New South Wales Supreme Court CITATION : South Western Sydney Area Health Service v Joseski [2007] NSWSC 351 HEARING DATE(S) : 13/04/07 JUDGMENT DATE : 18 April 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The preliminary determination made by the Cost Assessor on 24 August 2006 is set aside. The decision is remitted to the Cost Assessor. The Costs Assessor is ordered to redetermine the application. The defendant is to pay the costs of this appeal. CATCHWORDS : Damages recovered in respect of health care claim - assessment of order for costs - personal injury damages - application of s198D Civil Liability Act 2002 (NSW) LEGISLATION CITED : Health Care Liability Act 2001 (NSW) Legal Profession Act 1987 (NSW) PARTIES : South Western Sydney Area Health Service Steven Joseski FILE NUMBER(S) : SC 14694/06 COUNSEL : Mr M. L. Brabazon (Pl) Mr J. W. Conomos (Def) SOLICITORS : General Insurance Law Department (Pl) D. Stanefska & Associates (Def) LOWER COURT JURISDICTION : Costs Assessor LOWER COURT FILE NUMBER(S) : 00000133/06 LOWER COURT JUDICIAL OFFICER : Ms W. Strathdee LOWER COURT DATE OF DECISION : 24/8/2006 LOWER COURT MEDIUM NEUTRAL CITATION : Joseski v South Western Area Health Service - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 18 APRIL 2007 14694/2006 SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v STEVEN JOSESKI JUDGMENT 1 HIS HONOUR: The defendant was a voluntary patient in the Mental Health Unit of the Liverpool Public Hospital. On 19 March 1999, whilst in the smoking room thereof, he was punched in the face by a fellow patient. As a result of the punch, the defendant suffered physical and psychological injury. 2 In the District Court, on 3 September 2001, he brought a claim for damages against the plaintiff. It was a claim founded on the tort of negligence. On 22 February 2005, he was successful in those proceedings (recovering a judgment in the order of $32,513). The plaintiff was ordered to pay his costs of the proceedings. 3 One of the issues confronting the Trial Judge was the question of the regime under which the damages were to be assessed (under the Civil Liability Act 2002 (NSW) (the CLA) or the Health Care Liability Act 2001 (NSW) (the HCLA)). 4 The Trial Judge came to the view that the HCLA applied and he assessed the damages accordingly. There has been no appeal from that decision. 5 On 31 January 2006, the defendant made application for an assessment of the costs payable under the order. The application was referred to a Costs Assessor (Ms Strathdee). The parties joined issue on a preliminary matter (whether or not the assessment was subject to s.198D of the Legal Profession Act 1987 (NSW) (the LPA)). 6 On 24 August 2006, the Cost Assessor gave her decision on the preliminary matter. She decided that the limitation on the amount of costs recoverable in the LPA and CLA did not apply to the costs in the proceedings. 7 In the reaching of that decision, she referred to what had been said by the Trial Judge in paragraphs 178-180 of his judgment (which dealt with his decision as to the applicable regime for the assessment of damages). 8 The Cost Assessor then observed as follows:- "There was nothing placed before me to indicate that there was any submission put before His Honour as to the appropriate regime as to costs. In my view if the Cost Respondent wished to dispute that the costs ought be assessed under legislation different to that which his Honour applied in assessing damages, that ought to have been done. It is not the role of a costs assessor to interpret the order of a Court but to apply it. In the absence of anything to the contrary it seems to me that the HCLA applies and that the LPA and CLA do not. Further, section 329 of the LPA 2004 provides regulations to provide for fixed costs. The regulation defines costs to be fixed under s329(1)(b) for personal injury damages "(within the meaning of the Civil Liability Act 2002)". The Trial Judge found that the CLA did not apply." 9 On 22 September 2006, the plaintiff filed a Summons in this Court. The plaintiff seeks to have the decision set aside on the basis of error of law. The plaintiff contends that the assessment of costs is governed by s.198D as modified by Part.19 of Schedule 8. 10 Section 198D fixes a maximum of costs of claims up to $100,000. If it has application in the present case, it would restrict the costs recoverable by the defendant at 20% of the amount recovered or $10,000, whichever is greater. As I understand the position, the costs claimed are well in excess of what is recoverable if s198D has application. 11 The section forms part of Division 5B of the LPA. Division 5B was introduced into the LPA by the CLA (which retrospectively commenced on 20 March 2002). 12 Part 19 of Schedule 8 contains provisions expressed to be consequent on enactment of the CLA. Clause 90 deals with the application of costs amendments. Clause 91 provides for an apportionment of costs for legal services. The effect of those provisions is to implement the restrictions imposed by s.198D on or after 7 May 2002. 13 Section 198D has application to an amount recovered on a claim for personal injury damages as those words are defined in Part 2 of the CLA. For the purposes of Part 2, personal injury damages are defined to mean damages that relate to the death or injury of a person. 14 The HCLA commenced on 5 July 2001. It has application to a "health care claim". It is defined to mean a claim in any civil action for damages against a health care provider in respect of an injury or death caused wholly or partly by the fault of the health-care provider in providing health care. 15 The HCLA does not create any cause of action. What it does do is provide a regime for the assessment of awards of damages in health-care claims (Part 2). It does not deal with questions of costs in relation to any such claim. 16 Largely, the defendant repeats what was said in the "General Responses" which were made to the Cost Assessor. This case can be decided without addressing specific submissions made in that document. 17 The general submission is that damages awarded in respect of health care claims do not fall within the definition of personal injury damages. In oral submissions, the Court was reminded that the defendant's claim arose out of intentional act. 18 Part 2 of the CLA is expressed, to apply to and in respect of an award of personal injury damages subject to certain expressed exclusions from the operation of Part 2. One of the exclusions concerns an award where the fault concerned is an intentional act that is done with intent to cause injury. 19 In my view, this exclusion does not assist the defendant. The award made in his favour was not founded on intentional act of the plaintiff and, in any event, the exclusion does no more than exclude such an exception from the operation of Part 2 (the operation of which is concerned inter alia with assessment of damages). Part 2 has no application to questions of costs. 20 I now return to the reasons relied on by the Cost Assessor. It appears that she has erroneously assumed that what was done by the Trial Judge not only dealt with the question of the appropriate regime for the assessment of damages but also questions of costs in respect of the claim. In my view, it did no such thing. What was said by the Trial Judge related solely to the regime for the awarding of damages. 21 Whilst it brings about an unfortunate result for the defendant in the light of the statutory provisions, the Court has no alternative but to come to the view that there has been error by the Cost Assessor, which justifies the disturbing of her preliminary decision. It seems to me that s.198D does have application to the present case. 22 Accordingly, I am of the view that the plaintiff has made out its appeal. 23 The preliminary determination made by the Cost Assessor on 24 August 2006 is set aside. This decision is remitted to the Cost Assessor. The Cost Assessor is ordered to redetermine the application. The defendant is to pay the costs of this appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.