Langdon v Carnival PLC t/as P&O Cruises Australia (No. 2)

This judgment involves costs. The substantive judgment concerns a personal injury suffered by the plaintiff allegedly caused by a step giving way in the pool while on a cruise operated by the defendant.

The plaintiff is Peter Langdon. The defendant is Carnival PLC t/as P&O Cruises Australia ACN 107 998 443. The plaintiff was represented by R. McIlwaine SC of counsel. The defendant was represented by C.P. O.Neill of counsel. The judgment was delivered on 16 November 2023. On that day, I entered judgment in favour of the defendant and that the plaintiff pays the defendant’s costs of the proceedings on an ordinary basis. Both parties have now filed submissions as to the alternative costs orders they seek.

The defendant seeks the plaintiff pay its costs on an indemnity basis. The defendant sought to formally resolve the proceedings by offer on two occasions. No submissions are made by the plaintiff in relation to the final offer of compromise. The defendant seeks its costs be paid on an indemnity basis from the expiry of those offers either on 25 June 2021, or alternatively, 19 April 2022, in accordance with either the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) or in accordance with the principles set out in Calderbank v Calderbank [1976] Fam 93 (‘Calderbank’).

The plaintiff opposes the order made on an indemnity basis. The plaintiff seeks:

The parties agree that each party bear their own costs with respect to these submissions on the issue of alternative cost orders.

The starting point is the Court’s power to award costs in the circumstances governed by s 98 of the Civil Procedure Act 2005 (NSW), which confers the Court broad discretionary power, and rr 20.26 and 42.15A of the UCPR which relevantly reads:

The general rule is that costs are payable on an ordinary basis. A court should only depart from the general rule and award indemnity costs where the conduct of the party against whom the order is sought is “plainly unreasonable”: see Sydney City Council v Geftlick [2006] NSWCA 280 (‘Geftlick’) per Tobias JA at [91] (Mason P and Hodgson JA agreeing). Indemnity costs orders should be reserved for the most unreasonable actions by unsuccessful plaintiffs: see Leichhardt Municipal Council v Green [2004] NSWCA 341 (‘Leichhardt Municipal Council’) per Santow JA at [57] (Bryson and Stein JJA agreeing). This decision applies to Calberbank offers but not necessarily to offers of compromise.

In Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790, Bergin J (at [9]) confirmed the relevant principles in relation to Calderbank offers by reference to Leichhardt Municipal Council, stating that the costs consequences attendant under the general law upon an offer of compromise made in a Calderbank letter are in the court’s discretion, to be exercised having regard to all of the relevant circumstances of the case. Firstly, there is not a prima facie presumption in favour of an award for indemnity costs if the Calderbank offer is not accepted and is not bettered; secondly, a Calderbank offer that has no real element of compromise in it, which is designed merely to trigger costs sanctions, will not be treated as a genuine offer of compromise; thirdly, there is no rule that an optimistic offer is not a genuine offer. Whether or not it was reasonable to reject an offer is a question that may figure in the discretionary balance, but it is not a question which affects the genuineness of the offer; and fourthly, an applicant for an order for indemnity costs consequent upon an unaccepted Calderbank offer must show that the rejection of the offer was unreasonable. Thus the questions for the court are (a) whether the offer was a genuine offer of compromise; and (b) whether it was unreasonable for the recipient of the offer not to accept the offer: see Miwa Pty Ltd v Siantan Properties Pty Ltd (No. 2) [2011] NSWCA 344 at [8].

The defendant submitted that the 2 offers are either offers of compromise or Calderbank offers.

By letter dated 24 June 2021, the defendant served a Calderbank letter proposing resolution of the entirety of the plaintiff’s claim on the following terms:

The defendant’s first offer was open for acceptance for 28 days from the date of service. The plaintiff allowed the defendant’s first offer and Calderbank offer to lapse without response.

