Poor state of court reporting

I have often been dismayed about the inaccuracy of newspaper reports of court proceedings.  However, it is quite some time since I have come across one as inaccurate as this.  It pays to read the article first, before continuing with the discussion below: Lawyers argue over cost of bullying.

First, some background.

The proceedings involved a claim for damages for personal injury (consisting of psychiatric injury manifesting itself in anxiety and depression) arising from bullying and harassment at a private secondary college.  The allegation of negligence, in essence, was that the college did not implement its own system to bring an end to ongoing bullying of which it was aware, and to monitor the victim to ensure that it did not continue.  In April 2011 Justice Schmidt delivered her judgment, in which her Honour:

• found the college liable in negligence for the psychiatric injury sustained by the plaintiff
• found the plaintiff's injury to be 20% of a worst-case (the plaintiff claimed it was 40%)
• upheld only part of the plaintiff's claim for past economic loss
• awarded a "buffer" of $50,000 for future economic loss ($200,000 had been claimed)
• rejected a claim of $30,000 for domestic assistance
• rejected substantial parts of the claim for future treatment ($39,000 had been claimed)

As is often the case, her Honour directed the parties to bring in short minutes of order in which the conclusions in relation to damages would be quantified with a judgment entered in the plaintiff's favour for the total amount, and granted liberty to apply for orders in relation to costs other than the usual order (that costs follow the event).

And so, when the matter came before the Court again on 24 June 2011, it was for the purposes of making an order for the judgment amount (otherwise agreed between the parties based upon her Honour's earlier judgment) and to argue costs - the defendant seeking a special costs order as a result of the plaintiff having rejected an offer of compromise for an amount greater than the amount for which judgment was to be entered.

The statements in the article that "it is impossible" to assess, or put a price on etc are in the wrong tense.  What counsel for the plaintiff was saying is not that it "is" impossible to do so (for that is precisely what Schmidt had done in her April 2011 judgment) but that at the time at which the plaintiff was considering the offer of compromise it was impossible to do so.  The wrong tense betrays an ignorance of what the proceedings were about, and an ignorance of what had been decided in April 2011.

Similarly, by the time the case comes back before the Court on 24 June, the plaintiff is not "seeking damages of $539,784".  That's the amount she was seeking and which amount was clearly and obviously rejected by virtue of the reasons delivered in April 2011. 

One starts to get a sense of what the hearing was really about as the article progresses, but only if you have some knowledge and awareness of the law relating to the awarding of costs, and in particular costs on an indemnity basis.  If you know that if a plaintiff does not do better than an offer of compromise served by a defendant the onus may shift to the plaintiff to demonstrate why the rejection of the offer was not unreasonable to avoid paying indemnity costs, then you can make some sense of the article.  But I suspect most lay readers of the article do not know that principle, and so it is unlikely the article conveys the same meaning, and will either be confusing or positively misleading.

Regrettably, the article returns to form in the final paragraph.  Justice Schmidt is not expected to make a decision next month on how much damages the plaintiff will receive.  She is expected to enter judgment for those damages based upon calculations agreed by the parties (so there is no decision for her Honour to now make).  And she will make a decision on who should pay what part of the costs of the proceedings, and on what basis. 

You wouldn't know that from reading the article.