Cremona -v- RTA [2000] NSWSC 735

THE SUPREME COURT OF NEW SOUTH WALES (COMMON LAW DIVISION)

No. W74/95 - Minna Maarit Cremona -v- RTA 1 The judgment as to the principle findings of fact was delivered on 20 June 2000, the matter then came before me on 17 July 2000 for further submissions. At that hearing the parties agreed that there were certain matters that still had to be resolved between them and calculations still had to be completed. 2 I subsequently on 19 July 2000 delivered a further judgment clarifying and giving further reasons for my decision of 20 June 2000. The parties then appeared before me on 20 July 2000 to make the further submissions arising from the hearing of 17 July 2000 and to make submissions consequent to the judgment handed down by me on 19 July 2000. 3 The defendant at the hearing of 20 July 2000 raised an issue concerning the date from at which the plaintiff's income would plateau and suggested that in my judgment of 19 July 2000 I used the expression the plaintiff uninjured "would slightly reduce his gross income by an amount to maintain his existing income" that that would mean that his income should be plateaued from 1 July 1996. 4 That was not the intention as set out in my judgment of 20 June 2000, I was of the view that he would take a partner from 1 July 1996 but that his income would continue to increase until 1998, being a continued growth of 2% and the agreed increase in Medicare fees and the plateau would then commence from 30 June 1998. 5 The plaintiff then sought clarification as to paragraph 104 of the judgment of 20 June 2000. 6 Paragraph 103 in fact sets out the findings of the Court. The formal dependency in terms of education and support ceased on the 23rd birthday of each child but the remaining dependency was then increased by half a percent to take into account the matters I referred to in my judgment on 17 July 2000. 7 Accordingly paragraph 104 has been included in error and is inconsistent with the earlier findings. I therefore withdraw paragraph 104. 8 Prior to the clarification of that matter the plaintiff submitted two summaries of loss. I indicated at the 20 July 2000 hearing that the Table 2 summary of those submitted was in fact the correct calculation. 9 That summary of loss was re-engrossed and tendered by agreement and I have admitted it as Exhibit W. The only variation from the submission made at the hearing of 20 July 2000 from Exhibit W, was the deletion of the loss of claim of goodwill which was formally withdrawn at the handing down of the judgment on 19 July 2000. 10 I have subsequently been advised that the parties have agreed as to the correctness of the calculations set out in the written submissions. I have also been advised by the plaintiff that the issue of a private trustee had been resolved and that it was now intended that the Public Trustee would be manager of the funds for the Cremona children.

Economic Loss Calculations 11 In accordance with the calculations set out in Exhibit W and find the future economic loss of $3,545,797.00, less vicissitudes personal to deceased at $3,013,927.00, therefore the value of the future dependency from date of judgment is $2,176,327.00. 12 It is appropriate that the sum of $2,176,327.00 be apportioned between the three dependents in the proportions which each dependency percentage I found bears to the total sum of the three dependants. This means that the plaintiff at 63%, Sarah at 3% and Alex at 5% produces an apportionment of 85% to the plaintiff, 8% to Sarah and 7% to Alex. The plaintiff $1,898,774

Sarah $ 144,087 Alex $ 133,465

Total $2,176,326 13 This after deducting vicissitudes for the plaintiff at 9.5% and at 2% for each of Sarah and Alex produces the following amounts: The plaintiff $1,718.391 Sarah $ 141,205 Alex $ 130,796 Total $1,990,392 14 I find that the amount to be awarded for past loss, excluding funeral costs and trustee management fees, should include growth at 2% plus the Medicare increase and interest. I therefore find for the apportionment of past dependency as follows: The plaintiff $1,271,795 Sarah $ 121,123 Alex $ 100,936 Total $1,493,854

15 In accordance with the calculations set out in Exhibit W, I find that the sum to be allowed for the plaintiff in her own right taking into account the vicissitudes set out in Exhibit W is the sum of $1,732,492.00.