On 2 September 2021, before the second offer of compromise was made the defendant wrote to the plaintiff’s solicitor and stated:

By email dated 19 April 2022, the defendant served a further offer of compromise in which it offered to resolve the entirety of the plaintiff's claim against it on the basis of judgment for the plaintiff in the sum of $80,000 (‘defendant’s second offer’). This offer of compromise was silent as to costs.

The defendant’s second offer was open for acceptance for 28 days from the date of service.

The defendant’s second offer was allowed to lapse without response.

On 27 April 2022, the plaintiff served an offer of compromise in which the plaintiff offered to resolve the entirety of his claim against the defendant on the basis of a judgment for the plaintiff in the sum of $750,000 and that the defendant pay the plaintiff’s costs.

For completeness, on 23 March 2023, the plaintiff made a Calderbank offer to the defendant that it pay the plaintiff the sum of $200,000 plus costs assessed on a “standard basis”.

These offers of compromise were allowed to lapse.

The defendant submitted that it has obtained judgment on the plaintiff’s claim on terms that are no less favourable to it than the terms of the defendant’s first offer and in the alternative, no less favourable to it than the terms of the defendant’s second offer.

Rule 20.26(3)(a)(i) of the UCPR specifically anticipates circumstances in which a party may propose judgment in favour of the defendant with no order as to costs.

In Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336, Campbell JA, with whom McColl JA and Sackville AJA agreed, stated at [17]:

On 25 June 2021, at the time of the defendant’s first offer, it stated that it had incurred substantial costs in the sum of $8,553.60 inclusive of GST. The defendant’s willingness to forego what would have otherwise been its entitlement to legal costs up to the date of the proposed dismissal, pursuant to r. 42.19(2) of the UCPR, therefore represented a genuine and significant compromise.

The defendant submitted that its first offer was made at a time when the plaintiff knew or ought to have known that he had:

It was unreasonable for the plaintiff to reject the defendant’s first offer because the plaintiff knew or ought to have known that his claim was founded on an evolving, inaccurate, and favourable version of the subject incident. Her Honour Harrison AsJ formed the view that “the plaintiff sought to portray himself in a favourable light so has tailored his evidence to do so”: Judgment at [120].

The defendant’s Calderbank letter set out the basis upon which the defendant’s first offer and/or Calderbank offer were reasonable.

The first Calderbank letter specifically put the plaintiff on notice that:

The Court of Appeal (per Meagher, Beazley and Santow JJA) in Jones v Bradley (No 2) [2004] NSWCA 258 (‘Jones v Bradley (No 2)’), “‘Calderbank offers’ are well recognised means of making offers of settlement in circumstances where the party making the offer ultimately seeks a costs advantage if the offer is not accepted”.

In the alternative, the defendant seeks an order for costs to be awarded on the ordinary basis up to 19 April 2022, and on an indemnity basis thereafter.

On 19 April 2022, at the time of the defendant’s second offer, it submitted that it had incurred substantial costs in the sum of $35,027.50 inclusive of GST. The defendant’s willingness to forego what would have otherwise been its entitlement to legal costs up to the date of the proposed dismissal, pursuant to r. 42.19(2) of the UCPR, therefore represented a genuine and significant compromise.

The terms of the defendant’s second offer would have meant that the plaintiff would have received a sum of money and his costs paid. The defendant has bettered that offer by some margin.

The defendant repeats paragraph [23] in relation to the second offer.

It was unreasonable for the plaintiff to reject the defendant’s first offer because the plaintiff knew or ought to have known that his claim was founded on an evolving, inaccurate, and favourable version of the subject incident.

The defendant has been put to significant expense by the plaintiff’s commencement and continuation of his claim.

The defendant in its written submissions seeks the plaintiff pay its costs in accordance with the UCPR or Calderbank, on the basis that it sought to resolve these proceedings by serving offers on two (2) occasions.

The plaintiff allowing the defendant’s offers to lapse does not automatically entitle the defendant to costs on an indemnity basis in accordance with Calderbank. By not letting the defendants’ offers to lapse was not unreasonable so as to justify this type of costs order, and the greater circumstances of the litigation ought to be taken into consideration by the Court.

