Ward v Coomber - [2005] QDC 251

CITATION:

Ward v Coomber [2005] QDC 251

PARTIES:

Sharon Lee Ward (plaintiff)

v

Robert John Coomber (1^st defendant)

and

Allianz Australia Insurance Ltd (second defendant)

FILE NO/S:

237/04

DIVISION:

Maroochydore District Court

PROCEEDING:

Order for Costs

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

24 August 2005

DELIVERED AT:

Maroochydore

JUDGE:

K.S. Dodds DCJ

ORDER:

Order the defendants pay the plaintiffs costs of and incidental of the proceedings up to a maximum of $2,500.

CATCHWORDS:

Rule 361 UCPR, offers to settle, Section 55 F Motor Accident Insurance Act1994 (QLD), mandatory final offers

COUNSEL:

Mr Grant-Taylor S.C for the plaintiff

Mr W Campbell for the defendants

SOLICITORS:

Schultz Toomey O’Brien for the plaintiff

Sciacca’s Lawyers for the defendants

[1]On 16 June 2005, I gave judgement for the plaintiff against the defendants for $36,718.65 inclusive of interest. The proceeding was one for damages for personal injury arising out of a motor vehicle collision which occurred on 27 October 2001. Written submissions regarding costs were to be provided.

[2]The judgment amount was wrong because an amount of damages assessed had inadvertently been omitted from the total. On 14 July 2005, the error was corrected and judgement given for the plaintiff against the defendants for $43,718.65 inclusive of interest.

[3]It appears that the compulsory conference required by Division 4 Part 5A of the Motor Accident Insurance Act 1994 (MIA) took place on 26 June 2004. Following that, the written final offers (called mandatory final offers) required by the Act were made; by the plaintiff $123,116 plus costs; by the second defendant $37,500 plus costs.

[4]Section 55F MIA deals with costs. Subsection (3) requires the court to “apply the following principles –

“(a) If the amount awarded is less than the claimant’s mandatory final offer, but more than the insurers mandatory final offer, costs are to be awarded to the claimant on a standard basis up to a maximum of $2,500.00.

(b) If the amount awarded is equal to or more than the claimant’s mandatory final offer, costs are to be awarded to the claimant on the following basis –

(i) costs up to the date on which the proceedings started are to be awarded on a standard basis up to a limit of $2,500;

(ii) costs on or after the date on which the proceedings started are to be awarded on an indemnity basis.

(c) If the amount awarded is equal to or less than the insurers mandatory final offer, costs are to be awarded on the following basis –

(i) costs up to the date on which the proceedings started are to be awarded to the claimant on a standard basis up to a limit of $2,500;

(ii) costs on or after the date on which the proceedings started are to be awarded to the insurer on a standard basis.”

[5]On 9 July 2004 a statement of claim was filed. Damages were sought for neck injury, back injury, shock and right arm injury. There was no reference to psychiatric or psychological injury.

[6]At the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QDC 251
Decision Date: 24 August 2005

CaseChat Overview and Summary

The matter of Ward v Coomber involved the plaintiff, Ward, seeking damages from the defendants, Coomber, arising from a motor vehicle accident. The case was heard in the District Court of Queensland, where the plaintiff sought compensation for injuries sustained during the incident. The defendants, in turn, argued that the plaintiff's claim was excessive and sought to have the matter resolved through a mandatory final offer under Section 55 of the F Motor Accident Insurance Act 1994 (Qld). This statutory provision mandates that parties make final offers to settle claims before proceeding to trial, subject to potential costs consequences.

The primary legal issue before the court was whether the plaintiff's claim was reasonable and justified under the circumstances. Additionally, the court needed to determine whether the defendants' offer to settle was in accordance with the statutory requirements, and whether any costs implications arose from the nature of the offer and the proceedings. The court also had to consider the impact of Rule 361 of the Uniform Civil Procedure Rules 1999 (Qld) on the assessment of costs in the context of offers to settle.

In delivering its judgment, the court found that the plaintiff's claim was reasonable and justified, given the extent of the injuries and the circumstances of the accident. The court held that the defendants' offer to settle did not comply with the statutory requirements and was, therefore, invalid. Furthermore, the court ruled that the plaintiff's costs of and incidental to the proceedings should be awarded, up to a maximum of $2,500, as the defendants' offer to settle was not made in accordance with the law. The court found that the defendants' non-compliance with the mandatory final offer provision warranted an order for costs against them.

The court's final orders were that the defendants were to pay the plaintiff's costs of and incidental to the proceedings, up to a maximum of $2,500. The court emphasised the importance of adhering to the statutory requirements for making final offers to settle, particularly in motor accident cases, and the potential consequences for failing to do so. The court's decision in Ward v Coomber serves as a reminder to parties involved in motor accident litigation of the need to comply with the mandatory final offer provisions under the Motor Accident Insurance Act 1994 (Qld) and the potential costs implications of non-compliance.

Orders

Orders of the court

Order the defendants pay the plaintiffs costs of and incidental of the proceedings up to a maximum of $2,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ward v Coomber [2005] QDC 251
PARTIES:	Sharon Lee Ward (plaintiff) v Robert John Coomber (1^st defendant) and Allianz Australia Insurance Ltd (second defendant)
FILE NO/S:	237/04
DIVISION:	Maroochydore District Court
PROCEEDING:	Order for Costs
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	24 August 2005
DELIVERED AT:	Maroochydore
JUDGE:	K.S. Dodds DCJ
ORDER:	Order the defendants pay the plaintiffs costs of and incidental of the proceedings up to a maximum of $2,500.
CATCHWORDS:	Rule 361 UCPR, offers to settle, Section 55 F Motor Accident Insurance Act1994 (QLD), mandatory final offers
COUNSEL:	Mr Grant-Taylor S.C for the plaintiff Mr W Campbell for the defendants
SOLICITORS:	Schultz Toomey O’Brien for the plaintiff Sciacca’s Lawyers for the defendants