Gray v Wagga Wagga City Council

The Offer of 3 April 2020

1. The proceedings in this matter were commenced on 6 March 2020 and the first offer of compromise was served 28 days later, before the plaintiff had the opportunity to embark upon the investigatory processes available to her as a consequence of the commencement of litigation.
2. The letter that accompanied the offer made no reference to the elements of the defence that provided the defendant with sufficient confidence in its position to warrant an offer that effectively required the plaintiff to abandon her claim.
3. An offer made at this early stage of the proceedings indicated an intention to deter rather than compromise the proceedings. I concluded that in those circumstances a departure from UCPR 42.15A was warranted.

The Offer of 11 February 2021

1. Circumstances were different when the second offer was made. The proceedings had been listed for hearing, presumably, on the basis that the parties had finalised their evidence and were ready to proceed. Further, the letter that accompanied the offer set out in moderate detail the defendant's response to the claim in terms that were substantially supported by my findings.
2. In resisting an order for costs of any kind, the plaintiff raised issues relating to signage, aspects of the defence that were decided against the defendant and the late production of documents.
3. I was uncertain why the plaintiff was concerned with questions of signage in the light of my findings that a warning sign, even if provided, would not have altered the outcome of the proceedings.
4. I did not accept that I should deny the defendant its right to costs because I found against it on the issues of contributory negligence and obvious risk. They were defences that were legitimately available to the defendant.
5. The major aspect of the plaintiff's submissions related to the production by the defendant of further documents on 15 March 2021, the first day of the hearing, and after the period for acceptance of the second offer expired.
6. The documents of particular concern to the plaintiff were a report that followed an inspection of the automatic door on 13 June 2017 (Ex A.90A) and a quotation for repair dated 19 July 2017 (ExA.90B). Until these documents were produced the plaintiff was under the apprehension that, in breach of the relevant Australian standard, the defendant failed to conduct regular maintenance inspections between February 2017 and September 2017 when the incident occurred.
7. The plaintiff's submissions referred on multiple occasions to the suggestion that the documents were 'withheld' by the defendant. Although it was regrettable that they were not provided at an earlier date, the circumstances leading to their late disclosure were not made apparent during the trial. I was not, therefore, in a position to determine if the non-production of the documents was deliberate or the result of oversight.
8. The plaintiff was incorrect in claiming that I directed criticism at the defendant's witnesses because of my concern that the defendant withheld documents. My criticism addressed the absence of explanation for the failure to attend to repairs to the automatic doors.
9. The plaintiff was also incorrect in contending that these documents ultimately led to the outcome that favoured the defendant. These documents reported the same defect in the doors that was first identified in June 2016 and consistently reported to the defendant in the regular inspections that followed. It was a defect of which the plaintiff ought to have been aware from documents produced in February 2018.
10. The plaintiff correctly recognised that her claim failed because, although a defect was identified, it was not established that the defect caused her injury. Regardless of the production of the documents relating to the June 2017 inspection, it ought to have been apparent at the time of service of the second offer that evidence was necessary to prove a causal connection between the defect and the injury.
11. I did not accept that, in the case of the second offer, there were exceptional circumstances that warranted departure from UCPR 42.15A.

ORDER 1. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis up to and including 11 February 2021 and on an indemnity basis thereafter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2021