(e) Lastly, if not otherwise obvious from (a) and (b) above, the period of uncertainty was a finite, relatively short, period that had concluded over 25 years earlier than when the claim came before the Court.
14 Further, the uncertainties do not all run in favour of decreasing the award. There was, on the evidence, a real possibility that Mr Singline could have attained a rank above Chief Petty Officer. It was a period during which there were shortages of officers in the Navy. His record prior to the incident was very good and, despite his injury, he was able to pass exams for advancement. Mr Sommer, to whom reference was made in the earlier judgment, obtained the rank of Warrant Officer. While I do not consider such an eventuality more probable than not, it is a possibility that, if I were to assess it, must be given no less than a 30% possibility. Such a possibility would have occasioned significant losses in income before 1978 and possibly afterward. I do not, however, take that possibility into account in determining the degree of certainty I have in any outcome.
15 The plaintiff has submitted, in passing, the failure of the Court to take account of the loss of earning capacity in the period after 1978. While I accept that the absence of precise evidence on future (or possible) earnings does not preclude an assessment of damage (State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536), the difficulty related to whether the injury, in the context of the employment market in Launceston, occasioned a diminished earning capacity. Whatever the basis, and whether it be right or wrong, it is not a matter that I am entitled to correct at this stage. It was a deliberate choice, not a slip.
16 I return then to the assessment of the uncertainties described in [9] to [13], above, inclusive. As already stated, I consider these uncertainties not to be of great significance: see [13] above. Nevertheless, I assess the chance of Mr Singline remaining in the Navy for the 20 years to 1978 (this being the only significant fact relevant to the damage affected by uncertainty) as being no less than two-thirds, and I fix that as the adjustment to the relevant damage of $688,816 (i.e. $410,176 plus $278,640 at [7] above). The adjusted value of the lump sum and pensions schemes (including interest) would then be $459,211 (i.e. two-thirds of $688,816). I will adjust the verdict accordingly.
Indemnity Costs
17 On 3 February 2006, the plaintiff served a Notice of Offer of Compromise on the defendant to settle litigation for $100,000 plus costs, as agreed or assessed. The offer expired on 3 March 2006.
18 The offer was (and even after this adjustment will be) lower than the amount awarded. The offer was to settle the proceedings for $100,000, and clearly took account of the difficulties in the plaintiff's action, not the least of which was that the extension of time had not been granted. Further, a quick settlement was beneficial to the plaintiff, given his health issues. The defendant did not accept the offer. Nor did it offer a different amount.
19 The prima facie position in those circumstances is that the costs are to be assessed on an indemnity basis from 4 February 2006: Uniform Civil Procedure Rules 2005 (NSW), rule 42.14(2)(b). Departure from this regime is exceptional: Hillier v Sheather (1995) 36 NSWLR 414; Morgan v Johnson [1998] NSWSC 367 (CA); (1998) 44 NSWLR 578.
20 Even if I were to disregard the rule and rely on first principles, indemnity costs would be warranted. At the time that the offer was made, the medical reports of Dr Ratcliff had been served (25 June 2004), being the reports upon which the Court relied in assessing liability. So too had the notes of the psychologist, Ruth Crewes, and employment and tax records. The Commonwealth filed and served its evidence on the extension of time in November 2005, well prior to the date of the offer.
21 The offer of compromise was less than the probable costs of the hearing on liability, quantum and the extension of time. It was two-thirds of the general damages awarded (with no account for interest). The Commonwealth must have been aware that, if the extension of time were granted, the value of the pension would be a matter seriously considered.
22 Notwithstanding that the necessity of the plaintiff to obtain an extension of time was a complicating factor, there is no good reason why an offer of this kind was not accepted and there is no good reason why the prima facie position ought not to apply. I award indemnity costs from a time when it was reasonable to have accepted the offer, which is no later than the day before its expiry, namely 3 March 2006.
23 Further, I accept that the costs of the attendance of medical experts, qualified by the plaintiff, at examinations of the plaintiff by the defendant's experts, was a reasonable cost and ought to be recovered. I do so because it was reasonable, in the context of this litigation, the condition of the plaintiff, and his residence in Launceston, to have qualified Melbourne medical practitioners in the various fields and it was appropriate for the qualified experts to attend the examinations. The attendance by these interstate medical practitioners was reasonable and the alternative of qualifying local doctors for such attendance was not, in these circumstances, a reasonable alternative.
Conclusion
24 As a consequence of the foregoing, the judgment issued on 27 August 2007 must be amended and/or varied.
25 I make the following orders: