John Michael James Bray

This is a costs decision following a personal injury trial where the jury found the Abitong defendants 5% liable and awarded general damages of $10,000 to the main plaintiff.

After applying the statutory deductible, the plaintiffs received no recovery.

The Abitong defendants sought costs, having made an offer to settle by dismissal without costs.

The court awarded the Abitong defendants $175,000 in all-inclusive costs on a partial indemnity basis.

The court considered factors under Rule 57, including the result achieved, complexity, and proportionality.

It addressed the plaintiffs' objections regarding trial length due to defence counsel's conduct, excessive time claims, high disbursements, and the use of in-house counsel, affirming that costs for salaried counsel should be assessed as if independent outside counsel were retained.

During a trial, the plaintiffs sought a mid-trial ruling to prevent the defendants from asserting the defence of inevitable or unavoidable accident, arguing it was not specifically pleaded as required by Rule 25.07(4) of the Rules of Civil Procedure.

The court ruled that a general denial of negligence in the statement of defence was sufficient to allow the defendants to raise the unavoidable accident defence, as there was no material difference in the legal test or onus, and the pleadings provided adequate notice to the plaintiffs.