District Court New South Wales Medium Neutral Citation: Hawchar bht Manal El Haj Dib v Diab (No 3); Dib v Diab (No 3) [2018] NSWDC 282 Hearing dates: 21 September 2018 Date of orders: 04 October 2018 Decision date: 04 October 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) In the proceedings relating to Mrs El-Haj Dib: (a) The parties are to bring in agreed Short Minutes of Order consistent with the reasons for decision of Dicker SC DCJ within seven days; (b) Liberty to apply on two business days' notice; (c) The exhibit on the application is to be retained until further order. (2) In the proceedings relating to Manessa Hawchar: (a) The parties are to bring in agreed Short Minutes of Order consistent with the reasons for decision of Dicker SC DCJ within seven days; (b) Liberty to apply on two business days' notice; (c) The exhibit on the application is to be retained until further order. Catchwords: Torts – negligence – motor vehicle accident – whether payments by defendant's insurer for medical expenses made under Section 83 of the Motor Accidents Compensation Act 1999 (NSW) – effect of making of payments in relation to medical treatment of injured plaintiffs – appropriate order as to costs where plaintiff obtains only modest damages and is unsuccessful on a number of significant issues Legislation Cited: Civil Procedure Act 2005 (NSW) Health and Other Services (Compensation) Act 1995 (Cth) Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Attorney General for New South Wales v XX [2018] NSWCCA 198 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Hawchar v Diab [2018] NSWDC 219 Hawchar v Diab (No 2) [2018] NSWDC 268 Hooker v Gilling (No 2) [2007] NSWCA 214 Hunter Quarries Pty Ltd v Mexon (as Administrator for the Estate of Late Ryan Messenger) [2018] NSWCA 178 McGlen-McLeod v Galloway [2011] NSWDC 163 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 McLennan v Antonios (No 2) [2014] NSWDC 38 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 Category: Principal judgment Parties: Manessa Hawchar by her Tutor Manal El Haj Dib (First Plaintiff) Manal El Haj Dib (Second Plaintiff) Bilal Diab (Defendant) AAI Limited t/as GIO (Second Defendant) (from commencement of hearing until 16 May 2018) Representation: Counsel: D Campbell SC and R Di Michiel (Plaintiffs) W Fitzsimmons (Defendant from 17 May 2018) (Second Defendant from commencement of hearing to 16 May 2018) Solicitors: Premier Compensation Lawyers (Plaintiffs) Defendant (in person from commencement of hearing until 16 May 2018, thereafter Curwoods Lawyers) Curwoods Lawyers (Second Defendant from commencement of hearing until 16 May 2018) File Number(s): 2015/00221863; 2016/00194351 Judgment 1. On 10 August 2018, I handed down my reasons for decision in these two proceedings following a final hearing and made orders including for the parties to bring in agreed Short Minutes of Order to reflect those reasons for decision: Hawchar v Diab [2018] NSWDC 219 ("the Reasons for Decision"). 2. On 7 September 2018, two points relating to damages issues were argued by the parties and the court handed down its reasons for decision on those two points on 21 September 2018: Hawchar v Diab (No 2) [2018] NSWDC 268. Further difficult issues raised by the parties in relation to damages and costs were adjourned to 21 September 2018 for hearing. Prior to that date, written submissions were prepared and served by all parties relating to those damages issues and costs. 3. It is assumed that the reader of these reasons for decision is familiar with the reasons for decision in Hawchar v Diab [2018] NSWDC 219. In that decision, the court found relevantly: 1. That the physical injuries allegedly suffered by the plaintiff, Mrs Dib, in the motor vehicle accident had largely resolved at the latest by the end of 2014. Any symptoms after that date were held likely to have been very minor and transitory and could be dealt with by the use of occasional non-prescription analgesia: at [375]; 2. The accident was a minor one. The plaintiffs' medical conditions had largely settled no later than the end of 2014: at [399]; 3. The taking of prescription medicine by Mrs Dib from January 2015 was not reasonable or necessary for any injury arising from the August 2014 accident: at [399]; and 4. That medical appointments checking on the child Manessa Hawchar were reasonable until mid-2015, having regard to the fact she is a child and had complained of some pain: at [400]. 1. A number of matters were established or agreed for the purposes of the additional disputes as to damages and costs: 1. That payments were made by the compulsory third party insurer of the defendant in relation to medical expenses incurred by or on behalf of the respective plaintiffs beyond the periods determined by the court in the Reasons for Decision as reasonable closed periods for the provision of medical and related services arising from the accident; 2. That payments were made by Medicare to treating medical service providers in the relevant periods found by the court in relation to services provided to the injured plaintiffs. These payments did not exceed $5,000 in relation to each plaintiff; 3. The enquiries by the defendant's insurer in relation to the plaintiffs' claims for compensation took longer than three months from the date the insurer received the plaintiffs' claims. Under s 81(3) of the Motor Accidents Compensation Act 1999 (NSW) ("MACA"), if the insurer fails to give a written notice as to whether the insurer admits or denies liability for a claim made, within three months after a claimant gives notice of a claim, the insurer is taken to have given notice to the claimant wholly denying liability for the claim. Further, by letter dated 16 December 2014 in each matter, GIO informed the solicitors acting for the plaintiffs that it denied liability in relation to each of the plaintiff's claims: see Exhibit A on the application. 