Following on from the writer’s commentary in the matter of Which truck? involving the Claimant Mansi, Her Honour Justice Ann Lyons has provided a costs determination in Mansi v. O’Connor and Ors1.
Her Honour had before her had previously determined the damages that the Plaintiff, Mr Mansi, would recover was $93,757.51.
Her Honour was told that the Compulsory Conference held on 10 December 2010 had a Mandatory Final Offer from the Claimant/Plaintiff at $240,000.00 plus costs. The offers from the ten Defendants was Nil.
Then one week before the trial the Defendants offered a Calderbank v Calderbank offer of $400,000.00 plus costs. That was rejected but was open for a period of seven days.
Her Honour concluded that it was appropriate that the Plaintiff join all the Defendants to the action to determine as to which Defendant was responsible for the accident. She found it was reasonable because of the “state of uncertainty” as to who was responsible. As a consequence that meant the Second Defendant that she found liable would have to bear the cost of the other Defendants.
She also had to weigh up issues surrounding “Was it reasonable for the Plaintiff to reject a very fair offer a week before trial on damages as to the cost consequences?”
She determined that the offer was appropriate and realistic given the Plaintiff’s injuries, lack of contemporaneous evidence as to the alleged back injury from the accident, his pre existing symptoms and the true extent of his future economic loss. She determined the offer was in very clear terms and in fact a “genuine attempt at compromise”.
The Plaintiff had not shown the rejection of the offer was not unreasonable.
She also determined that it was reasonable for her to consider the Mandatory Final Offer of the Plaintiff as to cost consequences.
That is, it enlivens the discretion of the Court as to Cost Orders. She noted the offer was for $250,000.00 on 10 December 2010. That was after the jurisdiction of the Magistrates Court and the District Court changed on 1 November 2010 to be $150,000.00 and $750,000.00 respectively.
To that end, Her Honour made the following Orders:-
- The Second Defendant would pay the Plaintiff’s costs of the proceedings up to 31 October 2010 on the District Court Scale and thereafter, until 22 May 2012 on the Magistrates Court Scale;
- The Second Defendant would pay the other Defendants’ costs on a standard basis up to 22 May 2012;
- The Plaintiff would pay the Defendant’s costs of the proceeding after 23 May 2012 on an indemnity basis;
- That the costs to be paid by the Plaintiff be off set against the Judgment prior to any payment to the Plaintiff. Effectively, protecting the Defendants for its monies that it would recover on costs from the Judgment.
Clearly, the Plaintiff chanced his arm on damages and faced the consequences that a result was not given in his favour given the evidence that developed at the hearing in the matter. The cost consequences are a significant blow given the offer that was made prior to trial. Hindsight clearly did not favour the Plaintiff.