PIPA indemnity costs & shifting onus of proof

Pollock v Thiess Pty Ltd & Ors (No 3) [2014] QSC 121

McMeekin J reviewed the authorities concerning s 39 of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) and came to the conclusion the onus of proof effectively shifted to the party denying indemnity costs – to establish a prudent reason to reject an offer because there was a significant change in the case. In instances where there are multiple defendants as was the case here, it is no answer that contribution between the defendants had not been resolved.

The Principles

[10] In support of its submission the first defendant cites my own decision in Gibbings-Johns v Corliss (No 2) [2010] QSC 78, describing the principles that I endeavoured to set out there as “uncontroversial”:

(a) The mandatory final offer … operates much as a Calderbank offer that is bettered at trial – the mere fact that the party making the offer obtains a judgment more favourable than the terms offered does not of itself inevitably demonstrate such special circumstances as would justify departure from the ordinary basis of a costs assessment;

(b) The fact that such an offer has been made is a significant but not decisive consideration in the exercise of discretion to award costs on the indemnity basis;

(c) A relevant matter to consider is whether it appears that the party sought to be made liable for costs on the indemnity basis has “imprudently or unreasonably” failed to accept the offer of compromise;

(d) The onus lies on the party seeking indemnity costs to demonstrate the imprudence or unreasonableness of the other party’s conduct that judgment has to be made on the basis of the relevant strengths and weaknesses of the cases that ought to have been apparent to the parties at the time when the offer was made.

[11] Those “principles” I derived from the judgment of Byrne J (as he then was) in Lawes v Nominal Defendant [2007] QSC 103. Byrne J said of a mandatory final offer made under the Motor Accident Insurance Act 1994 (Qld) regime that the principles applicable to a Calderbank offer were analogous and he summarised those principles as follows:

“…the mere fact that the party making the offer obtains a judgment more favourable than the terms offered does not of itself inevitably demonstrate such special circumstances as would justify a departure from the ordinary basis of a costs assessment: See Crump v Equine Nutrition Systems (No 2) [2007] NSWSC 25 at [39]-[41]; Gove v. Black [2006] WASC 298 at [43]-[47]; Balderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited [2006] NSWSC 583 at [30]-[37]; Fordyce v Fordham (No 2) [2006] NSWCA 362 at [16], [21]; Devprov v Seamark Pty Ltd [2007] QSC 31 at [4]; Westpac Banking Corporation v Commissioner of State Revenue [2004] 55 ATR 72[2004] QSC 19 at [30]-[32]; Gretton v The Commonwealth of Australia [2007] NSWSC 149 at [11]-[17]; Food Improvers Pty Limited v BGR Corporation Pty Ltd (No 4) (2007) 25 ACLC 177,[2007] FCA 220 at [35]; and Grice v The State of Queensland [2005] QCA 298 at [7].

Among the pertinent considerations is whether it appears that the party sought to be made liable for costs on an indemnity basis has imprudently or unreasonably failed to accept a Calderbank offer of compromise.

That will often involve an attempt to form a view about the relevant strengths and weaknesses of the cases that ought to have been apparent to the parties when the offer was made: cf Baulderstone Hornibrook Engineering at [34]-[35]; and Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69 at [11]-[14].”

[12] On further refection I am not sure that my summary in Gibbings-Johns is accurate or complete. I note that the three Queensland decisions cited by Byrne J are not directly on point.

[13] Under the PIPA the claimant is required to provide a complying Notice of Claim in the approved form (s 9). The information set out must meet the requirements of s 3 of the Personal Injuries Proceedings Regulations. That document alerts the respondent to the nature of the claim, how the injury was sustained, why the claimant alleges the respondent is liable and gives substantial details about the injury sustained and the claim made. The respondent is given time to investigate the claim and then must make a response. Section 20 provides in part that a respondent, within six months of receiving a complying Notice of Claim, must:

“(a) take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and

(d) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and  (e) make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.”

14] Section 21, which appears in Division 2 of Chapter 2, Part 1 of the PIPA, which Division includes sections 21 to 34, provides:

“The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.”