At the time of each offer, the plaintiff was not equipped with sufficient information to understand nor appreciate the difficulties in his case, in part due to the conduct of the defendant. He did not consider either offer compelling and did not act unreasonably in declining the offers when considering the context of the expert medical and liability evidence available at the time. The plaintiff is entitled to rely on expert opinion in assessing the merits of his case and considering any offers made by the defendant.

The defendant’s conduct generally, but specifically in relation to the issue of liability, was obstructive and caused unnecessary delay to these proceedings. On this basis, the defendant by virtue of its conduct should not be entitled to costs of an indemnity basis, having regard to the guiding principles stipulated by sections 56 to 60 inclusive of the Civil Procedure Act 2005 (NSW).

The Court should not grant the orders sought and submitted that the defendant is only entitled to the usual order for costs which a successful litigant is entitled to receive, being costs on a “party and party” basis.

Unusually, the plaintiff also submitted that he ought to be entitled to costs from the defendant, on a “party and party” basis until the date the defendant admitted breach, being 1 September 2021.

Prior to engaging solicitors, the plaintiff attempted to engage with the defendant as early as 22 November 2017.

The plaintiff through his solicitors continued to attempt to engage with the defendant without the need for litigation, to no avail. It became apparent that the plaintiff would be required to commence proceedings in order to obtain the CCTV footage of the incident and progress any claim for damages.

Once proceedings were commenced, on 17 December 2020 the plaintiff filed a subpoena for the production of records relating to the subject incident (“the subpoena”). The scope of the subpoena requested documents relating to subject incident including but not limited to the CCTV footage and maintenance records relating to the step.

The defendant filed its defence on 12 February 2021 in which it:-

The plaintiff notes the following timeline of events relating to the issue of the defendant’s non-compliance with the subpoena, proposed interrogatories and liability evidence:-

Substantial cost was incurred by the plaintiff in relation to the issue of the defendant’s non-compliance with the subpoena, and lack of response regarding the proposed interrogatories.

In addition to plaintiff’s solicitors spending considerable time and resources making enquiries with a liability expert, during the month of August 2021 time was spent drafting a notice of motion and supporting affidavit, seeking orders to administer interrogatories on the defendant.

The directions listings on 7 July 2021, 13 August 2021 and 2 September 2021 mostly comprised the parties’ conferral on these issues, which ultimately resulted in the defendant’s concession on breach.

The plaintiff attempted to prepare his liability case and position from as early as 2018. From 8 June 2021, the plaintiff requested the defendant concede on breach and file an amended defence to admit paragraphs 4(e) and (f) of the statement of claim.

The plaintiff also notes the following:-

The defendant was aware of the plaintiff’s injuries and disabilities as early as 1 February 2021 when the plaintiff’s statement of particulars was filed.

Orders were first made on 2 September 2021 for the provision of expert medical evidence and required the defendant to serve expert medical evidence by 11 March 2022.

The defendant first confirmed bookings were made with experts on 17 August 2021 and 25 August 2021 respectively. The defendant did not proceed with an appointment with an Orthopaedic Surgeon on 8 September 2021; later booking an assessment with a different expert on 7 June 2022.

The defendant served medical evidence for the first time on 17 March 2022 (being the opinion of Dr Doron Samuell, Psychiatrist, only) despite Orders requiring same by 11 March 2022. The defendant later served further expert medical evidence on 6 July 2022 and 23 December 2022, with leave of the Court.

In relation to the defendant’s first offer of compromise, the defendant in written submissions asserted that the first offer was made at a time when the plaintiff knew or ought to have known that he had:

The plaintiff rejects this these assertions. As at the date of the first offer the plaintiff had served one (1) medico-legal report, being the report of Professor Lorraine Dennerstein dated 22 June 2018. No expert medical evidence had been obtained by the defendant. There were no “multiple inaccurate and inconsistent accounts of the subject incident to various medico-legal experts.”

