WCRA: certificate injury claim dismissed & costs ordered against the plaintiff

Millard v RI-CO (2004) Pty Ltd (In liq)(No. 2) [2014] QSC 100

I refer you to the summary of the decision below.

The certificate injury claim was dimsimmed and costs were ordered against the plaintiff for an injury which preceded the 2010 amendments.

Ann Lyons J

[9] In my view s 311 makes it clear that ss 312 to 314 of Reprint 2C do not apply and I must consider the general principles in relation to costs. It would seem to me however that the decision of White J in Black v Warwick Shire Council (No 2) has made the costs situation in a case such as the present abundantly clear. Whilst I accept counsel for the plaintiff’s argument that the plaintiff has sustained serious injuries and should not be further burdened with a costs order, that was also the case in Black where the plaintiff’s injuries had been assessed as giving rise to a work related injury of 43%. Furthermore, the general principles indicate that empathy for a party’s circumstances or even proven hardship are not usually grounds for the Court to make orders other than the usual orders as to costs. In Barristers’ Board v Young6 the Court held:

“The financial burden which the respondent will suffer is certainly regrettable, but neither that consequence nor the other matters upon which the respondent relies warrants departure from the usual position, that the costs of the applicant be paid by the respondent.”

[10] I consider that the inescapable conclusion is that this case is also governed by s 221 of the Supreme Court Act 1995 (Qld) and r 681(1) of the UCPR. Rule 681(1) provides that costs “are in the discretion of the court but follow the event, unless the court orders otherwise.” The relevant principles in this regard were expressed by

McHugh J in Oshlack v Richmond River Council7 in the following terms:

“The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award for costs is to indemnify the successful party…

If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for costs of unsuccessful litigation.”

[11] Accordingly, the plaintiff should pay the costs of and incidental to the proceeding to be assessed on the standard basis.

6 [2002] QCA 85

7 (1998) 193CLR 72 at 97

Brisbane Barrister – David Cormack

Difficult-to-drive crane in out of control road crash, employer not liable

Millard v RI-CO (2004) Pty Ltd (In liq) [2014] QSC 79

A mining construction supervisor who crashed a mobile crane he had commandeered for weekend work at his own rural property, has claimed his employer must pay him compensation for the serious injuries that resulted because it failed to warn him of inherent risks of driving the vehicle on roads.

Read more…

Reproduced with the permission of Carter Capner Law.

David Cormack – Brisbane Barrister.

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