DISTRICT COURT OF QUEENSLAND
CITATION:
Wallace v RSL Care Limited (No 2) [2017] QDC 179
PARTIES:
JILLIAN WALLACE
(plaintiff)v
RSL CARE LIMITED
(defendant)FILE NO/S:
1392/2013
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
23 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
21 June 2017
JUDGE:
Reid DCJ
ORDER:
The plaintiff pay the defendant’s costs thrown away by reason of the adjournment of the trial on 7 November 2016, to be assessed on a standard basis.1.
The defendant otherwise pay the plaintiff’s costs of and incidental to the action to be assessed on a standard basis incurred.2.
The plaintiff’s application for certification for two counsel is dismissed.3.
CATCHWORDS:
COSTS – ASSESSMENT OF COSTS – whether to certify costs of two counsel – costs of adjournment – where statement of loss and damage was not updated – where rule 549 of the UCPR was not complied with
COUNSEL:
R Morton and J Sorbello for the plaintiff
S Gray for the defendantSOLICITORS:
Morton & Morton for the plaintiff
BT Lawyers for the defendant
On 21 June 2017, I gave judgment for the plaintiff in her claim for damages for personal injury arising out of her employment with the defendant. As a result of my judgment the parties agreed that I should order that the defendant pay the plaintiff’s costs of the action from 25 March 2013 to be agreed, or failing agreement to be assessed, on the standard basis.
Two issues remain for my determination.
As is apparent form my trial judgment, the plaintiff was represented by two junior counsel. The plaintiff asks that I certify for the costs of two counsel. That is opposed.
The matter originally came on for trial before me on 7 November 2016. The matter was on the day adjourned to 19 December when the trial proceeded. The reason for that adjournment was that the defendant required the plaintiff to be re-examined by Dr Morgan. It was not disputed, and could not sensibly be disputed, that such further examination was necessary. The question of which party, if either, should pay the costs of that adjournment, which were reserved by me on 7 November, involves consideration of the circumstances in which the defendant was notified that the plaintiff had surgery, performed by Dr Peereboom, on her injured foot in August 2015.
Two counsel
The plaintiff submits that allowing for two counsel is appropriate because:
“(a) The defendant required the plaintiff to prove all matters, including maintaining a denial that the incident even occurred…;
(b) There was (sic) complex issues of causation in respect of the occurrence of the DVT and the pulmonary embolism;
(c) Voluminous documentary evidence was utilised at the trial, including a three volume tender bundle, together with a 37 page chronology prepared for the tender bundles.”
Counsel for the defendant opposes that course. He submits that standard costs involve allowance “for all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the plaintiff”, as provided for in r 702 of the UCPR. The determination of such costs involves a costs assessor exercising a broad discretion given to her or him by r 721 thereof.
In Stanley v Phillips [1966] 115 CLR 470, Barwick CJ set out, at p 479-80, that the question which here arises is to be determined by considering whether “the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented to the court in such a manner that justice can be done between the parties”. His Honour said:
“The important matter is to recognize that the question is not whether one member of the Bar will present the case better than another. The question for the taxing master is whether the case by reason of any of its features, the volume of material to be handled, the number or character of the witnesses to be examined, the nature or extent of the cross-examination required, the anticipated length of the case, the complexity of its issues of fact or of law, the extent of the preparatory research of fact or of law to be undertaken, the involvement of charges of fraud, or other serious imputations of personal reputation or integrity, the complexity of the required presentation and so on, make it reasonably necessary or proper that the services of two counsel be engaged in order that the court may do justice between the parties.”
Having heard and determined the matter, I am not disposed to certify that two counsel were required by the plaintiff in order to present the case in such a manner that justice could be done. Whilst not straightforward, the matter was not unusually complicated. The trial occupied three days. Not a large number of expert witnesses were called. Whilst the volume of material was significant, it was not such as to require the services of two counsel to achieve justice. Whilst it may have been in the plaintiff’s interest to have two counsel, the matter was not such that I would certify that such expense be allowed on the standard basis assessment between the plaintiff and the defendant.
I refuse the request to certify for two counsel.