The first offer was not a genuine offer and did not contain any real element of compromise. It demanded a complete capitulation when the defendant had previously withheld documents. The documents should have been provided to the plaintiff without delay and would have eliminated a significant portion of the defendant’s costs incurred up until the date of the second offer.

The plaintiff and his solicitors did not have the benefit of reviewing the CCTV footage until produced by the defendant to the Court on 2 March 2021. This Court (as evidenced by the Practice Note) expects that when cases are commenced – significant steps have been taken to prepare the case, including the obtaining of medical opinions.

The assessment conducted by Professor Dennerstein was on 20 June 2018. The report was served on 28 January 2021. The plaintiff’s version of events at that time was to the best of his recollection and belief, and the expert and the plaintiff’s solicitors relied on these instructions in the absence of footage; which as detailed above had been withheld by the defendant.

Failing to provide those documents could lead to a conclusion that the offer did not involve “a real and genuine element of compromise” [emphasis added] (See Herning v GWS Machinery Pty Ltd (No. 2) [2005] NSWCA 375; Regency Media v AAV Australia Pty Ltd [2009] NSWCA 368; and other cases cited in Tonna v Mendonca (No. 2) (2011) 288 ALR 385; [2020] NSWSC 306).

In its written submissions the defendant states that the first offer was made at a time which one would expect any significant expenditure on costs legitimately or reasonably to have been incurred, and that it had incurred substantial costs in the sum of $8,553.60 inclusive of GST at this time of making the defendant’s first offer. The plaintiff rejects that its willingness to forego payment of these costs on the terms proposed by the first offer represented a genuine and significant compromise at that time.

In this regard the plaintiff also takes the opportunity to note the defendant’s concession of breach on 1 September 2021, some eight (8) months following service of the subpoena and ten (10) months following the commencement of proceedings. Despite this concession, there was further delay in the defendant filing its amended and further amended defence (which did not occur until 7 October 2022); a total delay of approximately twenty (20) months. Up until the filing of the amended defence, the plaintiff had no pleadings which confirmed the defendant’s breach of duty.

In Jones v Bradley (No 2) in its written submissions: “‘Calderbank offers’ are well recognised means of making offers of settlement in circumstances where the party making the offer ultimately seeks a costs advantage if the offer is not accepted” [emphasis added]. Indemnity costs should not be used as a weapon to inhibit either party from litigating an issue reasonably in contention between them.

The defendant’s legal costs from the commencement of proceedings to the date of the defendant’s first offer was likely for time spent obstructing the plaintiff’s liability case and investigations. Substantial cost was incurred by the plaintiff’s solicitors during this period, majority of which could have been avoided with the defendant’s cooperation.

It was not unreasonable for the plaintiff to not accept the defendant’s first offer at the time in which it was made. It was not a true compromise of the case at that time.

On or about 19 April 2022, the defendant served a further offer of compromise in which it offered to resolve the entirety of the plaintiff's claim against in the sum of $80,000.00 (“the second offer”).

The second offer was open for acceptance for twenty (28) days, expiring on or about 17 May 2022. The plaintiff did not accept the second offer and allowed the offer to lapse. The second offer was not a genuine offer and did not contain a real element of compromise.

In the defendant’s written submissions, it states that it was unreasonable for the plaintiff to reject the second offer because “the plaintiff knew or ought to have known that his claim was founded on an evolving, inaccurate, and favourable version of the subject incident.” The plaintiff rejects these assertions.

As at the date of the second offer, the defendant had been served with the plaintiff’s expert medical evidence. This issue of causation remained at large.

At the time the second offer was served (on 19 April 2022), the defendant had not served on the plaintiff any expert medical evidence relating to the plaintiff’s physical injuries. There was no alternative opinion evidence on causation in which the plaintiff could make an evaluative opinion on the strength, or weakness, of the case.