1. The remaining issues in dispute between the parties are as follows: 1. Whether the defendant can claim the benefit of certain payments made in relation to medical expenses of each plaintiff under MACA after the dates found by the court to be relevant concerning any other damages awarded by the court to each plaintiff; 2. Whether amounts paid on behalf of the plaintiffs by Medicare should be incorporated in any judgment orders made against the defendant; and 3. What are the appropriate orders for costs in the proceedings. The payments made on behalf of the plaintiffs by the insurer for medical expenses - s 83 of MACA. 1. Section 83 of MACA provides as follows: "83 Duty of insurer to make hospital, medical and other payments (1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of: (a) hospital, medical and pharmaceutical expenses, and (b) rehabilitation expenses, and (c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and (d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay), as incurred. (2) The duty of an insurer under this section to make payments applies only to the extent to which those payments: (a) are reasonable and necessary in the circumstances, and (b) are properly verified, and (c) relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates. Note. Medical disputes about payments under this section may be referred by the insurer or claimant to a medical assessor for assessment under Part 3.4. Other disputes may be referred to a claims assessor under section 96 for assessment. (2A) If the Motor Accidents Medical Guidelines approve particular treatment as appropriate treatment, or particular procedures as appropriate procedures with respect to the provision of rehabilitation services or attendant care services, in respect of any matter, any treatment, rehabilitation services or attendant care services provided to the injured person that accords with the approved treatment or procedures is taken to be reasonable in the circumstances for the purposes of subsection (2) (a). Note. Subsection (2) (a) also requires that treatment and services be necessary in the circumstances. (3) An insurer may agree to make payments to or on behalf of the claimant in respect of attendant care services provided by a person who is related to the claimant or by a person other than a person with appropriate training to provide those services. (4) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section. (5) A payment made under this section to or on behalf of a claimant before the claimant obtains judgment for damages against the defendant is, to the extent of its amount, a defence to proceedings by the claimant against the defendant for damages. (6) The amount of a payment made under this section to or on behalf of a claimant is to be included in the damages recoverable by the claimant for the purposes of any reduction of those damages by reason of the contributory negligence of the deceased or injured person. Note. If damages are to be reduced by reason of contributory negligence, subsection (6) ensures that the reduction extends to amounts paid by an insurer under this section. 1. It is accepted by the parties that payments were made for medical expenses in relation to each plaintiff by the insurer of the defendant even though ultimately liability was denied by the insurer on behalf of the defendant. 2. The defendant submits that he should get the benefit of such payments even though they were made in circumstances where the claim of each plaintiff was denied by the insurer. It is submitted, in general summary, that the context and purpose of the provision in the scheme in MACA leads to this conclusion. It is submitted that otherwise, payments made in good faith by a defendant's insurer in relation to medical expenses to assist an injured plaintiff would not be considered when damages are determined in an action and the defendant denied liability. 3. The plaintiffs submit that the text of s 83 of MACA is against that construction, and further, the context of the section and the purposes of the Act do not lead to an alternative conclusion. Various factors were pointed to by each party in favour of the arguments put forward on this statutory construction issue. 4. It is important to set out some general principles relating to statutory construction. 5. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], the majority of the High Court stated as follows: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed." 1. In Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] Gleeson CJ stated as follows: "[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v R. It was also discussed, in relation to a similar legislative scheme, in Kelly v R. