Windsor v Queensland Railways
[1997] QSC 101
•6 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 115 of 1994
Mackay District Registry
Before the Hon. Justice Williams
[Windsor v. Queensland Railways]
BETWEEN:
WILLIAM JOHN WINDSOR
(Plaintiff)
AND:
QUEENSLAND RAILWAYS
(Defendant)
REASONS FOR JUDGMENT - GN WILLIAMS J
Judgment delivered 06/06/1997
CATCHWORDS COSTS - plaintiff made offer to settle less than judgment - defendant resisted solicitor and client costs order - conduct of defendant - failure to admit liability - defendant to pay plaintiff's costs on solicitor and client basis.
Counsel:S Jones QC with Dowling for plaintiff
M Gynther for defendant
Solicitors:Bill Cooper & Associates for plaintiff
Minter Ellison for defendant
Hearing Dates: 13, 14 and 15 May 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 115 of 1994
Mackay District Registry
[Windsor v. Queensland Railways]
BETWEEN:
WILLIAM JOHN WINDSOR
(Plaintiff)
AND:
QUEENSLAND RAILWAYS
(Defendant)
REASONS FOR JUDGMENT - GN WILLIAMS J
Judgment delivered 06/06/1997
The trial of this action took place on 13, 14 and 15 May 1997 at the sittings of the Circuit Court in Mackay. My reserved judgment was delivered on 22 May 1997. For the reasons then published judgment was entered for the plaintiff for $323,887.73.
After delivering those reasons I was informed that the plaintiff had made an offer to settle on 12 February 1997 in the sum of $285,000. As the amount of the judgment was in excess of the offer counsel for the plaintiff asked for costs on a solicitor and client basis.
Not only did the defendant resist the making of an order for costs on a solicitor and client basis, but it also submitted that the plaintiff should pay certain costs associated with the trial. I directed that each side furnish written submissions on the question of costs. The defendant's submissions are under cover of a letter from the defendant's solicitors, Messrs Minter Ellison, dated 29 May 1997. The plaintiff's submissions comprise a document received by fax from Jones QC, counsel for the plaintiff, dated 3 June 1997, and a further fax of that date from the solicitors for the plaintiff enclosing some correspondence.
In the statement of claim the plaintiff referred to three incidents which occurred in the course of his employment with the defendant; the first was on 8 May 1992, the second on 13 December 1993, and the third on 25 July 1994. In the statement of claim it was alleged that each incident was caused as a result of negligence on the part of the defendant; such negligence was particularised. The plaintiff had a back injury and it was alleged that one or more of those incidents was its cause. The defence essentially denied any matter relied on by the plaintiff in support of his claim.
In August 1996 the solicitors for the plaintiff informed the solicitors for the defendant that they intended obtaining a report from an Ergonomic Engineer with respect to the three incidents unless liability was admitted. That request was renewed by letter dated 3 September 1996. Apparently there was no specific response to either letter and a report from Geoff McDonald was commissioned. Under cover of a letter dated 2 December 1996 the solicitors for the plaintiff indicated that the vehicle involved in the third incident would be required for inspection by the engineer.
As late as 16 April 1997 the solicitors for the plaintiff gave notice to the solicitors for the defendant of the medical witnesses and others whom the plaintiff intended to call and sought an agreement as to the admission of reports. That letter also requested an indication as to whether or not liability would be admitted. There was no meaningful response on the issue of liability.
Against that background the trial commenced on 13 May 1997 with each of the three incidents in issue. The opening on behalf of the plaintiff made it clear that the incident on 8 May 1992 was regarded as the prime cause of the plaintiff's back condition, but the other incidents were being relied on either as causing a further injury or a worsening of the condition caused by the first incident. The cross-examination of the plaintiff was conducted on the basis that all three incidents were in issue.
After completion of the cross-examination of the plaintiff, and the taking of further evidence, counsel for the defendant, during the second day's hearing, conceded that there was a breach by the defendant of its duty of care with respect to the first incident and conceded liability to the plaintiff for loss and damage flowing from that.
