Allwood v Wilson and Anor (No.2)

[2011] QSC 185

SUPREME COURT OF QUEENSLAND

CITATION:

Allwood v Wilson & Anor (No.2) [2011] QSC 185

PARTIES:

RICKY KEITH ALLWOOD
(plaintiff)
v
MILES WILSON
(first defendant)
And
SUNCORP METWAY INSURANCE  LIMITED
ACN 075 695 966
(second defendant)

FILE NO/S:

S123 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

22 June 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

22 June 2011

JUDGE:

McMeekin J

ORDER:

1. That the second defendant pay the plaintiff’s costs of the proceeding on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – on which basis costs should be awarded – material changes of evidence

Uniform Civil Procedure Rules 1999

Allwood v Wilson & Anor[2011] QSC 180

COUNSEL:

PT Cullinane for the plaintiff

GF Crow SC for the second defendant

SOLICITORS:

Macrossan & Amiet for the plaintiff

Grant & Simpson for the second defendant

1. McMEEKIN J: On 22 June 2011 I gave judgment in favour of the plaintiff against the second defendant in the sum of $474,170.80 [1] and indicated I would hear from counsel on costs. Later that day I heard oral submissions and reserved the question of costs.

   [1]See [2011] QSC 180

1. The plaintiff seeks costs of the proceedings on the indemnity basis. The second defendant opposes that order and contends that I should restrict the order to an assessment on the standard basis.

1. The plaintiff relies on a formal offer in the amount of $440,000 made on 2 December 2010 pursuant to the Uniform Civil Procedure Rules 1999 (UCPR).  Rule 360 provides:

   “360 Costs if offer to settle by plaintiff

   (1) If—

   (a) the plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle; and

   (b) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

   the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

   (2) If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

2. As well the plaintiff points out that his mandatory offer made prior to commencement of proceedings was also in the sum of $440,000.

1. The defendant submits that another order is appropriate as the rule requires. It submits that the evidence changed in a material way in respect of both the medical evidence and the evidence going to financial loss. It points to the evidence of Ms Coles, Mr Muller and Dr Pertnikov as involving material changes.

1. The plaintiff adduced evidence from Dr Pertinikov concerning the amelioration of his asthmatic condition.  Opinions on that subject were set out in a report dated 7 February 2011, obtained well after the making of the formal offer. However Dr Pertinkov’s opinions were hardly new ones.  Full disclosure of his reports – to general practitioners rather than medico-legal reports – had been made in a timely way. In a report dated 8 January 2008[2] Dr Pertnikov had expressed the opinion that testing showed Mr Allwood’s spirometry at 97%. The doctor described this result in his evidence as a normal result – a fact I recorded in my reasons for judgment.[3] In his next report of 3 December 2008 the doctor said that Mr Allwood’s “lung capacity is normal” and that his “asthma issues seem to have settled”. He advised that “his lung function and oxygen levels are normal on no medications”.[4] Then on 20 January 2010 the doctor advised Dr Shaw that Mr Allwood had industrial induced asthma “most likely from chemical exposure near his home in Mackay” but that “since moving from that address his asthma has not been a problem”.[5]

   [2]Ex 1.24

   [3][2011] QSC 180 at [47]

   [4]Ex 1.25

   [5]Ex 1.26

1. In the face of these reports I cannot accept that it came as any surprise to the defendant that Dr Pertinikov considered that the asthmatic condition had no current impact on Mr Allwood’s earning capacity as a plant operator – unless again exposed to industrial chemicals that had caused the condition in the first place.

1. Mr Muller gave evidence that there had been significant demand for plant operators in the mining industry at various times since the accident.   Mr Naylor, who appeared on the costs argument for the plaintiff, informed me that a proof of evidence had been supplied to the defendant months before the offer was made. Thus the information was not new. In any case I would have thought that the state of demand for plant operators in the Central Queensland area was something that the defendant was quite capable of investigating for itself, and ought to have realised needed investigation in a case involving a badly injured plant operator working out of Mackay.

1. Ms Coles supplied a further proof of evidence only on 2 June 2011. She expressed her concerns about the risks inherent in plant operating for a man with a hip replacement. I recorded those concerns in my reasons.[6] However, I did not accept that those concerns meant that I should assume that Mr Allwood would not return to plant operating. The risks that she pointed out were, with respect, obvious ones.  In any case those opinions were obtained in the context of an opinion from Dr Shaw, an orthopaedic surgeon, expressed in a report of 30 March 2009 concerning the difficulties that Mr Allwood faced in returning to plant operating or any employment in which he had experience or training.[7] In truth the evidence that I acted on was better for the defendant than these opinions.

   [6]At [68]

   [7]Ex 1.7 at p 6

1. I reject the defendant’s submissions.

1. I order that the second defendant pay the plaintiff’s costs of the proceedings on the indemnity basis.