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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Quantum of Damages - damages for past loss - contingencies interest on past component of general damages - past care - interest payable for past voluntary services - whether cost of travel to pursue medical treatment is a past component of general damages - the test for determining whether the cost to pursue treatment and the associated expenditure is an allowable expense - future component of general damages - allowance for future funds management - calculation of allowance.
Costs - costs of successful defendants - Sanderson order - Bullock order - whether order made against the plaintiff or the successful defendant - whether the plaintiff acted reasonably in joining all defendants - whether conduct of the unsuccessful defendant justifies making of a Bullock order.
Indemnity Costs - 'Calderbank' letters - plaintiff's offer of settlement - principles leading to an order for indemnity costs - an unsuccessful defendant's unreasonable rejection of a plaintiff's offer of settlement.
Practice & Procedure - application for leave to amend notice of motion for contribution - whether the amendment would effectively reopen the case - whether a successful defendant can be liable to an unsuccessful defendant for contribution.
Contract - Trade Practices Act 1974 s52 - false or misleading advertising - Trade Practices Act 1974 s82(2) - statutory limitation on claim.
Luntz, Australian Life Tables Australian Capital Territory Supreme Court Act 1933 (Cth), s53A Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s11(4) Trade Practices Act 1974, ss52, 82 Limitation Act 1985 (ACT), s21
Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 Wyld v Bertram [1970] 8 SASR 1 O'Shea v Sullivan [1994] Aust Torts Reports para 81-273 Sullivan v Micallef [1994] Aust Torts Reports para 81-308 Broadribb v Hanna [1969] 1 NSWLR 35 Koeck v Persic, unreported, ACT Supreme Court, Miles CJ, Gallop and Foster JJ, 26 March 1996 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 Burnicle v Cutelli [1982] 2 NSWLR 26 Settree v Roberts [1982] 1 NSWLR 649 Marsland v Andjelic (No. 2) (1993) 32 NSWLR 649 Arvind & Anor v Greco [1995] Aust Torts Reports para 81-357 Whittaker v Commissioner of Taxation [1996] Aust Torts Reports para 81-400 Edwards v ACT Schools Authority, unreported, ACT Supreme Court, Hogan M, 16 March 1993 Kostik v Giannakopoulos [1989] Aust Torts Reports para 80-274 (SASC) Harris v Briggs [1994] Aust Torts Reports para 81-301 (QSC) Harris v Northern Sandblasting Pty Ltd, (1995) Aust Torts Reports para 81-365 Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665 Nominal Defendant v Gardikiotis (1996) 136 ALR 1 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Bullock v London General Omnibus Co [1907] 1 KB 264 Calderbank v Calderbank [1976] Fam 93 Colgate-Palmolive v Cussons (1993) 118 ALR 248 Quirk v Bawden [1992] ACTSC 118; (1992) 111 FLR 115 Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) ATPR 52,735 Gould v Vaggelas (1984) 58 ALJR 560 Steppke v National Capital Development Commission(1978) 21 ACTR 23 Besterman v British Motor Cab Co Ltd [1914] 3KB 181 Lackersteen v Jones & Ors (No. 2) (1988) 93 FLR 442 Neilson v Costalos [1939] SASR 147 Altamura v Victorian Railways Commissioners [1974] VR 33 George Wimpey & Co v British Overseas Airways Corporation [1955] AC 169 Oceanic Crest Shipping Co v Pilbarra Harbour Services (1985-1986)160 CLR 626 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Western Australia v Wardley Australia Limited & Ors (1991) 30 FCR 245 Arcadi & Anor v Colonial Mutual Life Assurance Society Ltd & Anor [1984] ATPR para 40-473 Vink v Schering Pty Ltd & Ors [1991] ATPR para 41-064 Calmao Pty Ltd v Stradbroke Waters Co-owners Co-op Society Ltd (1989) 21 FCR 28
HEARING
CANBERRA, 18 December 1996 17:1:1997
Counsel for the Plaintiff: Mr B Donovan QC
Instructing solicitors: Cashman & Partners
Counsel for the First Defendant: Mr P M Jacobson QC with Mr A R Harris
Instructing solicitors: Fisher Jeffries
Counsel for the Third Defendant: Mr P Garling SC
Instructing solicitors: Blake Dawson Waldron
Counsel for the Fourth and Mr P Donohoe QC with Fifth Defendants: Ms P Burton
Instructing solicitors: ACT Government Solicitor
ORDER
THE COURT ORDERS THAT:DECISION
HIGGINS JGeneral Assumptions for assessment of damages . Loss of expectation of life 2. It was submitted to me that the parties had agreed that damages should be assessed on the assumption that the plaintiff's expectation of life be regarded as shortened to age 60. This results in an allowance for 'lost years' being made on the basis of 12 years rather than the five I considered the evidence would otherwise have justified. I make the allowance accordingly. It will reduce some heads of damage but increase that for the loss of expectation of life. The sum to be awarded for that latter head of damage is necessarily discretionary but it is not merely a pro rata correlation between the sum appropriate for a five year loss and that for a 12 year loss. I accept, however, that it is wholly improbable that this plaintiff will suffer any realisation of this loss. I bear in mind that the level of the award should be moderate and does not diminish general damages, see Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, Wyld v Bertram [1970] 8 SASR 1.