Other Heads of Claim 16 The remaining heads of claim by the plaintiff are as follows; the amount of $4,896.00 for funeral costs, $3,667.00 for interest on funeral costs to 25 July 2000, $9,240.00 for trustee management fees and $20,840.00 for future trustee management fees making a total of $38,643.00. 17 Accordingly the total sum total payable by the defendant is set out below; Future Economic Loss $1,990,392

Past Loss $1,493,854 Loss of Superannuation $1,732,492

Other Heads of Claim $ 38,643 Total $5,255,381 18 The plaintiff has received interim payments totalling $1,000,000.00 on which interest at Court rates from date of receipt of the two payments have been calculated at $155,364.00. The plaintiff has already received a superannuation payment in the sum of $163,780.00.

Apportionment of Damages 19 Damages are calculated for past economic loss at 85% for the plaintiff 8% for Sarah and 7% for Alex. I apportion damages for past and future economic loss, past trustee management fees, future management trustee fees less the interim payment of one million and relation interest; The plaintiff $1,834,822 Sarah $ 278,695 Alex $ 245,445

Other heads of damage payable to the plaintiff Superannuation $1,568,712 less payment Funeral costs & interest $ 8,563

Approval for Sarah Cremona and Alex Cremona 20 The sums allowed for Sarah Cremona and Alex Cremona require approval under s.4(a) of the Damages (Infants and Persons of Unsound Mind) Act 1929. For the reasons that I have set out above and in the light of the attitude of the plaintiff towards the bringing up of her children and the care and consideration that she has shown for them I consider that the damages awarded to Sarah and Alex Cremona should be approved. 21 I direct that the damages awarded to Sarah and Alex Cremona be paid to the Public Trustee to be held and applied in such manner as the Trustee shall think fit for the maintenance and education or otherwise for the benefit of Sarah and Alex Cremona pursuant to s.4(b) of the Damages (Infants and Persons of Unsound Mind) Act 1929.

Costs sought 22 Consequent upon the judgment on quantum of 20 June 2000, the parties on the 17 July 2000 argued several matters as to costs, the plaintiff having sought the following orders as to costs: (a) in respect of all reserved costs orders, judgment be entered for the plaintiff (Part 52A Rules 11and 16 SCR); (b) the plaintiff be awarded party/party costs to 25 July 1995 and indemnity costs from 26 July based on the plaintiff's successful offer of compromise dated 26 July 1995 pursuant to Part 52A Rule 22(4) SCR in the sum of $3.5 million ("the Offer of Compromise"); (c) the Court direct that assessment of the plaintiff's costs be undertaken on the basis that the briefing of counsel the seniority Barry Toomey QC and Kingsford Dodd , now of Senior Counsel, was 'reasonable' within the meaning of that term in Part 52A Rule 37 SCR in view of the complexity and the size of the claim; (d) the plaintiff be awarded interest on costs paid by the plaintiff as set out in the Schedule of Paid Costs annexed to the affidavit of Rachelle Harrington sworn 12 July 2000, insofar as those costs are properly assessed in favour of the plaintiff by an assessor, from the date of payment of those costs by the plaintiff, pursuant to sections 76 and 95 Supreme Court Act. In the alternative, the sum of $153,350 allowed the plaintiff to the defendant on account of Supreme Court Act interest on the interim payments in the Damages Schedule dated 12 July 2000 be credited back to the plaintiff's damages; and (e) the defendant pay the plaintiff's costs of the coronial inquest into the death of Dr Cremona held between 19 and 22 April 1994 and 5 to 7 July 1994.

Reserved Costs 23 The plaintiff having been wholly successful in almost all issues in the proceedings and there being no opposition to this order I enter judgment for the plaintiff under Pt 52 rr 11 and 16 SCR for all costs reserved.