I then drew counsel for the defendant's attention to the fact that on the medical evidence the events of 13 December 1993 and 25 July 1994 could well be regarded merely as incidents (with or without negligence on the part of the defendant) exacerbating the condition caused by the first incident. The defendant was not prepared to concede that position.
In those circumstances counsel for the plaintiff had no option but to proceed with the presentation of all evidence available to the plaintiff. By that stage all professional witnesses were on standby to give evidence later on the second day; few costs, if any, would have been saved by not calling them.
By its written submission on costs the defendant contends that in conformity with O.26 r. 9(1) it is appropriate that some other order be made than that the plaintiff recover costs on a solicitor and client basis. The orders proposed by the defendant are as follows:
That the defendant pay the plaintiff's costs of and incidental to the action on a party and party basis other than the plaintiff's costs of and incidental to the issue of liability in relation to the incidents of 13 December 1993 and 25 July 1994;
That the plaintiff pay the defendant's costs of and incidental to the liability in relation to the incidents of 13 December 1993 and 25 July 1994;
That the plaintiff pay the defendant's costs of the hearing on 15 May 1997.
The defendant maintains that it had good grounds for refusing to admit liability with respect to the second and third incidents. It also asserts that as at the date of the offer to settle, namely 12 February 1997, there was evidence to suggest that each of the three incidents had contributed to the plaintiff's condition. The argument contends that it was not until trial that it became clear that the weight of medical evidence considered that the first incident was the main cause of the plaintiff's condition.
It is true that I made no finding of liability against the defendant with respect to the second and third incidents; it was not necessary to do so. What occurred on those days, in the light of the medical evidence, only exacerbated the condition caused by the first incident. It was therefore relevant to look at those aggravations regardless of whether or not there was negligence associated with the incidents.
In my view it is not to the point for the defendant to say that the medical evidence became clearer at trial to the effect that it was only the first incident which was a real cause of the plaintiff's condition. That could have been ascertained either by the defendant speaking to the doctors who had already furnished reports, or by having some further examinations of the plaintiff carried out. The defendant was given a clear opportunity when it admitted liability on the second day of trial to concede that the other two incidents merely exacerbated the condition; if a clear acknowledgment of that had been made then additional witnesses may not have been called (though as already noted most expense had already been incurred with respect to such witnesses).
Given the stage at which the admission of liability with respect to the first incident was made, the legal representatives for the plaintiff cannot be criticised for not calling Drs White and MacFarlane earlier than they did. In the circumstances it was not through any fault on their part that the matter went into a third day. There is no basis on which the defendant can recover costs of that third day.
The evidence of negligence with respect to the first incident was, in my view, overwhelming. The drop-sides on the railway wagons in question were rusted and buckled. It was an extremely awkward procedure for two men to close those drop-sides given their defective condition. If negligence had been admitted with respect to that incident at an earlier point of time then undoubtedly it would have been possible for the legal representatives of both sides to get together and resolve the question whether or not it was necessary to call evidence with respect to the second and third incidents. The fact that that admission was made at such a late stage effectively prevented careful consideration being given to the implications which followed. The only reasonable option was to allow the trial to take its course.
The only matter which has troubled me is whether or not the costs associated with the calling of the engineer, Geoff McDonald, should be allowed. He was called on the afternoon of the second day, after the admission had been made, but clearly all expenses associated with his calling had been incurred prior to that admission. In the circumstances there is no proper basis on which I could order that his costs not be recoverable. Of course, it will still be for the taxing officer to determine what costs are recoverable with respect to his evidence.
I have taken into account all that has been said in the written submissions from either side. Ultimately I have come to the conclusion that the appropriate order is to allow the plaintiff solicitor and client costs on and from 12 February 1997, the date of the offer to settle. That does make some allowance for the various matters referred to by the defendant in the written submissions.
My order for costs will therefore be:
Order that the defendant pay the plaintiff's costs of and incidental to the action, taxed on a solicitor and client basis from and after 12 February 1997.
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