Isho v Skupien (No 2) [2014] NSWDC 122

Isho v Skupien (No 2) [2014] NSWDC 122

The plaintiff did not establish exceptional circumstances warranting departure from UCPR 42.15 because, when the offer was made, significant risk factors were already present: the plaintiff's contemporaneous police statement that he went through a red light and thought he could make it, the attendant care claim related partly to unrelated conditions, and there was very little evidence supporting past income and real problems with past and future economic loss. The defendant was therefore entitled to indemnity costs from 9 June 2012. The defendant's recovery defence for payments to the worker's compensation insurer was limited to 35% of $8,500 because of the 65% contributory negligence...

Jurisdiction
Australia
Judgment Date
02 June 2014
Procedural Posture
Costs in District Court Proceedings / Costs Determination After Verdict and Judgment for the Plaintiff
Outcome
Costs orders made, statutory defence amounts noted or determined, and execution of judgment stayed for no more than two months.
Legal Topics
['offer of Compromise' 'calderbank Letter' 'indemnity Costs' 'departure From General Costs Rule' 'statutory Defence for Insurer Payments' 'stay of Execution of Judgment']
['civil Procedure' 'costs' 'motor Accidents Compensation' 'workers Compensation' 'contributory Negligence'] ['offer of Compromise' 'calderbank Letter' 'indemnity Costs' 'departure From General Costs Rule' 'statutory Defence for Insurer Payments' 'stay of Execution of Judgment']

Case Brief

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Procedural Posture

Costs in District Court Proceedings / Costs Determination After Verdict and Judgment for the Plaintiff

Legal Issues

  1. 1 ['Whether the defendant was entitled under UCPR 42.15 to indemnity costs from 9 June 2012 following an offer of compromise made on 8 June 2012.' 'Whether exceptional circumstances justified ordering otherwise than the costs consequence provided by UCPR 42.15.' 'Whether the defendant was entitled to a defence for payments made by its insurer pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW).' "Whether the defendant was entitled to a defence for recovery payments made to the worker's compensation insurer under s 151Z(1)(e) of the Workers Compensation Act 1987 (NSW), and whether that amount was affected by contributory negligence." 'Whether execution of the judgment should be stayed pending agreement or assessment of costs.']

Ratio Decidendi

The plaintiff did not establish exceptional circumstances warranting departure from UCPR 42.15 because, when the offer was made, significant risk factors were already present: the plaintiff's contemporaneous police statement that he went through a red light and thought he could make it, the attendant care claim related partly to unrelated conditions, and there was very little evidence supporting past income and real problems with past and future economic loss. The defendant was therefore entitled to indemnity costs from 9 June 2012. The defendant's recovery defence for payments to the worker's compensation insurer was limited to 35% of $8,500 because of the 65% contributory negligence...

Court Disposition

Costs orders made, statutory defence amounts noted or determined, and execution of judgment stayed for no more than two months.

Orders

  • ["Defendant to pay plaintiff's costs to be assessed on the ordinary basis up to and including 8 June 2012." "Plaintiff to pay defendant's costs assessed on an indemnity basis from and including 9 June 2012." 'The defendant is entitled to a defence in the amount of $2,029.25 for payments made by its insurer pursuant...