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose." 1. In Attorney General for New South Wales v XX [2018] NSWCCA 198 the Court of Criminal Appeal stated as follows at [134]-[136]: "[134] The relevant principles of statutory construction are well‐established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky), the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", with the meaning of the provision to be "determined by reference to the language of the instrument viewed as a whole". Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". They also emphasised at [71] that a court must strive to give meaning to every word of a provision. [135] In Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the "language which has actually been employed in the text of legislation is the surest guide to legislative intention", but that the "meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy": see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Cmr of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v A‐G (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the "purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction". [136] However, as was emphasised in SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL), the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]: [14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. See also Gageler J at [35]–[39]; Interpretation Act 1987 (NSW) s 33." 1. In Hunter Quarries Pty Ltd v Mexon (as Administrator for the Estate of Late Ryan Messenger) [2018] NSWCA 178 Payne JA (with whom Gleeson JA and Sackville AJA agreed) stated at [57] as follows: "[57] The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Cmr of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]–[39]." 1. In relation to the text of s 83 of MACA, it appears clear from the words used by the legislature in s 83(1) commencing with "Once", that the section only applies where liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made. Here, there was a denial of liability by the insurer on behalf of the defendant and, accordingly, liability was not admitted or determined against the person against whom the claim is made when the medical expenses were paid in the present case for the plaintiffs. Section 83(5) relates to a payment made "under this section to or on behalf of a claimant before the claimant obtains judgment for damages". As the subsection refers to a payment made "under this section", in my view subsection (5) is qualified by the commencing words of s 83(1). There is nothing in the other subsections of s 83 which leads to a different construction when the section is reviewed as a whole. 2. Accordingly, in my view on the text of the section, the defendant in the present case could not assert as a defence the payments made by it under s 83(5) of MACA. 3. The appellate authorities to which I have referred above, make reference to the importance of considering the objects of the legislation under interpretation and the context of the provision in the Act as a whole. Sections 5 and 6 of MACA provide as follows: "5 Objects of Act (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability." "6 Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned." 1. Part 4.3 of MACA provides for different duties of an insurer and a claimant in relation to a claim. However, it seems clear to me that a distinction is made in relation to claims which are admitted and those which are denied either expressly or because of s 81(3) of MACA. Section 82(1) states that it is the duty of an insurer to make a reasonable offer of settlement to the claimant unless the insurer wholly denies liability for the claim in certain circumstances. Other duties are similarly qualified by words similar to the commencing words in s 83(1) relating to liability being admitted or determined: see for example s 84A. Duties to cooperate referred to in MACA seem to be aimed partly at assisting an insurer to make a decision whether to admit or to deny a claim and to make an informed offer of settlement: see ss 85-87 of MACA. 2. In my opinion, therefore, the context of s 83 in the Part in which it is situated in MACA, Part 4.3, does not point to a different construction to the textual construction which I have arrived at. A review of Part 4.3 and MACA generally, does not in my view point to a different construction. The objects of the Act in s 5 also do not point to a different construction as the Act has competing objects where liability is denied by an insurer. Section 5(1)(b) of MACA refers to "compensable injuries" which can only be injuries admitted or determined. Section 5(2)(a) of MACA provides that participants in the scheme under the Act "have shared and integrated roles" but different consequences apply where a claim is denied. 3. Mr Fitzsimmons, on behalf of the defendant, submits that this construction is inconsistent with the clear objects of the legislation which are to encourage early and appropriate treatment and rehabilitation of injured persons and to provide compensation for compensable injuries sustained in motor accidents and the early resolution of compensation claims. In my view, that is not the case, because in the present matters liability was denied by the insurer before the period expired which the court has found covers the entitlements of the plaintiffs arising from the accident. The defendant's insurer had a choice whether to admit or deny the claims. It had not made its decision and the statute had the effect of a denial. The two letters which became Exhibit A on the application constituted an express denial of the claims. 