On the issue of causation, the defendant relied on the opinions of Dr Brett Courtenay, (contained in his report dated 4 July 2022) and Dr Seamus Dalton (contained in his report dated 16 May 2022); both of which the defendant did not have in its possession at the time of making its second offer.

The defendant also submitted that at the time on the second offer, it had incurred substantial costs in the sum of $35,027.50 inclusive of GST. The plaintiff rejects the assertion that its willingness to forego payment of these costs on the terms proposed represented a genuine and significant compromise at that time.

The defendant served expert medical evidence for the first time on 17 March 2022. This was despite the report of Dr Doron Samuell, Psychiatrist, being dated 20 December 2021, following the assessment which was conducted on or about 27 October 2021.

Assuming the defendant received and reviewed the report at some point between 20 December 2021 and 17 March 2022, a large portion of the defendant’s legal costs from the commencement of proceedings to the date of the defendant’s second offer likely related to the defendant’s obstruction of the plaintiff’s liability case until 1 September 2021.

It is a matter for the defendant to explain work rendered by its solicitors for the period 1 September 2021 to the date of the second offer, as breach had been admitted with the main issue in dispute remaining being causation and quantum. The plaintiff did not receive details of an assessment with Dr Courtenay until 3 May 2022 with his opinion being provided to the plaintiff on or about 6 July 2022. Further, Dr Dalton’s report was prepared on the paper and was received by the plaintiff on or about 23 June 2022.

It was not until the provision of the defendant’s medical opinion evidence that the plaintiff had any alternative opinion as to causation. It was not unreasonable until the defendant had served all its evidence, for the plaintiff to reject the defendant's second offer.

Further the plaintiff makes reference to my findings of causation of the plaintiff’s physical injuries [at 212]:

The plaintiff accepts that the determination [at 225 and 230] is that the plaintiff has not established that he suffered a psychological and/or psychiatric condition caused by the subject incident.

The plaintiff’s credibility is a matter to consider in the preparation of a damages case arising from negligence, and that this was an issue for her Honour to consider at hearing. In the absence of medical evidence relating to the plaintiff’s physical injuries from the defendant, the plaintiff fails to see how this ought to have been considered at the time of the second offer was made.

For these reasons, the plaintiff acted reasonably in not accepting the defendant’s second offer, at the time on which it expired on or about 17 May 2022.

While the plaintiff conceded that the defendant has obtained judgment on terms no less favourable to it than the terms of both the first and second offers, the plaintiff rejects that the defendant is entitled to either of the cost orders sought.

The plaintiff noted that the defendant has been put to the expense of defending these proceedings. The plaintiff submitted that the defendant’s conduct contributed substantially to the delay and elevated cost of the continuation of same.

The case was decided on the issue of factual causation in the defendant’s favour. The plaintiff noted his success on the issue of breach. The defendant would have failed at hearing in the absence of this concession on the issue if breach, however substantial costs were incurred by the plaintiff in dealing with this issue.

The course of the litigation demonstrates exceptional circumstances that warrant the Court’s consideration on the issue of costs, and that the appropriate and just order should be the usual order for the payment of the defendant’s costs on a “party and party” basis only.

The defendant ought not receive its costs even on a “party and party” basis with respect to the period up until admission of breach of duty, being 1 September 2021. Any cost order with respect to the payment of the defendant’s costs ought to commence from 1 September 2021.

The plaintiff’s primary contention for why it is that the defendant should not have its costs as sought is that he was not fully appraised of the case he was to meet at the time of the various offers, which is said in part to be due to the defendant’s conduct. The defendant’s conduct is also advanced as the basis for what appears to be an “otherwise order” that the defendant pay the plaintiff’s costs for a period.

The Court should take a dim view of any contention that seeks to assign responsibility for the plaintiff’s plight upon the defendant. This is particularly so as the plaintiff was at all times represented by competent solicitors, was aware of what had occurred on the day of the accident, was aware of what he had informed his medical experts and ultimately that this was his case to bring, settle or discontinue.