[15] Section 22 places an obligation on the claimant to provide relevant documents and information both about the incident and the injury. If required the claimant must verify information by statutory declaration: s 22(7). A joint expert report can be obtained: s 23. If necessary the respondent can have the claimant medically examined: s 25. The parties must hold a compulsory conference to discuss settlement and before doing so the party, or a solicitor acting, must certify certain matters. Section 37(2) sets out what that certificate must state:

(2) The certificate of readiness must state that, having regard to the documents in the party’s possession—

(a) the party is in all respects ready for the conference; and

(b) all investigative material required by the party for the trial has been obtained, including witness statements from persons, other than expert witnesses, the party intends to call as witnesses at the trial; and

(c) medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses at the trial; and

(d) the party has fully complied with the party’s obligations to give the other parties material required to be given to the parties under this Act.

[30]      The parties then meet and the MFO must then be made.

[31] The only reference to the effect of a mandatory final offer is, for present purposes, to be found in s 40 of the PIPA. So far as it is relevant s 40 of PIPA provides:

(4) A mandatory final offer must remain open for 14 days and a proceeding in a court based on a claim must not be started while the offer remains open.

(5) If the claimant starts a proceeding in a court based on the claim, the claimant must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant’s mandatory final offer.

(6) A respondent must, before or at the time of filing a defence, file at the court a sealed envelope containing a copy of the respondent’s mandatory final offer or, if a joint final offer is made by multiple respondents, a copy of the respondents’ mandatory final offer.

(7) The court must not read the mandatory final offers until it has decided the claim. (8) However, the court must, if relevant, have regard to the mandatory final offers in making a decision about costs.

[32] It is against this statutory background that the effect of the offer must be judged.

[33] The pre-court proceedings mandated under the PIPA evidently have two principal aims. The first and primary one is to attempt to avoid litigation – sub-paragraphs 4(2)(a) and (b) of the PIPA are relevant. The second aim supports the first – to ensure that the parties are fully prepared by the time of the conference and before starting litigation, such that they know or should know the strengths and weaknesses of their respective cases: ss 4(c) and 37(2). Section 21 could not be clearer. Prima facie s 40(8) too should be construed to support these aims – if a defendant is not at risk of an indemnity costs order should it not accept a claimant’s offer the key objective of avoiding litigation will be undermined.

[34] The usual rule is that costs follow the event (r 680 of the Uniform Civil Procedure Rules 1999 (Qld)). Indemnity costs can be awarded in the discretion of the Court (r 703 UCPR). The rules provide for only those two bases on which costs can be assessed – standard and indemnity. There is no point to s 40(8) if it is not to alter what would otherwise be the usual result in costs – and from a successful plaintiff’s perspective the awarding of indemnity costs when appropriate. The legislative direction that the court “must have regard” to offers, where relevant, is a strong indication that indemnity costs are intended to be ordered. Otherwise, where the claimant is the successful party, how is the offer to be “regarded”? The approach that I adopted in Gibbings-Johns was that the offer should, prima facie, be ignored not regarded.

[35] It is the absence of a direction that an indemnity costs order is the default position that has resulted in a distinction being drawn between an offer under the UCPR and an offer under the PIPA. The plaintiff’s submissions refer to this as an “anomaly.” I am not sure that it is. The legislature has been cautious not to tie the Court’s hands, conscious no doubt that the range of possible factual scenarios is infinite. However that may be, in the absence of such a legislative direction the ultimate burden of persuading the Court that the order on the indemnity basis should be made rests on the offeror. But it seems to me that the evidential burden readily shifts to the offeree.

[36] And the point is not without some significant effect. It has long been recognised that the awarding of standard costs leaves a party out of pocket: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 4. The discrepancy now is much greater than it was 20 years ago. Where a plaintiff has reasonably sought to avoid litigation entirely, and so avoid this imposition on him which significantly decreases his award, but has been frustrated by the attitude of those who have injured him, then I am not persuaded it is just to assert that it is the plaintiff who must do the explaining and justifying.

[37] In summary, a mandatory offer is required from a prospective plaintiff for the very purpose of ensuring that the claimant states precisely the amount of the judgment he or she seeks. The prospective defendant knows then where they stand. The offers exchanged set the parameters of the debate. The legislation presumes that each side have had time to investigate the matter and are substantially ready for trial. The whole point of the litigation that follows an exchange of offers is for each side to demonstrate the reasonableness of their position. If the respondent later appreciates the validity of the offer the effect of it for costs purposes can easily be neutralised, or substantially so, by the making of an offer in precisely the same amount.