4. It is said that this approach would discourage an insurer making any early payments on behalf of an injured person. That may be a regrettable side effect of giving s 83 its literal construction. However, in my view, the framework of the Act makes a significant distinction between an admission and a denial by an insurer. If an insurer makes payments in relation to medical services after making a denial, then the insurer does not get the benefit of s 83(5) of MACA. It may have other remedies, but they are not relevant, in my view, to the defence which is provided in s 83(5) which covers a particular factual scenario which is different to that established here. 5. Accordingly, in my view I prefer the construction of s 83 and MACA advanced by the plaintiffs in the present case. The defendant does not have a defence under s 83(5) of MACA arising from the amounts paid by the insurer after the relevant dates concerning medical expenses of the plaintiffs. The effect of Section 38 of the Health and Other Services (Compensation) Act (1995) (Cth). 1. Certain payments have been made by Medicare for medical services provided to each of the plaintiffs in the present case. 2. The plaintiffs submit that amounts for the sums paid by Medicare for those services should be included in the judgment amounts awarded to the plaintiffs. However, they accept (and a formal concession was made to the court on behalf of the plaintiffs by their senior counsel Mr Campbell SC) that the defendant is not obliged to make the payments to Medicare for the plaintiffs unless required by Medicare. 3. The defendant denies that the sums paid by Medicare on behalf of the plaintiffs should be included in the judgment sums. It is submitted that the plaintiffs have no liability to pay those sums to Medicare for two reasons: 1. Section 38 of the Health and Other Services (Compensation) Act 1995 (Cth) ("HSCA"); and 2. The plaintiffs have not established that they have suffered any loss in relation to those amounts if they are not required to repay them. 1. The plaintiffs submit that the legislation is unclear but s 8(9)(c) of the HSCA seems to be limited to where the judgment relates only to the Medicare benefit. 2. Section 8 of the HSCA relates to recovery by the Commonwealth of past payments of Medicare benefits from judgments and settlements. Section 8(1) of the HSCA provides as follows: "8 Recovering past payments of medicare benefit from judgments and settlements (1) Subject to subsections (2), (3), (6) and (9), if: (a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and (b) medicare benefit has already been paid in respect of a professional service rendered to that person in the course of treatment of, or as a result of, the injury; and (c) a liability has not already arisen under section 7 in respect of that payment of medicare benefit; there is payable to the Commonwealth an amount equal to the medicare benefit." 1. It is noted that subsection 8(1) of the HSCA is subject to subsection (9) of the HSCA. 2. Section 8(9) of the HSCA provides as follows: "8 Recovering past payments of medicare benefit from judgments and settlements (9) This section does not apply if: (b) the amount of compensation fixed by the judgment or settlement is a small amount; and (c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates. Note: For small amount see section 38." 1. Section 38 of the HSCA provides as follows: "38 Waiver—small amounts of compensation (1) Despite Divisions 1 and 2, those Divisions do not apply in relation to a claim for compensation in respect of an injury if: (a) a judgment or settlement has been made in respect of the claim; and (b) the amount of compensation fixed by the judgment or settlement is a small amount; and (c) the amount of compensation so fixed is the entire amount of compensation in respect of the injury. (2) An amount of compensation is a small amount if it is equal to or less than: (a) $5,000; or (b) if a higher amount is prescribed for the purposes of this subsection by the regulations—that amount. 1. The term "compensation" is defined in s 4 of the HSCA: see s 3(1). 2. In my view, the submission of the defendant should be preferred in relation to these provisions. First, s 8(1) of the HSCA is subject to subsection (9) of s 8. Secondly, subsection 8(9) has two requirements. The first is that the amount of compensation fixed by the judgment is a "small amount" which is defined in s 38(2) of the HSCA as an amount equal to or less than $5,000. It is not in dispute that any amount awarded as damages to each plaintiff will be less than that figure. The second requirement is that the amount of compensation so fixed is the entire amount of the "compensation" for the injury to which the claim relates. This requires an examination of s 4. There is no evidence in the present case that the amount of any compensation awarded to the plaintiffs will not be the entire amount of compensation for the injury. For example, there is no suggestion that under the definition of compensation in s 4 of the HSCA, there is some additional payment of compensation to which the plaintiffs are entitled. They are not suggested to be entitled to any payment under a scheme of insurance or for workers compensation. None of the plaintiffs was employed at the time of the accident. 