The defendant’s conduct, and in particular the conduct complained of, could not have borne upon the reasonableness of the plaintiff’s refusal to accept any offer, particularly considering that ultimately the result turned upon the Court not being able to accept the plaintiff’s evidence. Nor could it attract any criticism.

On an application to depart from the ordinary rule of costs, the onus lies upon the unsuccessful party: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]. If considering a departure from the ordinary rule, the Court should have regard to the purpose, rationale and principles of fairness which inform the general rule, referred to above, in particular that the award of costs should reflect the relative responsibilities of the parties for the incurring of costs: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]; Turkmani v Visalingam (No 2) [2009] NSWCA 279 at [13].

The Court retains a broad discretion in respect of these matters: Oshlack v Richmond River Council [1998] HCA 11; (1999) 193 CLR 72 at [69]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 at [97]–[98].

Only in an exceptional case would a successful party not only be deprived of its costs but also ordered to pay an opponent’s costs: Knight v Clifton [1971] Ch 700; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 42 FLR 213 at 220; Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5.

There was simply nothing in relation to the defendant’s conduct of the proceedings which in anyway would entitle the plaintiff to an otherwise order, or that would cause the Court concern in relation to either of the two offers the defendant made to settle the proceedings on terms that were better than the outcome of the proceedings for the plaintiff.

Take for example the complaint about various extensions to the timetable. True it is that the defendant needed to seek various extensions to the timetable. Minor delays are common in all litigation, particularly in circumstances where a party has little or no control over the availability of experts, or the time an expert requires to complete a report. That delay was not relevant to the plaintiff’s case in any event.

Take for further example the defendant admitting breach after it had initially denied it. All that did was narrow the issues in dispute rather than waste the Court’s time unnecessarily. That is entirely appropriate conduct.

Another example is the fact that the defendant served its medical evidence after the offers of compromise (being an entirely normal time to do so). There was nothing in the medical evidence that changed the core understanding of the case.

The plaintiff’s submissions neglect to concede that the primary cause of the costs in the proceedings were entirely at the feet of the plaintiff, namely:

Some complaint is made in the plaintiff’s submissions that at the time of each of the defendant’s offers, there was insufficient evidence exchanged between the parties for the defendant to appreciate the reasonableness of the offers. In fact, at the time of making its offers, it was the defendant that was at a forensic disadvantage as compared to the plaintiff, as the plaintiff had direct knowledge of:

The operation of r 20.26 is therefore uncontroversial in this instance. This is not a case where it was an assessment of the quantum of any offer that informed reasonability. In this instance the plaintiff has been wholly unsuccessful. Any offer was better than none.

Further, had there been a true problem with the plaintiff understanding the particularity of the defence being advanced by the defendant at the time of either offer, then notice could have been given pursuant to r 20.26(4) of the UCPR for such matters to be attended to. The plaintiff provided no such notice. It is too late to make such complaint now.

Remarkably, the plaintiff seeks the extraordinary order that his legal costs be paid by the defendant on an ordinary basis up to 1 September 2021, being the date that the defendant admitted breach of its duty of care. He does so without reference to any offer he made, or any proper articulation of disentitling conduct that would ordinarily permit of such an order: see for example Oshlack v Richmond River Council [1998] HCA 11; (1999) 193 CLR 72. It is also a costs order sought without distinguishing what costs at that stage were referrable to questions of liability (i.e. likely none) and those referrable to causation and quantum (i.e. all).

Setting aside the fact that that the plaintiff clearly incurred costs in relation to elements of his case beyond the investigation of the breach issue prior to 1 September 2021, such an award does not accord with guiding principles of sections 56–60 of the Civil Procedure Act 2005 (NSW) as it would disincentivise any defendant from making appropriate concessions throughout the life of the litigation. By admitting that it breached its duty of care to the plaintiff, the defendant narrowed the scope of the issues in dispute and acted in accordance with its duty to assist the Court to further the overing purpose of section 56 of the Civil Procedure Act 2005 (NSW).