Costs of adjournment
The matter was commenced by a claim and statement of claim on 22 April 2013. The defendant’s notice of intention to defend and defence was filed on 31 May and the plaintiff’s statement of loss and damages was served on 20 June 2013. The matter was entered for trial on 21 November 2013 and the first trial date allocation was made on 12 May. That was vacated due to a need for investigation of the plaintiff’s lumber spine and hip symptoms, which developed from in about December 2014 after the statement of loss and damage. A new trial of 7 November 2016 was set on 22 April 2016. That of course was some time after Dr Peereboom’s surgery on the plaintiff’s ankle which was performed on 31 August 2015.
I note on 23 March 2015, the plaintiff’s solicitor had written to the defendant’s solicitor advising that Dr Peereboom had suggested an arthroscopy (see para 2 of the affidavit of Adrian Lamb filed by leave on 7 November 2016). So too, on 15 June 2015, the defendant’s solicitor disclosed to the plaintiff general practitioner records of the plaintiff’s doctor which referred to Dr Peereboom being involved in the plaintiff’s care and making reference to his wanting to perform a “scope” or a “guided local anaesthetic injection”.[1]
[1]See para 3 and 4 of Mr Lamb’s affidavit.
It is curious to note that Dr Morgan’s report of his examination of the plaintiff on 29 July 2015 (Exhibit 1, tab 22C of the trial bundle) makes no mention of Dr Peereboom. Presumably the plaintiff made no mention of her seeing him during that consultation. Dr Morgan does refer to the plaintiff having had physiotherapy and of using medication for pain relief. He refers to her having been referred to Dr Lucas, a neurosurgeon, for her lumber spinal problems. He opines that “she does not require any operative intervention”.
Despite having been provided with this report of Dr Morgan, the plaintiff and/or her legal advisors did not specifically explain or advise the defendant that in fact an injection of local anaesthetic had been done by Dr Peereboom, or that on 19 March 2015. In relation to that procedure, Dr Peereboom said “she had a great response” with what the plaintiff described to him as “about 50% relief and she walked around better than she had in ages…I explained to her that we should be able to achieve the same relief by doing an arthroscopy” (see tab 14A of Exhibit 1, p NA5). Nor did she or her advisors specifically disclose to the defendant’s solicitor that Dr Peereboom had in fact performed the arthroscopy on 31 August 2015 or that, when she saw him, as detailed in the report of Dr Peereboom to the plaintiff’s general practitioner of 10 September 2015, that “she states she had a number of days with absolutely no pain at all, and is now feeling a bit stiffer and tighter. I explained that this is perfectly normal for this stage”.
In his report of 11 November 2015, as set out in my trial judgment, Dr Peereboom said at that time that the plaintiff had returned and:
“Her ankle is going along extremely well. She feels a significant decrease in the pain and she is at the stage now where she feels that she can get back to work and use the limb. She is walking without a limp and whilst she is still aware of the ankle she is not particularly troubled by it and I think it reasonable for her to go back to work and to use the limb normally.”
It is against that background that one must consider the plaintiff’s obligations to the defendant in the conduct of the action.
The underlying philosophy of the Uniform Civil Procedure Rules is set out in r 5 which provides:
“5 Philosophy—overriding obligations of parties and court
(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
Example—
The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.”
Personal injury claims are more particularly subject to Pt 2 of ch 14 of the UCPR. Rule 547 thereof requires the plaintiff’s statement on loss and damage to, inter alia,
- set out details of any disability;
- provide details of the party’s pain and suffering and of their loss of amenities;
- provide details of any amount sought as damages (which necessarily must include expenses associated with attendance on Dr Peereboom);
- the name and addresses of all doctors who have examined the plaintiff;
- documents in her possession or under her control about her injuries or treatment; and
- details of any accident, injury or illness suffered by the plaintiff since the injury.
Additionally, rule 548 of the UCPR requires the plaintiff’s statement of loss and damage to identify documents including, inter alia, hospital and medical reports and accounts. Importantly r 549(2) provides:
“If there is a significant change in information given in the Statement of Loss and Damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the Statement.”
In this case the trial date of 7 November 2016 was set, as I have said, on 22 April 2016 well after Dr Peereboom’s infection of March 2015 or surgery of 31 August and well after his being told by the plaintiff of the information I have set out in his reports of March, August and December 2015 and, necessarily, after he had given her advice as therein set out.
