
•23 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-03356
| LOUIE VIHER | Plaintiff |
| v | |
| MILES TRANSPORT PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2019 | |
DATE OF JUDGMENT: | 23 July 2019 | |
CASE MAY BE CITED AS: | Viher v Miles Transport Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1086 | |
RULING
---
Subject: COSTS
Catchwords: Assessment of pain and suffering damages of $25,000 – less than the statutory threshold – whether the defendant was entitled to judgment and an order for costs
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Viher v Miles Transport Pty Ltd [2019] VCC 1008; Cook v Karden Disability Support Foundation [2016] VSCA 263
Judgment: There be judgment for the defendant with an order for its costs of the proceeding.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr M Hooper | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 After a trial over 17, 18 and 19 June 2019, I delivered Judgment on 11 July 2019.[1] Following the publishing of my Reasons for Judgment, the defendant applied for judgment in its favour and for an order for costs.
[1][2019] VCC 1008
2 At first I was not convinced that there was a basis upon which the defendant should have judgment or costs. I adjourned the defendant’s application for judgment and costs to 9.30am on 16 July 2019.
3 Mr Hooper of counsel appeared for the defendant. The plaintiff appeared in person.
Some background
4 I found that the injuries suffered by the plaintiff on 19 July 2013 were caused by the negligence of the defendant. I assessed damages at $25,000.
5 In accordance with the regime prescribed under Division 8A, the plaintiff and the defendant complied with the steps referred to in s134AB(12) of the Accident Compensation Act 1985 (“the Act”).
6 The parties attended a conference within 21 days after the response date. The defendant made a statutory offer of zero. It informed the plaintiff of that statutory offer under cover of a letter dated 6 June 2017. The plaintiff subsequently rejected that offer. He made a statutory counteroffer of $100,000. The defendant rejected that offer.
7 After each of these steps had been taken in compliance with ss(12), the plaintiff commenced the proceeding by writ endorsed with a statement of claim.
The Defendant’s submission
8 The failure of the plaintiff to establish a liability to pay damages in excess of 90 per cent of his statutory counteroffer has a number of cost ramifications. It is unnecessary to recount what those ramifications are except to note that the assessment of damages of $25,000 is less than 90 per cent of his statutory counteroffer, but more than the defendant’s statutory offer.
9 Subject to what I will refer to below, if the plaintiff could obtain judgment for $25,000, then the effect of that would be that each party must bear their own costs: ss(28)(d).
10 However, ss(22) provides for a statutory threshold for pain and suffering damages. The assessment of damages of $25,000 is well under the current threshold.
11 The defendant submitted that ss(22) prohibits the Court from entering judgment in favour of the plaintiff for $25,000. The relevant part of ss(22) is as follows:
“A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury—
… .”
12 The next relevant part of ss22 is paragraph (b)(i) which provides that the Court must not award to a worker pain and suffering damages if the total pain and suffering damages assessed is less than the statutory threshold.
13 The defendant submitted the use of the word “award” is of no great moment. I agree. The use of the word “award” is unusual. It is a word more customarily in usage in workers’ compensation cases where a sum of compensation is awarded to a worker; however, in this context, in order to award the plaintiff any damages, it must take a manifest form, and that manifest form is a judgment in his favour.
14 Clearly, ss(22) operates to prohibit the plaintiff from being awarded $25,000 manifested as an enforceable judgment against the defendant.
15 The defendant submitted that it is then necessary to go to ss(28), and relevantly to the following:
“In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12)—
(a)if no liability to pay damages is established, the worker must pay the party and party cost of the employer, Authority or self-insurer and the worker’s own costs;
… .”
16 The defendant submitted that the words “no liability to pay damages” must be interpreted to mean that if the Court cannot award the plaintiff $25,000, then it must follow that no liability to pay damages has been established by an enforceable judgment. That seems to me to be a proper interpretation of the effect of ss(22) and ss(28).
17 The defendant was unable to point to any authority in support of its interpretation of ss(22) and ss(28). It did refer me to Cook v Karden Disability Support Foundation.[2] The Court of Appeal considered an appeal based upon whether the jury’s assessment of pain and suffering damages was manifestly inadequate. In a preamble to the principal issue, the Court made the following observation:
“Section 134AB(22) of the Act provided that if the total pain and suffering damages assessed, before the reduction (if any) for contributory negligence, was less than $58,100, a court could not award pain and suffering damages. As a result of the operation of s 134AB(22), the applicant was not entitled to an award of damages against the respondent, judgment was entered for the respondent, and the applicant was ordered to pay the respondent’s costs of the proceeding below.”[3]
[2][2016] VSCA 263
[3]Paragraph [5]. Footnote removed.
18 The interpretation of ss(22) and ss(28) were not the subject of any further observation by the Court; however, the content of the observation makes it clear to me that the Court was aware of the statutory basis upon which such an order could be made, and saw no reason to consider the question further.
19 The Court did not consider that it was necessary to go beyond the wording of ss(22). Inherent in its observation is reasoning that falling under the statutory threshold denies the worker the entitlement to an award (or a judgment), and by inference, that exposed the plaintiff to the cost liability referred to in ss(28).
Conclusion
20 I considered whether the use of the word “award” was distinguishable from the conventional understanding of what constitutes a judgment, and whether the plaintiff could move for judgment, but without a reference to any damages.
21 I also considered whether the words “liability to pay damages” could be interpreted very differently. I considered that a liability had been established, because I assessed the plaintiff’s damages at $25,000. I considered that that immediately created a liability in the defendant to pay those damages.
22 This interpretation would lead to an entitlement on the part of the plaintiff to move for judgment with the damages of $25,000 being found and recorded with some prohibition recorded in the judgment that the plaintiff was not entitled to recover those damages. This would lead to the plaintiff not being entitled to recover costs, but to bear his own costs.
23 I felt compelled to determine what other interpretation was open, given that it was very evident that the plaintiff did not comprehend his exposure to costs, and the complexities of the relevant provisions of the Act.
24 In the circumstances, I consider that the interpretation to be preferred is the one contended for by the defendant. I will, therefore, enter judgment for the defendant against the plaintiff. I will order that the plaintiff pay the defendant’s costs, including any reserve costs, to be assessed by the Costs Court on a standard basis, in default of agreement.
- - -
0
2
1