The plaintiff raises several complaints in respect of the defendant’s conduct relating to the production of documents sought under subpoena. The plaintiff complains that he incurred the costs of enforcing compliance with that subpoena. However, the defendant, who has ultimately been successful in the proceedings, was put to significant expense by the plaintiff’s tactical decisions to issue subpoenas in a matter in which he was ultimately unsuccessful.

The plaintiff submitted that he and his solicitors did not have the benefit of reviewing the CCTV footage until produced by the defendant to the court by the defendant on 2 March 2021. In doing so, the plaintiff acknowledged that he had reviewed the CCTV footage prior to the defendant’s first offer of compromise dated 24 June 2021.

Even after receiving and reviewing the CCTV footage, the plaintiff continued to provide inaccurate and favourable versions of the subject accident to his solicitors and various medicolegal experts. The review of the CCTV some two years prior to hearing made no difference to the plaintiff’s conduct of his case.

The plaintiff submitted that he was required to commence his case to obtain the CCTV. First, why it was needed by him when he was actually there is not explained. Second, there is no explanation for how it would have changed anything, given it clearly did not after it was reviewed. But third, there is a whole part of the UCPR dedicated to requiring such production, Part 5 (preliminary discovery). Elections the plaintiff made in the litigation are not matters for the defendant.

The defendant therefore continues to request the costs orders sought in the defendant’s submissions dated 27 November 2023 and submitted there is no juristic ground for the otherwise order as sought.

I do not accept the plaintiff’s criticism of the defendant’s conduct in its preparation for trial. It is an unusual course of action to issue a subpoena before the defendant has filed a defence. This is because the issues in dispute had not been defined.

On 1 and 2 March 2021, the defendant provided the CCTV of the cruise incident. This was prior to either of the defendant’s offers of compromise. It demonstrated that the plaintiff’s version of the incident was incorrect. The plaintiff has always been aware of the bathroom incident at the Trios Sports Club, but his memory of the actual circumstances as to how the bathroom incident occurred is hazy to say the least.

The plaintiff made a surprising submission that each party should pay their own costs up until 1 September 2021, being the date that the defendant admitted breach of duty of care. I disagree. It is my view that the normal rule should apply. As the defendant succeeded in the proceedings, the plaintiff should pay the defendant’s costs on an ordinary basis.

The defendant’s first offer of compromise dated 24 June 2021 that the plaintiff’s claim is to be dismissed with each party paying their own costs can be considered a compromise. At the time the first offer was made, the plaintiff’s solicitors had received and viewed the CCTV of the cruise incident. The plaintiff’s solicitors should have become aware that the plaintiff’s version of events was not borne out by what was shown in the CCTV footage. The plaintiff had largely given an inaccurate description of how he sustained his alleged injuries. The defendant only served the medical reports as to the plaintiff’s physical injuries on 6 July 2022 and 23 December 2022 with the leave of the Court. However, the timetable directed that the defendant was to serve its medical evidence by 11 March 2022. It was only when the orthopaedic reports were served that the plaintiff and his solicitors would have become aware that causation was highly contested.

As to the second offer of compromise dated 19 April 2022, the defendant offered to resolve the entirety of the plaintiff’s claim based on judgment for the plaintiff in the sum of $80,000, but it was silent as to costs. I accept that the plaintiff’s solicitors were aware of the plaintiff’s inaccurate evidence as to causation in the cruise incident and somewhat hazy evidence of the bathroom incident.

At the time of service of both offers of compromise, the defendant should have served its medical evidence by 11 March 2022, it had only served a psychiatric report of Dr Samuell, albeit a few days late. At the time that the offers of compromise were made, the plaintiff had no medico-legal evidence from the defendant as to causation. It was not unreasonable for the plaintiff not to accept the defendant’s offers of compromise. In these circumstances, the plaintiff is not liable to pay the defendant’s costs on an indemnity basis.

Costs normally follow the event. In my view, the plaintiff is to pay the defendant’s costs on an ordinary basis.