Written by Peter Carter

July 24, 2011

The Supreme Court on Friday ordered that a “stoic” plaintiff awarded $200,000 for the death of her 66-year-old workaholic husband should also recover indemnity costs after beating her earlier open offer to accept half that sum.
A month previously, Applegarth J had assessed the plaintiff’s dependency loss as a result of her farmer husband’s death – related to their joint conduct of a small crop and livestock farm near Gatton – at $530,000.

Having been told about the tragedy when police came out to the farm and then visiting the hospital and morgue to identify the body, she sustained a psychological “nervous shock” injury resulting in depression, overwork and letting her house –  which he only comes back to after dark every night following a hard day of farm work –  deteriorate. She was awarded a modest $13,000 for these insults.

The dependency loss – the deceased had toiled relentlessly with his heavy farm duties – was reduced by 65% on account of the contributory negligence finding by reason of his entry on to Horse Trough Bridge on the Gatton-Clifton Road contrary to a Give Way sign.

Suncorp – represented by Bray Lawyers – had contended in written submissions that the plaintiff should not be allowed indemnity costs. It argued for a different order by pointing to the plaintiff’s mandatory final offer made under the Motor Accident Insurance Act to which, pursuant to s 51C(10), the Court “must have regard” in making a decision about costs.

That offer was $300,000 plus standard costs but the plaintiff subsequently made a further UCPR offer to settle – three months before the start of the two-day trial – at $100,000.

Suncorp submitted that the mandatory final offer was “grossly excessive and properly rejected” and could not have been a “genuine offer to settle the claim pursuant to the pre-litigation requirements of the Act”.

His honour rejected that argument and awarded indemnity costs to the plaintiff.

Schimke v Clements & Suncorp Metway Insurance Ltd [2011] QSC 182 Applegarth J 22/06/2011

Schimke v Clements & Suncorp Metway Insurance Ltd (No 2) [2011] QSC 208 Applegarth J 22/07/2011

Categories: Personal Injury , Litigation & Law Practice

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