3. Further, there is to be an award for earnings foregone during those lost years, although probable living expenses necessary to achieve those earnings should be deducted from those earnings, see O'Shea v Sullivan [1994] Aust Torts Reports para 81-273, affd sub nom Sullivan v Micallef [1994] Aust Torts Reports para 81-308. It was conceded that 50% was an appropriate allowance for living expenses.
. Contingencies 4. Given the agreement between the parties as to loss of expectation of life, there must be a consequential reduction in the calculation of the undiscounted quantum of various heads of damage. However, it is necessary to reconsider the level of discount to be applied thereto to take account of the "vicissitudes of life".
5. Mr Garling SC, for the third defendant, contends that the conventional reduction of 15% should be applied notwithstanding the reduced life expectancy assumed. Mr Donovan QC, for the plaintiff, contends that no reduction should be applied.
6. In essence, Mr Donovan QC says, the agreement as to reduction of life expectancy, renders any further reduction for contingencies otiose. For what it is worth, the assumption of further reduction of expectation of life from 67 years which could be found on the evidence to 60 years as agreed, represents a reduction of between 11 and 12%. Against the normal expectation of life it would be a 17-18% reduction, see Luntz, Australian Life Tables.
7. On the facts as I have found them to be, but for the injury sustained by the plaintiff, no more or less than the average contingencies of life could be assumed. Those contingencies may broadly be categorised as premature death, sickness, accident or unemployment otherwise arising, see, for example, Broadribb v Hanna [1969] 1 NSWLR 35. However, favourable contingencies should not be ignored.
8. Recently, in Koeck v Persic, unreported, ACT Supreme Court, Miles CJ, Gallop and Foster JJ, 26 March 1996, Miles CJ considered the scope of the discount for contingencies. His Honour said, at 11, Logically, vicissitudes should also include the possibility of increases in earning capacity by way of such factors as promotion, general economic prosperity and the like. These are somewhat elusive and speculative matters. As a matter of thumb, a figure of 15 per cent is usually applied by way of reduction of the arithmetical calculation of the present value of future periodic loss, see Burnicle v Cutelli [1982] 2 NSWLR 26, Moran v McMahon [1985] 3 NSWLR 700. The reduction by such an amount is regarded as applicable to the "ordinary" vicissitudes, but there is nothing sacrosanct about that percentage and the calculation of the loss may be reduced or increased as it commonly is, having regard to the particular circumstances of the case, see Djapa v Comalco Aluminium Ltd (NSWCA; 3/7/87; no. CA 64 of 1986).
9. As a matter of logic, his Honour noted, such a consideration would be appropriate not only for calculation of future earnings but also in considering any aspect of damages where there has been an appreciable time between the injury and the hearing or end of working life or of life as the case may be.
10. In the present case, there is force in Mr Donovan's submission that the contingency of early death has already been acknowledged and allowed for. Thus it would unduly favour the third defendant to allow fully the usual percentage reduction. Indeed, Mr Garling SC acknowledged as much. Other unfavourable contingencies will usually impact differently on, say, future earning capacity as opposed to future additional medical and whole of life costs. Contingencies which might reduce earning capacity would not necessarily impact on the need for future medical and other expenses.
11. The assumption agreed between the parties removes the unfavourable contingency which otherwise would follow from the chance of death but for the injury between age 60 and age 72. It does not remove the contingency of death before age 60, but the impact of that contingency is very much reduced.
