Borg v Ramsay Health Care (No 2) [2014] NSWSC 133

Borg v Ramsay Health Care (No 2) [2014] NSWSC 133

The offer of compromise was substantial and involved a significant compromise by the defendants. By the time it was made, Dr Dalton's report made it reasonably apparent that the defendants' damages case was that the fall did not cause substantial injury or aggravate chronic pre-existing conditions. Although the plaintiff did not know he had been filmed, he knew his own capacities and activities. It was therefore unreasonable not to accept the offer, and the costs consequences in UCPR r 42.15 applied.

Jurisdiction
Australia
Judgment Date
27 February 2014
Procedural Posture
Costs Application / After Judgment, on Defendants' Application for a Different Costs Order
Outcome
Defendants' application for a different costs order allowed by applying UCPR r 42.15 to the offer of compromise.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'supreme Court Costs Discretion' 'judgment Below Monetary Threshold']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'calderbank Offer' 'supreme Court Costs Discretion' 'judgment Below Monetary Threshold']

Case Brief

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Procedural Posture

Costs Application / After Judgment, on Defendants' Application for a Different Costs Order

Legal Issues

  1. 1 ["Whether the plaintiff's non-acceptance of the defendants' offer of compromise should attract the costs consequences in UCPR r 42.15." 'Whether the plaintiff had enough information when the offer of compromise was made to make it unreasonable to refuse the offer.' 'Whether the timing and circumstances of the Calderbank offer should affect costs.' 'Whether no costs order should be made under UCPR r 42.34 because the plaintiff obtained judgment for less than $500,000.']

Ratio Decidendi

The offer of compromise was substantial and involved a significant compromise by the defendants. By the time it was made, Dr Dalton's report made it reasonably apparent that the defendants' damages case was that the fall did not cause substantial injury or aggravate chronic pre-existing conditions. Although the plaintiff did not know he had been filmed, he knew his own capacities and activities. It was therefore unreasonable not to accept the offer, and the costs consequences in UCPR r 42.15 applied.

Court Disposition

Defendants' application for a different costs order allowed by applying UCPR r 42.15 to the offer of compromise.

Orders

  • ["Order the defendants to pay the plaintiff's costs of the proceedings on an ordinary basis to 6 September 2012." "Order the plaintiff to pay the defendants' costs of the proceedings on an indemnity basis from 7 September 2012."]