Cooper v Nominal Defendant (No 2) [2017] NSWDC 27

District Court New South Wales

Medium Neutral Citation: Cooper v Nominal Defendant (No 2) [2017] NSWDC 27 Hearing dates: 20 January 2017 Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Set aside the earlier verdict and judgment and now give verdict and judgment for the plaintiff against the defendant for $1,122,293.00 Catchwords: CIVIL – Interest on amount awarded for past economic loss and past superannuation Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 Category: Consequential orders (other than Costs) Parties: Buck Anthony Cooper (Plaintiff) The Nominal Defendant (Defendant) Representation: Counsel: Mr A J Stone SC with Ms S Warren (Plaintiff) Mr R Stitt QC with Mr B Wilson (Defendant)

Solicitors: Slater & Gordon (Plaintiff) Holman Webb (Defendant) File Number(s): 2014/287850 Publication restriction: No

Judgment 1. HIS HONOUR: Earlier this morning, for reasons which I published at that time, I gave a verdict and judgment for the plaintiff for $1,114,493: [2017] NSWDC 3. I then heard submissions on the question of costs and ordered the defendant to pay the plaintiff's costs on the ordinary basis until 14 April 2016 and thereafter on an indemnity basis. 2. The plaintiff now claims, pursuant to s 137 of the Motor Accidents Compensation Act 1999 an amount of interest on the sums I have awarded for past economic loss and past superannuation loss. The defendant, on 18 May 2016, made an offer of settlement in the sum of $600,000 plus costs, which was open for acceptance until Tuesday 24 May 2016, pursuant to the principles in Calderbank v Calderbank. It is to be recalled that the hearing of this matter commenced before me at Nowra on 30 May 2016. Accordingly the offer of compromise was made some 12 days prior to the commencement of the hearing and was open for a further six days. It was not accepted by the plaintiff. 3. The plaintiff relies on s 137(4)(a)(iv). Under that provision interest is not payable unless the defendant made an offer of settlement and the amount of all the damages of any kind awarded by the Court was more than 20% higher than the highest amount offered by the defendant, and the highest amount was, "unreasonable," having regard to the information available to the defendant when the offer was made. 4. The amount that I awarded was almost double the amount that the defendant offered on the 18 May 2016. The time between that offer and the commencement of the hearing was about 12 days. The hearing was completed on 8 June 2016 in Sydney but I was not able to give judgment until today. Suffice it to say that but for the delay between 8 June 2016 and today, the amount of damages would have been perhaps smaller if judgment were given on 8 June 2016, but not very much smaller, the only difference being that the amount for past economic loss would have been less although the amount for future economic loss would have been more: however, because of the 15% discount on future damages for the vicissitudes of life that amount would have been slightly smaller. 5. The defendant submits that the highest amount which it offered was reasonable having regard to the information available to the defendant. However, the information then available to the defendant appears to me, from the evidence that I have heard and read, was the same, with the exception, perhaps, of the evidence of Ms Cassie Bates who was called by the defendant and whose evidence greatly assisted the Court but did not particularly assist the plaintiff's case. In other words the evidence at trial, if anything, was more favourable to the defendant than the evidence that may have been available to the defendant prior to the commencement of the trial. In the circumstances where the defendant's offer was slightly over half of the amount ordered by the Court I cannot find that the amount offered by the defendant was, "reasonable." 6. Therefore the plaintiff has established what he must establish under s 137(4)(a)(iv). The amount now claimed for interest is $7,800 and there is no objection by Mr Stitt QC to the way that that sum has been calculated and the methodology used in calculating it as announced by Mr Stone SC to the Court. 7. For these reasons I set aside the verdict and judgment earlier announced and now give verdict and judgment for the plaintiff against the defendant for $1,122 293. (FURTHER SUBMISSIONS) 1. I stay execution of the judgment debt until Friday 3 February 2017. For mention before me on that day. I direct defendant's solicitor to notify plaintiff's solicitor by 4pm on 1 February 2017 of any orders to be sought by defendant on 3 February 2017. I direct that exhibits D and LL be returned to the plaintiff's solicitor and to be signed for by him or her and to be retained and returned to the Court if there be an appeal. Otherwise the file and the rest of the exhibits are to remain in the Sydney Registry until further order.

********** 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: 24 February 2017