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

Was this article helpful?
people found this article useful

Get in touch with us

Online Now

Welcome to Carter Capner Law! I'm here to assist with enquiries and gather details. How can I help today?