Wilby v Zeehan Medical Union Inc

[1991] TASSC 128

Serial No B14/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Wilby v Zeehan Medical Union Inc [1991] TASSC 128; B14/1991

PARTIES:  WILBY, Sandra Jean
  v
  ZEEHAN MEDICAL UNION INC

FILE NO/S:  WC4/1990
DELIVERED ON:  15 April 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B14/1991
Number of paragraphs:  8

Serial No B14/1991
List "B"
File No WC4/1990

SANDRA JEAN WILBY v ZEEHAN MEDICAL UNION INC

REASONS FOR JUDGMENT  ZEEMAN J

15 April 1991

1. The plaintiff commenced proceedings to recover certain sums alleged to be payable by the defendant pursuant to s8A(1)(a) of the Workers' Compensation Act 1927 arising out of personal injury suffered by the plaintiff in the course of her employment with the defendant on 8 March 1987. The sums claimed related to treatment which the plaintiff received at the Flinders Medical Centre in Adelaide in November 1989. Subsequent to the institution of the proceedings, the defendant admitted liability for the amount claimed and the same were paid by the defendant's insurer. The amount claimed in the action was $2,066.00, although by reason of an arithmetical error and an omission to particularise all the items claimed, the plaintiff expressed the amount claimed to be somewhat lower. The action came before me merely to determine the plaintiff's application for the costs of the action (including reserved costs). That application was resisted by the defendant.

1. In the light of the way in which the matter was put before me, I am able to assume that the amount claimed by the plaintiff was an amount representing reasonable costs of services of the type referred to in s8A(1)(a) and that a claim for that amount had been effectively raised by the plaintiff. The only matter that I need to consider is whether in the exercise of my discretion, the plaintiff should have her costs of the action or not or whether she should have only some of her costs.

1. The plaintiff has been wholly successful in her action and therefore prima facie the costs should follow the event. However, the defendant submitted that the plaintiff acted prematurely and unreasonably in instituting the proceedings when she did and that for this and other reasons she ought to be deprived of her costs. In order to consider the submissions which have been made, it is appropriate to set forth in abbreviated form the chronology of events which was placed before me. That chronology contained the following:

(a)On 8 March 1987 the plaintiff was injured in the course of her employment with the defendant when she jammed a big toe under a stretcher. She completed a form of claim for workers compensation, including a general form of authority enabling the defendant to obtain medical reports from those who might attend the plaintiff from time to time.

(b)As a result of her injury, the plaintiff was incapacitated for a period and was paid weekly compensation by the defendant during that period of incapacity.

(c)On 5 April 1989 the plaintiff received advice from her medical specialists that she obtain treatment, not available in Tasmania, interstate. As a consequence, the plaintiff's solicitors wrote to the Tasmanian Government Insurance Office, being the insurer of the defendant, seeking an assurance that if the plaintiff obtained such treatment, the costs thereof and associated expenses would be paid by the insurer.

(d)Consequent to that letter, there were discussions between the plaintiff's solicitors and the solicitor for the defendant, who no doubt had been instructed by the insurer, as to the plaintiff obtaining treatment interstate.

(e)On 6 July 1989 the plaintiff's solicitors provided to the defendant's solicitors a copy of a report from Dr E. Mok, a consultant anaesthetist, in support of the plaintiff's claim that if she obtained treatment at the Flinders Medical Centre in Adelaide, it ought to be paid for by the defendant. Dr Mok's report indicated that he had exhausted all possible forms of treatment, but that nevertheless the plaintiff was still left with considerable pain. He recommended that she attend the Pain Clinic at Flinders Medical Centre in Adelaide, which he described as being a world renowned centre for the treatment of pain. He completed his report by saying, "I hope this information will be of help to you to persuade the insurer to pay the costs of Sandra's trip."

(f)By facsimile transmission of 24 August 1989 the defendant's solicitors told the plaintiff's solicitors that they had received instructions that "all your client's accounts for treatment at the Flinders Medical Centre will be paid including travel expenses .... Please forward to us a report from the treating doctor at the Flinders Medical Centre advising what treatment was given and their prognosis for its success."

