In a decision delivered by the Court of Appeal on 18 September 2020 an appeal by the plaintiff based upon a miscarriage of justice caused by evidence being improperly admitted to the jury and against the jury’s assessment of damages was dismissed.
Similarly, the Court of Appeal dismissed the defendant’s appeal that the presiding judge should not have ordered that each party bear its own costs. Rather the defendant argued that the proper application of the Accident Compensation Act required an order that the plaintiff pay the defendant’s costs.
The plaintiff’s appeal provided yet another example of how difficult it is to successfully appeal against what was essentially an exercise of discretion by the judge and the jury’s verdict.
In arriving at its decision the Court of Appeal quoted a passage from the Hight Court’s judgement in Calin v. The Greater Union Organisation Pty Ltd which succinctly illustrates the difficulty in appealing against a jury’s decision:
“The correct principle is that a Court of Appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it could be said that the verdict is such as reasonable juries could not reach.”
Possibly of more interest is the argument that the parties had as to costs.
In this particular case the defendant made a statutory offer of nil on the basis that the plaintiff was entitled to retain those statutory benefits she had already received. The statutory counter offer was $135,000. At trial the jury found for the plaintiff and assessed her damages at $30,000 for pain and suffering and $30,000 for loss of earnings. As these sums were less than the statutory threshold set out in section 134AB(22) of the Act the trial judge entered judgement for the defendant. She then ordered that pursuant to section 134AB(27)(b)(ii) that each party bear their own costs.
The defendant sought leave to appeal against the judge’s order for costs arguing that the costs of the proceedings were governed by section 134AB(28)(a) which meant that the judge should have ordered that the plaintiff pay the defendant’s costs of the proceeding.
The relevant parts section 134AB dealing with costs are as follows:
“Section 134AB(27)
Subject to the rules of court –
(a) In proceedings relating to an application for leave of the court under sub-section (16), costs are to be awarded against a party against whom a decision is made; and
(b) unless sub-section (28) applies in proceedings for the recovery of damages in accordance with this section –
(i) if no liability to pay damages is established, costs to be awarded against the claimant; and
(ii) if damages were assessed but cannot be awarded under this section, each party bears its own costs; and
(iii) if damages are awarded, costs would be awarded against the authority or self-insurer.
Section 134AB(28)
In the proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under sub-section (12) –
(a) if no liability to pay damages is established, the worker must pay the party and party costs of the employer, authority or self-insurer and the worker’s own costs;
(b) if judgement is obtained or a settlement or compromise is made in an amount not less than 90% of the worker’s statutory counter offer under sub-section (12) and more than the statutory offer of the authority or self-insurer, the authority or self-insurer must pay the worker’s party and party costs and its own costs;
(c) if judgement is obtained or a settlement of compromise is made in an amount not more than the statutory offer of the authority or self-insurer under section (12), the worker must pay the party and party costs of the authority or self-insurer and the worker’s own costs;
(d) if judgement is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the authority or self-insurer under sub-section (12) but less than 90% of the worker’s statutory counter offer under that sub-section, each party bears its own costs –
and the court must not otherwise make an order as to costs.”
The defendant argued that the question of costs was covered by section 134AB(28)(a) and that this meant the worker must pay the defendant’s costs. At trial the plaintiff argued that section 134AB(27)(b)(ii) applied so that each party had to bear its own costs. Judge Bourke agreed with the plaintiff and when doing so upheld a submission that an offer of zero is not a statutory offer to which sub-section (28) applied.
The Court of Appeal specifically concluded that there was nothing in the Act that prohibited a statutory offer of nothing, or zero. In addition on appeal even the plaintiff accepted that a statutory offer of zero was a valid statutory offer. However, it argued that sub-section (28) had no application to the present case because the plaintiff established a liability to pay damages even if it was for an amount below the statutory threshold. As such no paragraph of sub-section (28) was applicable which meant that the question of costs was dealt with or had to be dealt with under sub-section (27)(b)(ii).
The Court of Appeal stated that by its own terms section 134AB(27) applied unless sub-section (28) applied. The court then went on to consider whether any of the provisions of sub-section (28) might apply to this particular case.
They concluded that the words “no liability to pay damages is established” should be given a uniform interpretation in both sub-sections (27)(b)(i) and (28)(a). That being the case those words were a reference to the plaintiff being unable to show that the defendant was liable and this contrasted with the situation where a plaintiff was unable to satisfy the thresholds set out in the Act.
Accordingly, section (28)(a) didn’t apply to the present circumstances. Further, the defendant didn’t even try to rely upon sub-section (28)(c) because it was obvious that there had been no judgement obtained by the plaintiff “in an amount”.
The result is that costs in this case were determined by the operation of section 134AB(27)(b)(ii) which meant that each party was required to bear their own costs.
In reaching this conclusion the court acknowledged that this interpretation of the Act could on occasions lead to some anomalous results. For example the court accepted that there could be plaintiffs who obtain very substantial assessments of damages that are in excess of the statutory offer but less than 90% of the statutory counter offer.
In such cases under sub-section (28)(c) they would be required to pay the costs of the proceedings. In contrast a plaintiff who may have received the same statutory offer and made a similar counter offer may have damages assessed in amounts less than the thresholds referred in sub-section (22) but would only have to bear their own costs. The court accepted this to be the case and simply said it was one of the quirks of the legislation.
