Stevanovic v McIndoe

The plaintiff's submissions 9Written submissions were made on behalf of the plaintiff, in which the application was opposed on two bases: firstly, the defendant's offer was not a proper offer of compromise within the meaning of r 20.26; and secondly, in the alternative, there are exceptional circumstances for not making the order sought. 10In support of the first submission, the plaintiff pointed to the wording of the offer of compromise and contended that it was not an offer made "exclusive of costs" as required by r 20.26. The offer, which was expressed to be "plus costs on a full and final basis", did not detail how costs would be determined and on what basis costs might be further dealt with. It did not advert in the usual sense to the practice that costs could be later agreed or assessed. The offer made was inclusive of an additional amount for costs but did not specify either that amount or how that amount would be determined or calculated. 11In my view, the offer made was self - evidently exclusive of costs. The rules do not require that the offer detail how the costs were to be determined and on what basis. Those were matters that the plaintiff, properly advised by competent lawyers, would be aware of, having regard to the relevant principles and the relevant rules, such as r 42.2. 12In my view the offer of compromise complied with r 20.26 and was a valid offer. 13In support of the alternative submission, the plaintiff made three broad points, which I summarise as follows. The first point was that the offer of $340,000 did not address the fact that the defendant had already made payments totalling $84,397 to the workers' compensation insurer, and then made submissions at trial in relation to past economic loss which were inconsistent with the position it "sought to impose" by making the offer of compromise. Secondly, the defendant did not file a Defence until after it had served the offer of compromise. Whilst the plaintiff was on notice of an intention to plead contributory negligence, the particulars and the extent of the allegation was not specified until the defence was filed. Thirdly, the defendant did not complete service of its medical evidence in accordance with court orders. Indeed it only served a number of reports the day prior to the offer of compromise, and did not serve the reports of Dr Barrett until the day of the offer of compromise. The defendant thereby substantially altered its case to the detriment of the plaintiff. Furthermore, the late service of the defendant's reports prejudiced the plaintiff because it was unable to obtain any material in reply, nor was it anticipated that the defendant would make the submissions it did in respect of past economic loss. It was suggested that the defendant failed to serve the reports in question until the last possible opportunity prior to trial, and that the defendant should not be allowed to profit from withholding service and putting the plaintiff to the expense of having to prove its entitlement to non - economic loss by going to MAS. For these reasons, it was not unreasonable for the plaintiff to have rejected the offer of compromise. 14The plaintiff also submitted that the plaintiff only fell short of the offer of compromise by less than $2,000. A finding of contributory negligence of 1% less would have produced a different outcome.

The defendant's submissions 15The defendant also provided written submissions in response to the various matters raided on behalf of the plaintiff. 16In respect of the complaint that the defendant had already paid $84,397 to the workers' compensation insurer, the defendant pointed out that the plaintiff was fully aware of this fact at the time of the offer. In any event, the payment did not render the offer "ambiguous" in that the workers compensation payments were required to be repaid in any event from any damages recovered by the plaintiff. The plaintiff was not misled, nor did her solicitors seek any clarification, assuming it was required. 17The defendant's submissions next address the plaintiff's argument that the payment to the workers' compensation insurer was inconsistent with the attitude adopted by the defendant at trial that the plaintiff had residual earning capacity since at least the time of her arthroscopic surgery in June 2008. It was submitted that the plaintiff's argument is misconceived. The payment, which was mandated by the legislation, did not amount to any admission, nor could it bind the defendant to any position concerning the plaintiff's earning capacity. Nor did it involve an alteration in the defendant's case. Turning to the plaintiff's second broad contention, that the Defence was only filed after the offer of compromise, the defendant submitted that the plaintiff was on notice of an intention to plead contributory negligence. No request for particulars of that defence was made, and the plaintiff cannot have been misled as to the allegation. It was self - evident that the allegation would be related to the plaintiff having positioned herself immediately behind and close to the van in circumstances where she knew or should have known that the van might be moved. 18In respect of the plaintiff's third broad complaint, concerning the medical and vocational evidence, the defendant submitted that the matters raised do not amount to special circumstances justifying a departure from the presumption created by r 42.15. The plaintiff did not object to late service, and did not object to the admission of the reports at trial, nor did it complain then that further time was needed to seek evidence in reply. The relevant experts were made available for cross - examination, but were not required at trial. 19The defendant then addressed the complaint that the defendant "forced the plaintiff to MAS without at that stage serving the reports of Dr Barrett" when those reports clearly put the plaintiff over the 10% threshold for an award of damages for non - economic loss. The defendant submitted that this was a circumstance irrelevant to the non - acceptance of the offer of compromise. The plaintiff was in fact entitled at trial to claim damages for non - economic loss, because the 10% threshold had been exceeded. The fact that the evidence at trial was at odds with the findings of the Medical Assessment Service was not unusual, nor was the plaintiff misled by the circumstance. 20Finally, the defendant submitted that the fact that the ultimate outcome was $2,000 below the offer of compromise does not amount to a special circumstance. The rule is clear in this regard.