(g)The plaintiff duly attended at the Flinders Medical Centre in July 1989 (i.e. prior to the defendant confirming that it would pay) and the costs and expenses relating thereto were paid by the insurer.

(h)Without further reference to the defendant or its insurer, in November 1989 the plaintiff returned to the Flinders Medical Centre for further treatment and on 5 January 1990 the plaintiff personally wrote to the insurer requesting that the costs and expenses relating thereto be reimbursed. The insurer did not acknowledge that request, did not request any further details and did not attend to payment.

(i)On 21 March 1990 the plaintiff instituted proceedings under the Act claiming the costs referred to in the plaintiff's claim submitted to the insurer. The summons was served on 9 April 1990 and a defence filed on 12 April 1990. That defence inter alia indicated that the defendant would pay the amount claimed if it were established that the expenses had been properly incurred by the plaintiff as a result of her injury at work.

(j)On 27 August 1990 the plaintiff provided the defendant with a copy of a report from the Flinders Medical Centre which the defendant concedes established the plaintiff's entitlement to be paid the amount claimed in the action.

(k)On 24 December 1990 the defendant admitted liability for the amount claimed.

(l)On 13 March 1991 the insurer paid the amount claimed.

1. In setting out this chronology, I have omitted many of the matters put before me. I do not ignore any of them, but consider the matters which I have set out as being the principal matters to consider.

1. I accept the submission made by the defendant that the defendant's solicitors' reference to "all your client's accounts" when read in the context of Dr Mok's report ought to be construed as indicating an agreement to pay all accounts relating to the particular proposed trip to Adelaide and ought not to be construed as extending to any future trips. I also accept the defendant's submission that the plaintiff was not acting reasonably in instituting the proceedings when she did. She ought not to have assumed that the defendant had agreed to pay the costs relating to the second trip to Adelaide. Whilst it may be said that the insurer did not act reasonably in not responding to the plaintiff's request of 5 January 1990, it was also not reasonable for the plaintiff to peremptorily institute proceedings without any enquiry as to whether that claim would be met or whether any further details were required. Nevertheless, I do not consider that my conclusion that the plaintiff acted unreasonably in these respects disposes of the matter.

1. I consider that the subsequent delays on the part of the defendant, or in reality its insurer, were quite unreasonable. On any view, once the report of the Flinders Medical Centre was sent on 27 August 1990 the defendant was in possession of material making it quite plain that the plaintiff's claim was well founded. Despite this, it took the defendant almost four months to admit liability. The matter did not stop there. Having admitted liability, it took the defendant another 2½ months to make payment. The defendant does not seek to justify or explain these delays. They were gross delays. Plainly the plaintiff would have been fully justified in instituting proceedings upon the defendant failing to make payment after it had had a reasonable opportunity of considering the report of the Flinders Medical Centre. Not only were there these gross delays after the plaintiff had established her entitlement to the satisfaction of the defendant, but thereafter the plaintiff was required to take a number of interlocutory steps to try and get this case on. The cavalier manner in which the defendant, or more probably its insurer, approached this matter is indicated by the following matters. On 28 November 1990 (when the defendant had been in possession of the material which it concedes established its liability to pay the amount claimed for some three months) the defendant consented to the making of an order that the defendant sign a certificate of readiness within seven days of receipt. The certificate was sent to the defendant's solicitors on 29 November 1990, but the defendant ignored the requirements of that order. The certificate was never signed by the defendant's solicitors.

1. I have concluded that it is proper that the plaintiff have her costs of the action, save and except to the extent (if any) that those costs were increased by the fact that the proceedings were instituted prior to 17 September 1990 (being 21 days of the report of the Flinders Medical Centre having been sent to it). Counsel for the plaintiff submitted that costs ought to be ordered on Table A upon the basis that subsequent to the institution of the proceedings, the plaintiff underwent further treatment and that the costs relating to such treatment were also the subject of dispute. Those costs were never made the subject of the action and I am not persuaded that I ought to depart from the applicable column of Table B.

1. Accordingly, I order that judgment be entered for the plaintiff for her costs of the action (including reserved costs) to be taxed (excluding such costs, if any, as were occasioned by the plaintiff commencing the action prior to 17 September 1990), such costs to be taxed on the Third Column of Table B.