12. Taking account as best I can of these various considerations, it seems to me that only a 5% reduction should be applied to calculations terminating at age 60, the assumed end of life. That does not apply to calculations relating to earning capacity beyond that age. Although the plaintiff is assumed to have a life expectancy to age 60 only, there is an allowance to be made for earnings for the "lost years". That is subject to the usual contingencies.
Interest on damages 13. No issue is raised as to interest allowed on the past component of general damages. I do not believe that the altered assumptions as to expectation of life requires this figure to be adjusted. Nor was it disputed that interest was payable at the usual pre-judgment commercial rate for sums actually expended by or for the plaintiff. Save that, of course, credit in respect of past interest will be allowed upon monies received by way of pension or other benefits previously paid to or for the plaintiff.
14. An issue was raised as to whether an allowance for interest should be made in respect of the sum allowed for past care assessed in accordance with Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 and Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.
15. In Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 a claim for interest on the sum to be allowed for past care was rejected. It was rejected on two bases. First and most fundamental was that no such claim was made. The writ predated the insertion into the Australian Capital Territory Supreme Court Act 1933 (Cth) of s53A which, for the first time in the Territory empowered the Court, generally, to award pre-judgment interest.
16. The second was, as Kirby J (Gallop and Morling JJ concurring) expressed it at 381-2, It now seems clear that interest is not payable on the component of the verdict calculated under this head of damages [that is Griffiths v Kerkemeyer (supra)]. Glass JA [in Burnicle v Cutelli [1982] 2 NSWLR 26 at 30] has explained this rule on the ground that the plaintiff, not being out of pocket, cannot claim interest any more than he could claim such interest on unpaid medical accounts.
17. However, the New South Wales Court of Appeal has recently declined to follow both Burnicle v Cutelli [1982] 2 NSWLR 26 and the predecessor of that decision, Settree v Roberts [1982] 1 NSWLR 649.
18. In that decision, Marsland v Andjelic (No. 2) (1993) 32 NSWLR 649, Kirby P (as he then was) in a joint judgment with Meagher JA, completely recanted the opinion which he had expressed in Hodges v Frost (supra), 381-2.
19. Their Honours, at 653-4 said, If the plaintiff is to be enabled to reimburse, in full, the provider of services which have an economic value to the plaintiff, then interest computed in the ordinary way must be allowed on the amount awarded. The distinction from medical (and other) out-of-pockets is readily drawn. The cost, the sum to be paid to a medical practitioner, is fixed at the time the services were provided. It does not increase with time. However, in respect of voluntary domestic services, if, as the High Court mandates, compensation is to be given at full commercial rates then payment to the provider of the services, if it is to be made, would be made at present rates and not at the rate which prevailed when the service was provided. Compensation is, however, usually awarded at the commercial rate. Logically therefore, the plaintiff, in respect of past voluntary services, should be entitled to either (a) compensation at the rate prevailing when the service was provided, together with interest in full from the time of provision whether the service was paid for or not; or (b) such compensation at the present gross cost of each service, whether paid for or not.
20. It is, of course, difficult logically to justify an award to enable a non-binding liability to be paid for at current rates whenever incurred, whereas a legally binding liability, say for medical expenses, which the service provider has generously left in abeyance until the plaintiff is in funds, should be paid for only at the nominal value without compensation, even if morally justifiable only, for interest foregone as a result of that forbearance. The basis for allowing a sum for past voluntary care is the moral obligation cast on the plaintiff to compensate the voluntary carers. The same logic would apply to the difference between paid care at subsidised rates and the full commercial value thereof. Nevertheless, the reasoning in Marsland v Andjelic (supra) would forbid an allowance of interest on legally enforceable unpaid past expenses but require it for the sum allowed for past voluntary services for which only a moral obligation to pay exists.
21. More recently, in Arvind & Anor v Greco [1995] Aust Torts Reports para 81-357, the New South Wales Court of Appeal confirmed that interest on the sum to be allowed for past voluntary services was payable at full commercial rates on the liability notionally incurred from time to time as the need for care had been experienced and met.
22. It seems to me that the recent considered opinion, stated and restated, of the New South Wales Court of Appeal must be preferred to an obiter dictum, since recanted, expressed in the Federal Court in 1984.
23. Further support for the view that interest should, generally, be allowed at full commercial rates, is, as was held in Whittaker v Commissioner of Taxation [1996] Aust Torts Reports para 81-400, that such awards of interest are to be treated as income for taxation purposes.