3. In those circumstances, there is not payable to the Commonwealth an amount equal to the Medicare benefit because of the waiver within s 38 in the case of small amounts of compensation. 4. In addition, for any amounts after 31 December 2014, in the case of Mrs Dib, and 30 June 2015, in the case of Manessa, the defendant would have no liability to pay any compensation for amounts paid by Medicare for medical services for such periods. 5. If the plaintiffs do not have to pay any amounts relating to medical services to Medicare arising from the accident for the periods found because of s 38 of the HSCA, then they have not suffered any relevant loss. A pleading point 1. The plaintiffs submit that if s 83(5) applies, the entitlement of the defendant under the section has not been pleaded. As I have found that s 83 of MACA is inapplicable to the payments made, this issue does not arise for consideration. Costs 1. Having regard to my findings in relation to the above matters, it seems that each plaintiff would be entitled to at least the $400 for future non-prescription analgesia: see [405] of [2018] NSWDC 219. In relation to Manessa, this sum would have to be paid to the court to be forwarded to the NSW Trustee and Guardian to be held on her behalf. 2. The issue therefore arises as to the appropriate costs order to make in the proceedings. 3. Section 98 of the Civil Procedure Act 2005 (NSW) provides that subject to the rules of Court and to the Civil Procedure Act and any other Act, costs are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent costs are to be paid. 4. Part 42.1 of the Uniform Civil Procedure Rules 2005 provides as follows: "42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 1. Although a party who is successful in proceedings has a reasonable expectation of being awarded costs against the unsuccessful party, there is no right to such an award and the usual principle that costs follow the event is subject to the power of the court, to make such orders as to costs as the interests of justice require. This is made clear in Part 42.1 itself: see Hooker v Gilling (No 2) [2007] NSWCA 214 at [24-25]. 2. In my view, the "event" in the present case for the purposes of Part 42.1 is the award of damages to each plaintiff in circumstances where liability was denied by the defendant. Accordingly, in my view each plaintiff has been the successful party. 3. The plaintiffs submit as follows: 1. The fact there is a nominal judgment for each plaintiff is no firm reason why the plaintiff should be deprived of their costs of the proceedings. See McGlen-McLeod v Galloway [2011] NSWDC 163 at [129]; and McLennan v Antonios (No 2) [2014] NSWDC 38 at [16]-[18]; 2. The defendant had denied liability in both proceedings; 3. One of the proceedings involved an infant; 4. The proceedings have been lengthy and hard fought. The plaintiffs have each been found to have been injured in the motor vehicle accident as a result of the negligence of the defendant and have each been shown to have suffered relevant loss and damage thereby and have each been shown to have a real risk of suffering future loss and damage; 5. The insurer decided to take the case out of the claims assessment process under MACA by denying liability. The insurer of the defendant applied to be joined as a party to the proceedings and was joined for a period. Fraud was alleged which is a serious allegation. The defendant, and his insurer, has lost "in a resounding way"; 6. Although the damages awarded will be modest, the plaintiffs have been successful, there is no real reason why cost should not follow the event and it is in the interests of justice that the plaintiffs be awarded their costs. 1. The defendant makes the following submissions: 1. Contrary to the submissions of the plaintiffs, the court found that the accident was a very minor one and a collision involved a slight impact at low speed: Reasons for Decision at [382]; 2. The credit and reliability of Mrs Dib was of central importance in the proceedings: Reasons for Decision at [220]; 3. Mrs Dib was found to be an unreliable and unsatisfactory witness who heavily exaggerated her problems arising from the accident both to the court and to medical practitioners: Reasons for Decision at [225]; 4. The assessment of Mrs Dib and her evidence was of significant importance to the determination of the factual and legal issues in the case: Reasons for Decision at [225] and [354](h); 5. The physical injuries suffered by the plaintiffs had largely resolved at the latest by the end of 2014: Reasons for Decision at [399]; 6. The court has a wide discretion under s 98 of the Civil Procedure Act: Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]; 7. The plaintiffs have substantially failed in their claim for damages; 8. The court fundamentally rejected the plaintiffs' lay and expert evidence in respect to damages; 9. The parts in relation to which the plaintiffs were successful constituted a very small portion of the trial. The parts on which the plaintiffs were unsuccessful constituted a very significant part of the trial; 10. If the court decides that the plaintiffs are entitled to notional verdicts, the court should make an order that each party pay their own costs of the proceedings. 