24 On 26 July 1995 the plaintiff communicated an offer of compromise pursuant to Pt 52A r22(4) SCR in the sum of $3.5 million. The quantum of judgment even taking into account that there is now interest accrued since the time of offer substantially exceeds the offer of compromise. 25 I accept the submission of the plaintiff that by date of the offer of compromise the defendant had sufficient material to give proper consideration to the offer. There had been a hearing on aspects of the facts of liability at an eight day coronial inquest which had been completed in 1994 where the defendant was represented. 26 A substantial part of the experts reports on quantum had been served on the defendant by 26 July 1995 and nothing has been put to suggest there was inadequate material to consider the offer. 27 Part 52A R 22(4) SCR provides that if the plaintiff obtains a judgment no less favourable to the plaintiff than the terms of the offer then unless the court otherwise orders the plaintiff is entitled to an order for the plaintiff's costs from the day on which the offer was made assessed on an indemnity basis from that date. This rule is in addition to the courts inherent power to assess costs. 28 The plaintiff also relies on Multicon Engineering P/L -v- Federal Airports Corporation 138 ALR 425 at pp 448,450 and 454. This judgment was applied by me in Garcia -v- Fowler (unreported 26 June 2000), and is applicable to the current proceedings. 29 With characteristic frankness Mr Gross QC for the defendant concedes that the normal rule as to indemnity costs should apply and consistent with legal principle was unable to raise any factor that would be inconsistent with the making of the orders sought. 30 In my view for the reasons set out above there is no basis for making other than the order proposed and I so do.

Briefing of Senior Counsel 31 The plaintiff seeks a direction from the Court that in the assessment of plaintiff's cost that Counsel of the seniority of Mr Barry Toomey QC and Mr Kingsford Dodd SC was 'reasonable' within the meaning of Pt52A R 37 SCR in view of the complexity and size of the claim. However Mr Dodd was not senior Counsel for a considerable part of the proceedings. The defendant made no submission in relation to this claim. 32 The plaintiff's claim involved, as in all Compensation to Relatives claims involving several relatives, considerable complexities. A number of factors not normally present in a Compensation to Relative claim such as the prediction of the likely career of one of the highest earning general medical practitioners in the state with the usual tax avoidance measures and family trusts and complex superannuation issues not only involving the deceased but the plaintiff herself. 33 The case involved questions such as the likely remarriage and probability of working of the plaintiff. 34 There were considerable numbers of expert reports including a number of actuarial computations involving reports and evidence. This was a matter of very considerable complexity and it seems to me proper that the counsel of the seniority of My Barry Toomey QC and Mr Kingsford Dodd SC should have been briefed and I therefore direct that the plaintiff's costs assessment be undertaken on that basis.

Interests on Disbursements 35 The evidence before the Court in the affidavit Rachelle Therese Harrington of 12 July 2000 Schedule of Costs paid shows that the plaintiff has paid out over a period from 22 June 1993 to 29th June 2000 the sum of $403,768.50. The plaintiff submits that the Court has a discretion to order interest to be paid from an earlier date where it is appropriate to do justice to a party who is entitled to receive costs. 36 The defendant makes no submission in opposition to the proposed order provided it relates to payments actually made by the plaintiff. The plaintiff relies on s. 91 of the Supreme Court Act 1970 ("the Act") which gives the Court a general power to make such order as the nature of the case requires but particularly relies on s.95(3) of the Act which provides that interest should not be paid on costs until 21 days after the ascertainment of the amount of those costs by an assessor under the Legal Profession Act 1987 "unless the Court otherwise order". 37 The plaintiff also relies on s.76 of the Act which invests in the Court a very general power to make orders as to costs which include fees, charges and disbursements. 38 Section 95 of the Act which clearly invests the Court to order costs from an earlier date where it is appropriate to do so justice to the parties entitled to receive the costs Fischer -v- David Syme Co & Ltd (1989) 18 NSWLR 606; GIO -v- Heally (1991) 22 NSWLR 380 both of which decisions outline the circumstances which justice may require the payment of interest on costs. 39 The plaintiff submits that this is an appropriate case for the exercise of the Court's discretion in respect of disbursements as the plaintiff had been deprived of the use of funds for several years despite proceeding with her case with reasonable promptness. The requirement of the payment of experts and considerable amounts of disbursements and the fact that she may have to wit some time before costs are assessed. 40 The former Chief Judge in the Common Law Division of the Supreme Court of NSW, Rogers CJ in McWilliams Wines Pty Ltd -v- Liaweena (NSW) Pty Ltd (formerly Jones Steains & Waller) (NSW) Pty Ltd 32 NSWLR 190 examined s.95 of the Act and held that the Court has a clear power under the Act to assess for itself and had power in an appropriate case for the payment of costs from the date on which the plaintiff had paid disbursements. 41 It seems to me in the circumstances of a plaintiff who brings these proceedings not only on her own behalf but also on behalf of her children where admissions on liability had been made before the Industrial Court on the Occupational Health and Safety Act 1983 from 1 March 1966 that the quite considerable amount which she has had to outlay should be the subject of interest from the date of her payment out of each of the sums making up the disbursement sum above. 42 I therefore make the order as asked that insofar as disbursements are properly assessment in favour of the plaintiff by an assessor that pursuant to the powers of the Court interest should be payable from the date of those disbursements by the plaintiff. It is not therefore necessary to examine the alternative proposed order as to costs.

