Wilson v CMS Morgen Ltd & anor (No 2)

[2008] NSWDC 51

CITATION:	Wilson v CMS Morgen Ltd & anor (No 2) [2008] NSWDC 51
HEARING DATE(S):	20/3/08
EX TEMPORE JUDGMENT DATE:	20 March 2008
JUDGMENT OF:	Sidis DCJ
CATCHWORDS:	Costs - Indemnity order against defendants where defences totally without merit - Final orders
PARTIES:	Bubbles WILSON CMS MORGEN LTD DAVID CAMPBELL BUILDING SERVICES P/L
FILE NUMBER(S):	Newcastle 561/06
SOLICITORS:	Plaintiff - Bale Boshev 1st Defendant - Thompson Cooper Lawyers 2nd Defendant - Curwood Lawyers

JUDGMENT

1 In this matter reasons for judgment were delivered on 14 March 2008 and the proceedings adjourned to today to allow the parties to make submissions in respect of costs. It is necessary to make a minor adjustment to the figures that were set out in the reasons. The amount allowed for past income loss should be $22,520, rather than the $22,720 appearing in the reasons. The result is a recalculation of past superannuation to $2,026.80 and a total award of $222,307.40.

2 On the issue of costs, the plaintiff relies upon an offer of compromise served on 24 January 2008 in the sum of $170,000, to ask for indemnity costs from the date of the offer of compromise. Further, the plaintiff asks for indemnity costs on the basis that breach of duty of care was denied by both defendants up until the date of trial, that is 10 March 2008.

3 The defendants oppose any order for indemnity costs. It is said that on the question of damages, the medical advisors for each party were at issue, and it was reasonable for the defendants to proceed, notwithstanding the offer. However, the basis upon which the defendants put forward their medical evidence was that the plaintiff suffered from significant pre-existing conditions in her neck and her back. This was put forward because it was said there were clinical notes of her general practitioners indicating treatment for these areas of her body prior to the accident. On examination of those clinical notes it was patently evident that there were no such conditions and anyone reading those notes would have appreciated that the medical evidence put forward for the defendants was based on a false premise.

4 In my view the plaintiff is entitled to indemnity costs from the date of the offer of compromise.

5 As to the issue of liability, the plaintiff’s injury was suffered when a panel of gyprock fell upon her head in premises owned by the first defendant and occupied by the second defendant. In my view there was no clearer case of liability and it seemed to me that the defendants’ main issue was the apportionment of liability as between themselves, rather than the question of their liability to the plaintiff. I am advised that there would be little by way of cost to the plaintiff on the liability issue since no expert evidence was filed on her behalf. Regardless, there must have been some cost involved that could have been avoided had the defendants owned up to their responsibilities at an earlier stage.

6 The revised calculations handed up will be marked Exhibit Q.

ORDERS

1. Verdict and judgment for the plaintiff in the sum of $222,307.40.

2. The defendants are to pay the plaintiff’s costs:

(a) in respect of liability on an ordinary basis up to and including the date of the filing of their respective defences and on an indemnity basis thereafter.

(b) on the issue of quantum on an ordinary basis up to and including 21 January 2008 on an ordinary basis and on an indemnity basis thereafter.

3. The exhibits may be returned.

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