24. I am aware that Master Hogan, as he then was, considered himself bound to follow Hodges v Frost holding, as a result, that interest was not payable on the past component of a van Gervan v Fenton (supra) award. That was the Master's view as expressed in Edwards v ACT Schools Authority, unreported, ACT Supreme Court, Hogan M, 16 March 1993. For the reasons I have noted, the Master was in error in considering himself so bound. The only authorities otherwise relied on by the Master were those overruled by Marsland v Andjelic (No. 2) (supra).
25. therefore, decline to follow the Master's decision in Edwards (supra).
26. Whilst I confess that the distinction lacks logical appeal, I consider that I should allow interest at full commercial rates on the past care component of the damages, to date of trial. However, I do not consider myself at liberty to award interest on past out-of-pocket expenses save insofar as the same have been paid and then from the date of such payment, absent a legally enforceable obligation to pay interest to such a creditor. The rate to be allowed is the full commercial rate as applicable from time to time. It is not, however, necessary to award such interest by reference to precise calculations.
Other heads of damage 27. I now turn to particular issues. Generally, it is agreed that the future period should be assessed at 41 years. I apply a net figure for contingencies of 5% for the reasons already given. The adjusted figures I set out below.
Future tube feeding 28. The period is reduced from 48 to 41 years. The allowance for contingencies is reduced from 15% to 5%. The costs should therefore be assessed at $479,405.00. Normal feeding costs were already deducted.
Past tube feeding 29. I note that I omitted to award interest on this expense. As this allowance reflects actual expenditure, it is appropriate to award interest for approximately two years before hearing in the sum of $1,237.00.
Transport overseas 30. It was made clear to the plaintiff's parents that medical science, as far as Australian medical practitioners could advise them, was unable to reverse the plaintiff's brain injury. They could offer no significant prospect for improvement. Consistently with my impression of them as concerned parents, Mr and Mrs Lipovac took the plaintiff overseas to Croatia on two occasions. There were about 15 individual trips throughout Europe including a visit to Lourdes, the latter seeking miraculous intervention, the others sought conventional medical advice hoping that newer developments in Europe might be of assistance.
31. I indicated earlier that I did not regard those trips as being, from an objective viewpoint, likely to have benefited the plaintiff. However, I have now been persuaded that that is not the test for determining whether an allowance should be made on account thereof. The test, as explained in Kostik v Giannakopoulos [1989] Aust Torts Reports para 80-274 (SASC), is whether it was "reasonable" to pursue the prospect of such treatment and undertake the associated expenditure. Also persuasive is the recent case of Harris v Briggs [1994] Aust Torts Reports para 81-301 (QSC) in which Derrington J allowed the costs of unorthodox and, ultimately, futile treatment.
32. The test his Honour applied was expressed in the following terms at 61,721, These [costs] were incurred in relation to investigation of the plaintiff and instruction to her mother as to future treatment by the Brain Therapy Centre, an organisation with unorthodox ideas. Its offer of hope was attractive to the vulnerable parents of a child so badly disabled. It was not palpably bogus and there was no discouragement at a responsible level of medical advice available to them. It was only when competent medical advice discountenanced the continuation of the treatment that its justification ceased. While as it turned out none of this treatment was beneficial to the plaintiff, it was reasonable, taking into account the severity of her injury, to pursue possible means of amelioration such as this. Had it been successful, its benefit to the plaintiff would have been substantial, and so far as the plaintiff's parents were concerned, it was not so devoid of credibility that it was unreasonable to pursue it. On the contrary, it is understandable that they did so.
33. On that basis, the expenses were allowed.
34. The decision in that case, sub nom Harris v Northern Sandblasting Pty Ltd, was reviewed by the Queensland Court of Appeal, see (1995) Aust Torts Reports para 81-365. Whilst the appeal was allowed, the grounds of appeal considered did not call into question the test applied by Derrington J at first instance in relation to the allowance of the expense of the treatment referred to.
35. There are two trips in question in this case. The first was in 1982, the second in 1988. There was no challenge to the reasonableness of the expenses themselves, due allowance for non- treatment purposes being made. The expenses were directed to seeking amelioration of the plaintiff's condition. In 1982, one trip, costing, after allowances, $2,460.00, was to Lourdes. I understand that the parents' religious beliefs would have made that trip seem reasonable but I do not believe that any medical practitioner would have considered this an option worth trying. Nevertheless, the other consultations and trips were medical in nature and I have no evidence that they were considered hopeless by competent Australian medical advisers.