The relevant legal principles 21The onus is on the offeree to establish a basis for displacing the presumption created by r 42.15: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [32] - [35]. 22The Court will only depart from the usual rule in exceptional circumstances: Morgan v Johnson (1998) 44 NSWLR 578 at 581 - 2; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 at [15]. 23The decided cases disclose three broad categories circumstances in which the presumption in favour of an award of indemnity costs might be displaced. The first basis is that the period for acceptance was unreasonable. The second is that the offer did not involve any compromise . The third is that the rejection of the offer was not unreasonable. 24The determination as to whether t he rejection of an offer was unreasonable is also an evaluative judgment requiring a consideration of the facts and circumstance specific to the case: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]; King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 at [11]. 25Circumstances relevant to the reasonableness of rejection have been held to include the situation where the full parameters of the dispute were still uncertain at the time of the offer: Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42]; or where the offeror's case changes after the offer: South Eastern Sydney Area Health Service v King [2006] NSWCA 2006 NSWCA 2 at [85]; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; East West Airlines Limited v Turner (No 2) [2010] NSWCA 159 at [16]. Findings and conclusions 26In the present case no period for acceptance of the offer of compromise was stipulated. Nor was it suggested that the defendant's offer of compromise did not represent or form part of a genuine attempt to reach a negotiated settlement: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]. The contest here was whether the plaintiff demonstrated that she was not acting unreasonably in failing to accept the offer of compromise. 27In my view, the plaintiff established that the full parameters of the dispute were still uncertain at the time of the offer of compromise. The late notice of the particulars of contributory negligence and the late service of experts' reports that had been in the defendant's possession for a considerable period meant that the plaintiff was not made aware of the case she was required to meet until the last minute. Such conduct is inconsistent with s 56 of the Civil Procedure Act 2005 and the defendant should not have the benefit of the court's discretion when it has not conducted itself in an appropriate manner consistent with the overriding purpose required by that Act: Sedrak v Starr [2010] NSWCA 228 at [19]. 28More importantly, it is clear to me that the case to be made against the plaintiff lacked full particularity at the time of the offer of compromise. It was not for the plaintiff to assume the case to be made against her. It was for the defendant to put her on notice. 29I find, therefore, that it was not unreasonable for the plaintiff to have not accepted the defendant's offer of compromise. In my view, there were special circumstances justifying displacement of the presumption in favour of the defendant created by r 42.15 30For these reasons I am persuaded that the defendant should not be awarded indemnity costs.

Costs of the Costs Application 31It remains for me to deal with the costs of the costs application itself. 32The plaintiff has succeeded and costs should follow the event.

Disposition 33I therefore refuse the defendant's application for indemnity costs and confirm the costs order made on 19 November 2010. 34I order the defendant to pay the plaintiff's costs of this application, on the ordinary basis.

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: 23 June 2011