Skimmings v SAVINS and SAVINS (No 2)

[2007] NSWDC 176

CITATION:	SKIMMINGS v SAVINS & SAVINS (No 2) [2007] NSWDC 176
HEARING DATE(S):	30 August 2007
EX TEMPORE JUDGMENT DATE:	30 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $397,771.19; 2. The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 29.5.07 and on an indemnity basis from that date; 3. The orders will be stayed upon condition that the defendants file and serve within 28 days a Notice of appeal; 4. The exhibits will be retained until further order.
CATCHWORDS:	Final orders - Offer of compromise - Indemnity costs
LEGISLATION CITED:	UCPR 42-14
CASES CITED:	Golden Eagle International Trading Pty Limited v Zhang (2007) 234 ALR 131
PARTIES:	Murray Leigh SKIMMINGS Kenneth Reginald SAVINS Joan Patricia SAVINS
FILE NUMBER(S):	Coffs Harbour Plaint 48 of 2006
COUNSEL:	R Harrington - Plaintiff D Priestley - Defendants
SOLICITORS:	Lee James Egan - Plaintiff Thompson Cooper Lawyers Pty Ltd - Defendants

JUDGMENT

1 Reasons for judgment were delivered on 17 August 2007 at Coffs Harbour and the matter stood over to today to enter final orders.

2 The parties have ventilated some issues before me. By way of clarification, I wish to note that the allowance for future domestic assistance has been made on a commercial basis having regard to the evidence of the plaintiff that he currently pays for some assistance and that in future he will pay for his assistance needs.

3 I note also that life expectancy for the purpose of calculating the final figures for the award have been based on prospective life tables in accordance with the principles established in the High Court’s decision of Golden Eagle International Trading Pty Limited v Zhang (2007) 234 ALR 131.

4 The plaintiff has asked for indemnity costs from 29 May 2007 on the basis of an offer of compromise served on the defendants on that date. The defendants resist the order, suggesting that there are circumstances in which I might otherwise order, as provided in UCPR 42.14.

5 In support of this argument, I have been provided with an affidavit of the defendants’ solicitor Mr Howard which indicates that after the service of the offer of compromise the plaintiff served a number of medical reports. These reports, according to a letter attached to Mr Howard’s affidavit, were obtained from the file of Dr Cannon produced under subpoena issued at the request of the defendants. The parties are unable to tell me when that file was produced by Dr Cannon and counsel for the defendants is not able to point me to any other circumstances which might indicate that I should otherwise order.

6 The transcript of the reasons is not currently before me. My notes indicate that I assessed the plaintiff’s damages on the basis of the evidence of Dr Searle and Dr Smith and not on the basis of the material contained in any of the reports served after the date of service of the offer of compromise. In those circumstances, in my view there is no basis upon which I should deny the plaintiff an order for indemnity costs.

7 The orders which I make are as follows.

1.There will be verdict and judgment for the plaintiff in the sum of $397,771.19, comprising non-economic loss $171,000, past out-of-pocket expenses as agreed $24,832.04, future out-of-pocket expenses nil, past and future economic loss nil, past domestic care $20,987.33, future domestic care $180,951.82. Future care has been calculated on a pro rata basis as set out in paragraph 2.1 of the document that is attached to Exhibit Z.

2.The defendants is to pay the plaintiff’s costs on an ordinary basis up to and including 29 May 2007, and on an indemnity basis from that date.

3.The orders made will be stayed upon condition that the defendants file and serve within twenty-eight days a notice of appeal.

4.The exhibits will be retained until further order.

8 I am just going to mark also the schedule of damages that you handed up, Mr Harrington, as Exhibit Z.

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