[38] These considerations have led me to doubt the view that I have earlier expressed that aligns a MFO too closely with a Calderbank I doubt that it is right to assert, as I have, that as a general proposition “the onus lies on the party seeking indemnity costs to demonstrate the imprudence or unreasonableness of the other party’s conduct,” in the sense of requiring much more than the making of an offer after compliance with the legislation.

[39] Speaking generally it could only be prudent to reject an offer if there is a significant change in the case from the perspective of the defendant – and the defendant in question would be in a much better position to know that than the plaintiff. The making of an order on the indemnity basis where the MFO is less than the claimant eventually recovers, while not inevitable, would seem to me to be a useful prima facie starting point. Discretionary considerations can of course still impact on the decision.

[40] I turn then to the issues here.

[49] No officer of either defendant has sworn to their knowledge of the facts as at the date of the PIPA conference on 24 April 2013. Lawyers sometimes forget that it is not their understanding of the facts that is important but their client’s knowledge. While time is needed to provide legal advice on those facts the two week period in which the mandatory offer was open provided ample time here, assuming some lack of knowledge until the conference. As I will explain there seems to have been ample time well before that to assess liability issues.

[50] The defendants argue that because there were three of them and that they each had uncertainty as to who should bear responsibility to the plaintiff that that in itself introduced a complexity that justified a non acceptance of the offer. In context of this case this is an unattractive argument. It effectively seeks to make the plaintiff suffer costs in preparing fully on the liability issue for what was in reality an issue that concerned only the defendants’ interests.

[51] In my view the relevant question for each defendant when considering the position of the plaintiff is not what apportionment might I achieve vis à vis my fellow defendants but rather the much narrower and far less complex issue of what prospect do I have of avoiding liability entirely as against the plaintiff. Of course there was the issue of recovering contribution from the other defendants but no issue is raised that there was any concern about that.

[52] The issue was so confined because, as the plaintiff contends, if a defendant did not manage to avoid liability entirely then that defendant was jointly and severally liable to the plaintiff – so only a modest contribution by way of fault nonetheless would result in liability for the whole of the damage suffered. So in assessing their response to the claimant’s offer the issue for each defendant – so far as liability issues impacted on that decision – was: am I likely to be held responsible to an extent of even 1% for this accident? I put to one side the issue of contributory negligence, no argument having been advanced that that was ever a serious issue.

[53] As I have mentioned neither defendant has advanced evidence that by 24 April 2013 they did not know the relevant facts. Examination of the evidence shows that each defendant knew or should have known all relevant matters.

[80] The real issue seems to have been how liability was to be apportioned between the defendants. The second defendant argues that the 14 day period following the making of the MFO was insufficient time for the defendant to work out the question of an appropriate apportionment. But that assumes that consideration of the question of apportionment properly began on the day the offer was made. That approach ignores the obligations that the defendants had to fully prepare for the compulsory conference.

[81] The strong impression that I have is that the defendants had not prepared properly for the compulsory conference, if indeed they had prepared at all, as was their duty. If they had so prepared I have great difficulty seeing how they could not have had a clear view of the facts and the probable outcome.

[82] That the defendants had not been able to sort out who bore responsibility for the injury and its consequences is no reason to deny the plaintiff the protection of an order for costs assessed on the indemnity basis.

[94] Given the detailed claims and responses required by the PIPA provisions and the investigations that should have taken place there is no scope here for a defendant to complain, as the second defendant does, that the plaintiff did not analyse his offer so as to render it explicable to them. The legislation assumes that each side understands the position of the other. Where what is in issue is a relatively straight forward damages claim the onus is very much on the defendant to explain why it is that they did not fully comprehend the offer made, if that is indeed the case, and its potential effect. No one has sworn that there was any confusion here. The heads of loss are typical of such claims.

[97]    In my view it was imprudent and unreasonable of the defendants to not accept the plaintiff’s MFO.

David Cormack – Brisbane Barrister & Mediator



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