Costs of the Coronial Inquest 43 In the nature of these proceedings, there being two potential defendants many of the issues relating to the question of liability which at that stage was still in issue and examined in the Coroners Inquest. 44 The plaintiff incurred costs in the qualifying and obtaining a report from a pharmacologist and a pharmacokineticist. There are, in my view, particular facts and circumstances demonstrating special and unusual features justifying exercise of the courts discretion to award costs 45 The court has exercised a power to allow representation, indeed the defendant concedes that it is proper in certain circumstances that costs be awarded. In my view the circumstances here clearly warranted representation and was properly incurred. 46 I consider it was proper in the circumstances for the plaintiff to be represented in those proceedings. It would be quite extraordinary if she were not to have been represented. In the event I consider that the plaintiff should have her costs of being represented in the coroners inquest. The evidence obtained was used in the summary judgment.

Orders 47 I make the following orders which take into account the receipt by the plaintiff of the sum of $163,780.00 on account of superannuation and noting that the plaintiff is to give credit for the sum of $1,000.000.00 paid to her in two payments and the sum of 155,364.00 being the notional interest earned by her at the rates calculated under the Supreme Court Act: 1. I award the plaintiff judgment in the sum of $5,091,601.00. 2. The judgment shall be apportioned between the plaintiff and her children, Sarah and Alex in the following proportions: (a) Plaintiff $4,576,461 (b) Sarah Cremona $278,095 (c) Alex Cremona $245,445

3. The judgments in paragraph 2(b) and (c) are approved by the Court pursuant to s.4(a) Damages (Infants and Persons of Unsound Mind) Act 1929. 4. The Court directs that the damages payable to Sarah Cremona and Alex Cremona be paid to the Public Trustee ("the Trustee") to be held and applied in such manner as the Trustee shall think fit for the maintenance and education or otherwise for the benefit of Sarah and Alex Cremona pursuant to s.4(b) Damages (Infants and Persons of Unsound Mind) Act 1929. 5. In respect of all reserved costs orders, judgment be entered for the plaintiff. 6. The plaintiff be awarded party/party costs to 25 July 1995 and indemnity costs from 26 July 1995. 7. The assessment of the plaintiff's costs be undertaken on the basis that the briefing of Barry Toomey QC and Kingsford Dodd SC was 'reasonable' within the meaning of that term in Part 52A R37 SCR. 8. The plaintiff be awarded interest on costs paid by the plaintiff as set out in the Schedule of paid Costs annexed to the Affidavit of Ms Rachelle Harrington sworn 12 July 2000, insofar as those costs are properly assessed by an assessor in favour of the plaintiff, from the date of payment of those costs by the plaintiff. 9. The defendant pay the plaintiff's costs of the Coroners Inquest into the death of Dr Cremona held between 19 and 22 April 1994 and 5 to 7 July 1994.

10. The plaintiff have liberty to arrange through my Associate for the signing of the formal orders.

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