MAIA & mandatory offers affected by “factors that were not reasonably foreseeable”

Nichols v Curtis and QBE Insurance (Australia) Limited (No 2) [2010] QDC 99


I refer to my earlier posting concerning this decision. The matter returned to his Honour Andrews SC in respect of costs where the defendant did not beat the plaintiff’s mandatory offer in the pre-proceedings.

His Honour found:

[16] The test in s 55F(7) requires the court to consider whether the award of damages was affected by “factors that were not reasonably foreseeable”. That can be contrasted with other concepts related to the reasonableness of the MFO or the probability of factors changing based on history known to the date of the MFO. I find that the award of damages was affected by factors that were reasonably foreseeable at the date of the MFO. I am fortified by my conclusion that in another legal context it has been confirmed that foreseeability and probability are different:

“a risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable …when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence…A risk which is not far-fetched or fanciful is real and therefore foreseeable.”3

[17] The prospects of the plaintiff’s obtaining a greater assessment for future loss of earning capacity were increased by factors arising after the MFOs were exchanged. Her continuity of employment deteriorated but in ways consistent with disadvantages referred to in prior expert reports. The factors were reasonably foreseeable from a reading of the expert opinions. Accordingly, I am not entitled to make an order for costs pursuant to s 55F(7). I am obliged to award costs to the plaintiff on the standard basis to the maximum sum of $2,500.

3 Wyong Shire Council v Shirt [1980] HCA 12 at [13] per Mason J with Stephen and Aikin JJ agreeing

Brisbane Barrister – David Cormack

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