There can be no doubt that the plaintiff was under a clear obligation to advise the defendant of the fact and outcome of that surgery in a supplementary Statement of Loss and Damage as required by r. 549. That is especially so in circumstances where I have found, consistent with Dr Peereboom’s reports, that the surgery did in fact have a significant ameliorating effect on her condition and so on her damages. Even if that were not so as the plaintiff asserted, the fact that such surgery had been performed and was not successful, would in my view constitute a significant change in information, requiring details of that unsuccessful surgery to have been advised to the defendant.
Not to have disclosed it until a late stage, as I shall shortly come to, in my view was a breach of the obligations the plaintiff took upon herself when she commenced proceedings, having regard to the overall philosophy of the rules set in r 5, and the particular provisions of the Uniform Civil Procedure Rules relating to actions for personal injury.
The plaintiff’s counsel in submissions opposing the defendant’s application that the plaintiff pay the costs of the adjournment said that:
1. The defendant was provided with a letter of her GP of 6 January 2016 enclosed with a letter from the plaintiff’s solicitors of 10 August 2016. The GP’s letter refers to the plaintiff having had surgery to her foot and was able to return to nursing treatment;
2. Even prior to that letter the defendant’s solicitors were notified of the surgery occurring by virtue of the Medicare Notice of Charge of 5 May 2016 which had been earlier provided and which included such surgery costs.
The plaintiff’s counsel submitted that in such circumstance the defendant had ample opportunity to arrange for the plaintiff to be re-examined by Dr Morgan prior to the trial of 7 November 2016.
In my view the fact of those two matters does not overcome the fact the plaintiff did not comply with the provisions of the UCPR, r.549 to notify the defendant of significant changes in the plaintiff’s circumstances. In my view it is not sufficient to rely on the details of the Medicare Notice of Charge. It is true that, as a result of examining such a notice, a particularly diligent solicitor might perhaps have picked up that that surgery had been performed and might have contacted Dr Peereboom to ascertain the outcome. That is not however how litigation should be conducted.
Even the letter of 10 August 2016 did not properly inform the defendant. Moreover, the defendant’s solicitor, in an affidavit sworn by him attests that the GP’s report was not included with the letter sent to him. The defendant’s solicitor has sworn an affidavit saying that due to his oversight, he did not follow that missing GP’s letter matter up with the plaintiff’s solicitor. That is unfortunate. If he had done so, a diligent solicitor might have then ultimately contacted Dr Peereboom and the need for the adjournment on 7 November might have been overcome. In my view however, the primary fault, indeed the overwhelming fault, in this case relies upon the plaintiff’s solicitor in not complying with the clear obligations to ensure that the Statement of Loss and Damage is kept up-to-date.
Even the Statement of Loss and Damage which was subsequently filed on 2 November 2016, together with an Amended Statement of Claim which significantly increased the plaintiff’s claim for damages, there is no specific mention of the surgery being performed by Dr Peereboom or of the success of that operation.
Only very shortly before trial did it become apparent to the defendant’s solicitors that Dr Peereboom had performed the operation. As a consequence of that, Dr Morgan was engaged to provide an updated report. He was not able to see the plaintiff for the purpose of providing such a report prior to the trial. For that reason the trial which was to commence on 7 November was adjourned to 19 December, when I commenced hearing it.
Although the defendant’s solicitors are not entirely free from blame, having regard in particular to their failure to have chased up the omission of the plaintiff’s solicitors to have included the general practitioner’s report referred to in the letter of 10 August, in my view the overwhelming fault is that of the plaintiff and/or her legal advisors. Their obligation was in the circumstance of this case to clearly advise the defendant in clear terms of the operation on 31 August and of its outcome. They failed to do so. In my view that was the cause of the trial on 7 November having to be adjourned.
In that circumstance I will order that the plaintiff pay the defendant’s costs, thrown away by reason of the adjournment of the trial on 7 November, to be assessed on the standard basis. I do not in circumstances where the defendant’s solicitor was himself not entirely free from blame as I have outlined.
The orders of the court are therefore:
1. The plaintiff pay the defendant’s costs thrown away by reason of the adjournment of the trial on 7 November 2016 to be assessed on a standard basis.
2. The defendant otherwise pay the plaintiff’s costs of and incidental to the action incurred from 25 march 2013 to be assessed on a standard basis.
3. The plaintiff’s application for certification for two counsel is dismissed.