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Injured plaintiff not ordered to pay costs of successful defendants

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The facts

On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.

The truck did not stop. Its registration number was not taken and, therefore, there was doubt as to the identity of the truck.

The Plaintiff believed that the truck from which the object fell was one operated by JJ Richards & Sons Ltd (JJ Richards), so he sued the three drivers of JJ Richards and QBE, the compulsory third party insurer of JJ Richards’ vehicles. The Plaintiff also sued the Nominal Defendant because if the truck was not found to belong to JJ Richards then it was an unidentified vehicle.

QBE denied liability for the accident on the ground that the truck was not one that belonged to JJ Richards, and could therefore not be identified. The Nominal Defendant denied liability on the ground that the truck in question was owned and operated by JJ Richards.

Relevant law

Section 31 of the Motor Accident Insurance Act 1994 (Qld) provides that:

(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles—

(d) if the motor vehicle, or insurer under its CTP insurance policy, can not be identified—the Nominal Defendant is the insurer.

(2) In any legal proceedings, it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.

Section 33(1) of the Motor Accident Insurance Act 1994 (Qld) provides that:

The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.

The general rule in civil litigation is that the unsuccessful party must pay the costs of the successful party or parties, normally on the relevant court scale. This rule is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) which provides that:

681 General rule about costs

(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise.

In Sanderson v Blyth Theatre Company [1903] 2 KB 533 it was held that the court has a discretion to order the unsuccessful defendant to pay the costs of the claimant in pursuing the successful defendant and the costs of the successful defendant or defendants. Romer LJ said:

“the Court has full power over the costs of all parties of such an action; and, in my opinion, it has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and to add those costs to his own to be paid by the defendant against whom the action has succeeded, and whose conduct has necessitated the action. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant. Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant.”

In Bullock v London General Omnibus Company [1907] 1 KB 264, the plaintiff had been unable before litigation to assess which of the defendants might be liable. An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant.

In Dominello v Dominello [2009] NSWCA 257, the plaintiff was injured when a vehicle in which she was travelling, and which was driven by her husband, crashed. The vehicle slipped on oil that had been dropped onto the roadway. The plaintiff sued her husband’s insurer alleging negligence against him and also sued the Nominal Defendant, being liable as the insurer of the unidentified vehicle which dropped the oil. The result after the appeal was that the plaintiff was unsuccessful against her husband but successful against the Nominal Defendant. On the question of a Bullock or Sanderson order, the Court of Appeal refused to order the Nominal Defendant to pay the costs of the successful defendant, namely the insurer of the plaintiff’s husband.

Supreme Court decision

After hearing the evidence at trial, Davis J of the Supreme Court found that the truck was not one that belonged to JJ Richards, and it could therefore not be identified. The result was that the claim against the three drivers and QBE was dismissed, but the claim was entirely successful against the Nominal Defendant, who was ordered to pay the sum of $723,761.64 in damages to the Plaintiff inclusive of interest.

After the trial, the issue of parties’ costs of the claim had to be determined. In respect of the costs of the three drivers and QBE, the Plaintiff submitted that the Court should “order otherwise” than that costs follow the event under rule 681 of the Uniform Civil Procedure Rules, and that a Bullock or Sanderson order ought to be made.

Davis J accepted this submission:

“Dominello is a very different case to the present. Here, there is only one cause of action, being negligence against the driver of the truck from which the object fell. The case was one of alternative liability of either the QBE defendants (if the truck was a JJ Richards truck) or the Nominal Defendant (if the truck could not be identified as a JJ Richards truck)…

It was obviously appropriate for Mr Garside to join all the defendants. The Nominal Defendant took a positive stance that the vehicle was one operated by JJ Richards. It could have conceded that the vehicle was unidentified.

In pleading positively as against Mr Garside that the vehicle was one driven by one of Mr Rohan, Mr Miles or Mr Robertson and in advancing that case and the wider case that the truck may have been some other JJ Richards truck, the Nominal Defendant clearly engaged with the QBE defendants on the critical issue between them. Unlike Dominello, this was a case of alternative liability. The Nominal Defendant sought to avoid liability by attempting to identify the truck as one insured by QBE. That is the conduct which satisfies the second requirement for a Bullock or Sanderson order.”

It was therefore ordered that:

  1. 1. The Nominal Defendant pay the plaintiff’s costs of the proceedings to be assessed on an indemnity basis; and
  2. 2. The Nominal Defendant pay the three drivers and QBE’s costs of the proceedings.
  3.  
Conclusion

 

This case shows that in cases where a plaintiff sues multiple defendants and is not successful against all of them, the court will consider the individual facts of the case in determining whether the successful defendants’ costs should be paid by the plaintiff or the unsuccessful defendant(s). The reasonableness of the plaintiff’s decision to sue the successful defendant(s) in all the circumstances will be the central issue in the exercise of the costs discretion in such cases. In this case, because the plaintiff’s claim against QBE and the Nominal Defendant was a case of alternative liability, and because the Nominal Defendant defended the claim on the basis that one of the drivers of JJ Richards insured by QBE was liable, the plaintiff’s decision to sue the three drivers and QBE was found to be plainly reasonable, even though it was ultimately unsuccessful.

On the other hand, the decision of the Nominal Defendant to defend the claim on the basis that the truck belonged to JJ Richards helped result in the costs of QBE being ordered against it. With the benefit of hindsight, such a decision turned out to be a mistake, although prior to trial it may have been unclear that the Court would find that the truck could not be identified. This case shows that the decision of a defendant to “point the finger” at other defendants in the proceeding can come at a cost.

 

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