Although not a medical treatment claim, Binge-Grose v State of New South Wales [2017] NSWSC 388 is of interest for its consideration of indemnity costs orders sought by plaintiff following a defendant’s admission of liability.

The plaintiff had claimed damages against the State for injuries alleged to have been sustained by the plaintiff when she was in the care of her foster parents. The plaintiff alleged that the defendant was negligent, both in permitting her to be placed with persons whom it ought to have known were unsuitable foster parents; and in failing to monitor her while she was in their care: [2].

The claim for indemnity costs was made on various bases including that the defendant ought to have admitted liability considerably earlier than it did and, had it done so, substantial costs would have been saved and that the defendant’s delay in making appropriate admissions on the pleadings caused the plaintiff to incur substantial additional costs, and put the defendant in breach of its Model Litigant Policy: [4].

The Court was not critical of the conduct of the claim by the defendant and held that there had been no departure from the Model Litigant Policy: [71], [77], [85], [88].

The Court also commented at [90]:

The basis on which an order for costs is ordered to be paid (ordinary, or indemnity) is largely determined by the defendant’s conduct. It is not determined by the plaintiff’s needs or circumstances. Any successful plaintiff can expect to have to pay any difference between the amount required to be paid to legal representatives and the amount recovered from the defendant pay way of costs (subject to being in a better position as a result of a Calderbank offer or Offer of Compromise).

 

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