WILLIAMS v Taylor
[1999] WADC 19
•4 AUGUST 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WILLIAMS -v- TAYLOR [1999] WADC 19
CORAM: NISBET DCJ
HEARD: 15 JULY 1999
DELIVERED : 4 AUGUST 1999
FILE NO/S: CIV 4031 of 1997
BETWEEN: JULIE ANNE WILLIAMS
Plaintiff
AND
ELAINE ANNE TAYLOR
Defendant
Catchwords:
Costs - Offer of compromise below judgment - Offer silent on special damages - Assumptions of parties as to offer being inclusive or exclusive of special damages - Proper order to make.
Legislation:
Nil
Result:
Plaintiff awarded costs only up to date of O24A offer.
Representation:
Counsel:
Plaintiff: Mr T H Offer
Defendant: Mr P D Quinlan
Solicitors:
Plaintiff: Leonard Cohen & Co
Defendant: State Crown Solicitor
Case(s) referred to in judgment(s):
Anderson v Littlemore [1985] WAR 157
Zahalka v Miles & Dally (1991) 7 SR (WA) 230
Case(s) also cited:
Nil
NISBET DCJ: On 22 April 1999 following a trial on 6, 7, and 8 April 1999 I gave judgment for the plaintiff in the sum of $30,319.91 of which sum the sums of $900.00 and $5,731.36, a total of $6,631.36 had been paid by the defendant.
Following the delivery of judgment the defendant moved for an order for costs from and including the date of an offer it had made for settlement of the plaintiff's claim pursuant to the provisions of O24A of the Rules of the Supreme Court which offer was dated 20 December 1998 and was in these terms:
"Pursuant to O24A of the Rules of the Supreme Court 1971, the defendant hereby offers to settle this matter on the following terms:
TOTAL: $27,500
The plaintiff's legal costs to be agreed between the parties or taxed if agreement cannot be reached."
The plaintiff's response was to serve an O24A offer of compromise of her own, the relevant portion of which reads as follows:
"2.The plaintiff offers to compromise her claim for damages for personal injuries arising out of the motor vehicle accident which occurred on 13 May 1994 on the following terms:
2.1payment of the sum of Forty Seven Thousand Dollars ($47,000);
2.2payment of the plaintiff's costs of the action (including disbursements) up to and including the date of the acceptance of this offer to be taxed, if not agreed."
Surprisingly, having regard to decisions of the Full Court of the Supreme Court in Anderson v Littlemore [1985] WAR 157 and in this Court in Zahalka v Miles & Dally (1991) 7 SR (WA) 230, each of the offers of compromise was silent as to special damages in a situation in which as is well known in Western Australia in claims for damages for personal injuries arising out of motor vehicle collisions, the defendant is represented by its compulsory third party insurer the State Government Insurance Commission which, in cases where liability is admitted, invariably meets ongoing medical expenses incurred by a plaintiff. There are cases, of course in which the Commission, disputing its liability to make such payments, declines, but on the evidence before me this was not one of those cases.
The plaintiff did not fully plead out her claim for special damages. Whilst some particulars were given there was a quite inadequate particularisation of her claim - see paras 9, 10 and 11 of the statement of claim.
Before trial, in conformity with practice directions of the court the plaintiff filed some schedules but again the information provided was scant. The plaintiff's schedule of past medical expenses for example reads as follows:
"1.Medical Expenses Paid by Plaintiff:
Dr Tan - $54.00.
2.Outstanding medical expenses.
3.All other special damages incurred to date have been paid by the Insurance Commission of Western Australia"
Obviously the plaintiff did not regard her lost earnings from the date of her injuries through until trial as being special damages because certainly these had not been paid by the Insurance Commission of Western Australia although she had received an advance of $900 against her claim for loss of earnings.
When the case was opened for the plaintiff at trial and during the course of the trial very little attention was paid to the issue of special damages save for the quantification of the plaintiff's claim for past loss of earnings in respect of which the evidence focussed on the plaintiff's lost working time and eventually most of this was agreed as well.
As can be seen the plaintiff's judgment net of those amounts already paid by the defendant at the time of judgment amounts to $23,688.55.
Following delivery of judgment counsel for the defendant moved for an order for costs from the date of his client's offer of 20 December 1998. The motion was opposed by counsel for the plaintiff, the argument revolving round how the defendant's offer was to be read, that is to say as inclusive of amounts then already paid by the Commission or exclusive of those amounts in the sense that the plaintiff was to receive in her hand (if the offer was accepted) the sum of $27,500.
After hearing the parties and examining the affidavits filed by each I have come to the conclusion that having regard to the great disparity between the respective positions of the parties before trial as is evidenced by their respective offers of compromise made pursuant to O24A, neither party ever discussed with the other the status of the special damages already paid by the Commission in the context of each of the offers. I am therefore left in the position of attempting to determine as best I can the probable understanding of each of the parties in respect of the offers and in this regard I find that it is more probable than not that the plaintiff understood the defendant's offer to be an offer exclusive of special damages already paid by the Commission. That is to say it was an offer that she would receive net in her hands the sum of $27,500 from which she would be obliged to pay any as then unpaid special damages. This, I think, is determinative of this issue although it could fairly be said as well I think that the plaintiff was so unrealistic in her claim that she did not care whether the defendant's offer was inclusive or exclusive of special damages already paid by the Commission.
In the circumstances then the ordinary rules should apply and my orders as to costs will be as follows:
1.The defendant do pay the plaintiff's costs of the action up to and including 20 December 1998.
2.The plaintiff do pay the defendant's costs of the action to be taxed from and including 29 December 1998.
3.Each of the taxed costs of the plaintiff and the defendant be set off the one against the other.
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