36. At the time, 1982, the cause of the plaintiff's disabilities was not entirely clear. The extent of them could be judged only from the exhibition of symptoms. Given the correctness of the diagnosis of brain damage, it was, objectively, unlikely that European doctors would be able to do better than Australian doctors had. However, in Derrington J's words, I am persuaded that the hope of more advanced and beneficial treatment was not "palpably bogus" and it was not "discouraged" by responsible authorities, albeit there is no evidence that there was any encouragement sought or given by such authorities. Allowing deletion of the trip unassociated with seeking medical treatment, the sum of $11,950.00 is allowable plus interest of $10,780.00, a total of $22,730.00.
37. The trip in 1988 was similar, save that it embraced only medical consultations. There was no religious component. It certainly could be said that, the 1982 trip having produced no beneficial result, it was unlikely that the 1988 trip would do so. Nevertheless, given the lack of any challenge to the evidence of the plaintiff's parents, or to the methodology of the calculation of the added expense, I am persuaded that the additional expenses of this trip over and above a family holiday component should be allowed so far as they are referable to that purpose. That expense was $7,865.00 plus interest of $3,500.00, making a total of $11,365.00. It was not unreasonable to suppose that, after six years, some advances in medical science may have occurred in Europe.
38. I would allow that sum also.
Social Security and Disability pension payments 39. These sums may be refundable to the government. Had the plaintiff been employed they would have been regarded as prepayments of past earnings loss, thus attracting a credit against interest otherwise to be awarded. To that figure would need to be added pension receipts up to 13 September 1996, when, but for the need to revise these calculations, judgment would have been entered.
40. I would allow a credit to the defendant against the sums to be awarded for interest reflecting proir receipt of those payments. That figure I allow at $98,660.
Respite Care 41. The payments made in the past for this are included within the allowance made for past care but those expenses, of $13,680.00, to November 1994, would be deductible from the third defendant's liability for interest thereon, as with other past care expenses paid for by government and non-government agencies. Future Vitamin Costs The allowance of $5.00 per week is not disputed. After contingencies, I allow $5,590.00 Future Medical expenses The allowance of $12.00 is not disputed. After contingencies, I allow $14,135.00 Future hospital expenses I allowed $25,000.00, adjusting for the revised whole of life expense assumptions, I allow $28,025.00 Future Transport - Medical The allowance of $2.00 per week is not disputed. After contingencies, I allow $2,355.00 Future Transport - Generally The allowance of $35.00 per week is not disputed. After contingencies, I allow $41,225.00 Future drugs The allowance of $70.00 per week is not disputed. After contingencies, I allow $82,445.00 Future Medical The allowance of $27.79 per week is not disputed. After contingencies, I allow $32,735.00 Future care This was allowed on a 24 hour home care basis. The weekly expense to be allowed would be $3,456.63. The total to be allowed after contingencies is $4,071,670.00
42. Other Items requiring adjustments are - Loss of earning capacity Future earnings are assessed for reasons already given at average weekly earnings. The sum of $519.75 net of tax is not disputed. Loss of employer funded superannuation benefits is net $20.72 per week. The figures to be allowed to age 60 less 5% reduction for additional unfavourable contingencies than already assumed results in $612,265.00 Superannuation $24,405.00 Household renovations It is reasonable to allow for future modifications to any house the plaintiff is able to purchase. The claim is for - Conversion costs $237,965.00 Air-conditioning $ 15,862.00 Maintenance and running costs $195,431.11 Professional fees and planning approval $ 19,995.00 $469,253.11
43. My impression was that these figures were somewhat high but neither they, nor the evidence on which they have been based, has been the subject of dispute. In round figures, I allow $469,250.00.
Loss of expectation of life 44. The assumption is now 12 years instead of five years. The plaintiff claimed $7,000.00 on that basis. That, though a little less than I would have otherwise allowed, seems reasonable. I allow $7,000.00.
45. There is also an allowance for earnings foregone in the "lost years". That, it is agreed, would be 50% of the remaining five years of working life foregone, including the superannuation component that results in an allowance of $56,000.00 ($65,665.00 discounted by 15%).
Future Funds Management 46. There is a need, given the size of the verdict and the state of the plaintiff's health and mental capacity, to make an allowance for the professional management of the fund represented by this verdict.