1. In my view, having considered the differing submissions on this important issue carefully, the plaintiffs should not be entitled to their costs of the proceedings. There should be an order that each party pay their own costs of the proceedings for the following reasons: 1. Section 98 of the Civil Procedure Act confers on the court a wide discretion with respect to costs; 2. However, that wide discretion must be exercised judicially; 3. The general rule under Part 42.1 is that the court is to order that costs follow the event. In the present case, the event is the result of the proceedings brought in which the plaintiffs will be successful for a modest award of damages. Accordingly, the general rule is that the plaintiffs are entitled to their costs. They have no right to those costs and the court will exercise its costs discretion taking into account all the circumstances of the case in the interests of justice; 4. Where there has been a mixed outcome in the proceedings, being that the parties have been successful on some issues and not on others, the court should consider, when requested, the process of apportioning costs as between different issues in the proceedings and whether that is an appropriate order. In McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [21] and [43] Ward CJ in Equity held that this should generally only occur where there are exceptional or unusual circumstances. If appropriate, such an exercise will be carried out on a relatively "broad brush basis". It is often impossible to make a mathematical calculation. It is largely a matter of impression and evaluation by the court: Ryde Developments at [6]-[7]; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; 5. It may be appropriate to make a contrary costs order if the matters upon which a party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Bostik, above, at [38]; Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]; 6. In relation to Mrs Dib, the primary damages sought were for future treatment expenses and past and future domestic assistance. For Manessa, the primary damages sought were for future treatment expenses and a buffer for loss of future earning capacity. Both plaintiffs were unsuccessful in relation to these heads of damage in large part: see paragraph 398 of the Reasons for Decision. Past treatment expenses were only awarded for a limited closed period. The amount for future medication to be awarded is modest. While the plaintiffs were successful in establishing that the accident occurred and that they were injured in the accident, the plaintiffs were unsuccessful in relation to a number of matters which involved their primary heads of compensation. In addition, a very substantial portion of the time in the proceedings was aimed at attacking the credit of Mrs Dib and her sister Ms Dib. Their credit was crucial to the claims for past and future domestic assistance and for future treatment expenses. In my view, assessing the matter on a broad evaluative basis, these matters by far took up the majority of the time in the proceedings; 1. While it is true that the defendant denied liability and therefore caused the court hearing, the plaintiffs have been overwhelmingly unsuccessful in the two proceedings in relation to the damages sought; 2. In my view, exercising the discretion as to costs which I have, it would not be in the interests of justice in the light of the circumstances for the plaintiffs to be awarded their costs of the proceedings. 1. Accordingly, in my view each party should pay their own costs of the proceedings. 2. The parties should bring in agreed Short Minutes of Order within seven days consistent with these reasons for decision. 3. If I am held to be in error in relation to the appropriate order as to costs, the question arises whether a certification as to the costs of senior counsel should be made as requested by the plaintiffs. This may assist any assessor. 4. In my view, having regard to the denial of liability, the allegation of fabrication initially made by the insurer and the complexity of the factual issues, a certification as to the costs of senior counsel is clearly warranted. The court was assisted by the submissions of Mr Campbell SC on a number of complex evidential and legal issues. No submission was made by Mr Fitzsimmons to the contrary. Orders 1. I make the following orders: 1. In the proceedings relating to Mrs El-Haj Dib: 1. The parties are to bring in agreed Short Minutes of Order consistent with the reasons for decision of Dicker SC DCJ within seven days; 2. Liberty to apply on two business days' notice; 3. The exhibit on the application is to be retained until further order. 1. In the proceedings relating to Manessa Hawchar: 1. The parties are to bring in agreed Short Minutes of Order consistent with the reasons for decision of Dicker SC DCJ within seven days; 2. Liberty to apply on two business days' notice; 3. The exhibit on the application is to be retained until further order. ********** 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. Decision last updated: 08 October 2018