47. The calculation of that allowance should, I consider, accord with the principles adopted by the New South Wales Court of Appeal, in Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665. The High Court has recently added its authority to those principles in Nominal Defendant v Gardikiotis (1996) 136 ALR 1. In this case, there is no question but that the plaintiff's inability to manage his own financial affairs has resulted from the third defendant's negligence.
48. It is not merely the award of a large verdict which, in this case, creates that need. Thus, as McHugh J confirmed in Gardikiotis (supra), at 7, there is no call for a deduction from the true cost of fund management for some "allowance" for fees which may have been incurred had the plaintiff retained a capacity for financial management unimpaired by the consequences of his tortious injury but received a large verdict.
49. The method of calculation used in Rosniak (supra) was not in issue in Gardikiotis. No exception was expressed to it in the course of the general approval of Rosniak.
50. Kirby P (as he then was), in Rosniak, noted that there had been an order that the Protective Commissioner (equivalent to this Territory's Public Trustee for relevant purposes) should manage the plaintiff's funds. It is necessary first to calculate the sum available for investment. Items such as allowances for home modifications would probably be expended soon after the verdict is received and so not require management. If any "establishment fee" is required, it should be allowed in full, Kirby P at 676. The annual fees must be capitalised and allowed as a lump sum. Contingencies and the tax deductibility of the fees must be allowed for. The general impact of those allowances has been applied already to other heads of damage, see also Meagher JA, 696-698.
51. It is assumed that the plaintiff will survive for 41 years. The current rate of return on investments by the Public Trustee is 7%pa. The Public Trustee will charge 1% as an establishment fee, 5% as an annual management fee and an annual audit fee of $27.00.
52. An alternative suggestion was utilisation of the Westpac fund management facility.
53. The difference may be illustrated this way. Assuming a $5m fund, Coopers & Lybrand calculate that to exhaust the fund after 40 years would incur fees requiring a present lump sum allowance of $213,192.00. If CPI is taken into account, the figure would be $200,233.00. Coopers & Lybrand express the opinion that if the fund is managed as the plaintiff's expert actuarial report suggests, then the capital sum representing those fees might be as high as $262,985.00.
54. Towers Perrin calculate, however, that to use the private sector, exemplified by Westpac, would require an allowance of $432,000.00 (approximately).
55. Nevertheless, plaintiff's counsel submits that the latter course is to be preferred. It would result, they say, in a higher net annual return. The Public Trustee is obliged to follow a more conservative line and so the benefit to the plaintiff would be much less.
56. It should be observed that the allowances made for costs of future care, lost income and the like, have assumed a conservative rate of return on future investment of the monies. It is not for this court to dictate to the plaintiff's custodian or guardian how his funds will be managed, subject only to the general protective power of the court in approving the disposition of verdict monies in respect of a plaintiff suffering disability.
57. No methodology will be entirely satisfactory nor is mathematical precision possible. I find the result urged by the third defendant's submissions, using the Towers Perrin methodology, but taking account of tax deductibility of the fees, to be the most persuasive.
58. The sum to be allowed for the future management of the fund should be calculated as follows, Total Damages $7,583,768.55 Less Past expenses $607,680.00 Household renovations $469,250.00 $1,076,930.00 TOTAL - $6,506,838.55
59. The sample calculations were based on a fund of $5m. The above figure should be rounded down to that figure to allow for other items presumably subject to immediate payment, such as the past Griffiths v kerkemeyer allowance and interest thereon, and past medical and other expenses incurred or paid. I allow $250,000.00 for this item. Summary of Damages Awarded: General damages $300,000.00 . Interest thereon for past component 38,000.00 Past treatment (excluding overseas doctors' fees) - . Woden Valley Hospital $41,193.20 . Drug expenses to December 1995 9,062.25 Interest from 5 August 1977 on paid past expenses 11,828.00 . Vitamins and food supplements 4,800.00 Interest thereon 6,265.00 . Hospitalisation, Woden Valley Hospital (not paid) 41,452.00 . Specialists fees (paid) 3,200.00 Interest thereon 4,177.00 . Ambulance costs, as claimed (paid) 2,530.00 Interest thereon 3,302.00 . Tube feeding - Past @ over and above normal feeding costs from February 1994 to December 1995 27,716.00 Less normal feeding 8,840.00 18,876.00 Interest February 1994 - 1,237.00 . Future tube feeding @ $407.00 for 41 years (Less contingencies at 5%) 479,446.00 . Less allowance for normal feeding costs ($100.00 per week for 41 years discounted by 5%) 120,200.00 359,246.00 Transport - . For necessary medical treatment (not including overseas) around Canberra 2,473.10 Interest thereon 3,228.00 . For general purposes (no interest claimed) 3,640.00 . For Sydney (no interest claimed) 7,650.00 . Overseas - 1982 - $11,950 + interest of $10,780 22,730.00 - 1988 - $7,865 + interest of $3,500 11,365.00 Future Treatment - . Future vitamins etc @ $5.00 per week 5,590.00 . Future medical care @ $12.00 per week 14,135.00 . Future hospital 28,025.00 Future transport - . Medical @ $2.00 per week 2,355.00 . General @ $35.00 per week 41,225.00 Future drugs @ $70.00 per week 82,455.00 Future Medical - @ $27.79 per week 32,735.00 Griffiths v Kerkemeyer - . Past care for full-time carer at commercial rates 452,989.00 Interest on $428,749 allowing for respite care costs paid of $24,240 583,950.00 . Future care adjusted to life expectancy of 60 years less contingencies @ 5% 4,071,670.00 Loss of earning capacity(no past element) . Future to age 60 at average weekly earning less contingencies @ 5% 612,265.00 . Additional employer funded superannuation component less contingencies @ 5% 24,405.00 Loss of expectation of life - . 12 years assumed 7,000.00 . Net loss of earnings during "lost years" 56,000.00 Future household renovations 469,250.00 Fund Management fees 250,000.00 $7,630,303.55 Allowances paid to or for plaintiff . Child Disability Payments 1/1/78-28/5/92 15,597.60 . Invalid Pension 4/6/92-13/9/96 20,619.80 36,217.40 Interest thereon to 13/9/96 46,535.00 Credit for interest on sums received for disability and pension payments 46,535.00 NET TOTAL $7,583,768.55
60. That sum seems appropriate. I direct the entry of judgment accordingly.
Indemnity Costs - costs of successful defendants 61. It is not submitted that there should not be an order for costs in favour of the plaintiff against the third defendant. However, plaintiff's counsel submit that such an order should be on an indemnity basis.
62. The first, fourth and fifth defendants submit that there should be an order in their favour for costs and that it should be against the third defendant on the basis referred to in Sanderson v Blyth Theatre Co [1903] 2 KB 533 ("Sanderson order"). Alternatively, they contend the order made in their favour should be against the plaintiff but with a further order that the third defendant reimburse the plaintiff for those costs on the basis referred to in Bullock v London General Omnibus Co [1907] 1 KB 264 ("Bullock order").
63. It seems to me that, if the third defendant should bear the whole of the other party's costs in any event, a Sanderson order is more appropriate in this case.
64. The third defendant opposes the application by the plaintiff for indemnity costs and submits that the successful defendants, if awarded costs, should have those costs paid by the plaintiff.
. Indemnity Costs 65. The plaintiff's submissions are based on two offers made to the third defendant in "Calderbank" letters (a reference to an offer made on terms that its rejection will be used in any subsequent costs application, see Calderbank v Calderbank [1976] Fam 93). There was no acceptance of either of those offers, nor, indeed, any counter-offer. Each offer was, objectively, "reasonable", being less than 30% of the sum I have now awarded.
66. There was no lack of information supplied or available to the third defendant to enable his advisers to assess the likely result of the plaintiff's claim, if successful. They had, also, all relevant information necessary to assess the likelihood of liability been found in favour of the plaintiff against the third defendant.
67. Mr Garling SC submits, however, that those considerations, whilst enlivening a discretion to award indemnity costs, do not make it appropriate, without more, to order indemnity costs.
68. He points out that a respectable body of medical opinion would have considered Dr Black's prescription of aminophylline appropriate. Others would not. Thus, whilst some qualified persons would have regarded the unsupervised administration of the drug as carrying unwarranted risk, Mr Garling SC submits that Dr Black was entitled to consider that he had reasonable prospects for success.
69. He pointed, also, to Mrs Lipovac's inconsistency as to the time of administration of aminophylline. Had the seizure been immediate as some of her previous statements implied, Dr Black's case denying the seizure to have been aminophylline induced would have been much the stronger.
70. I note, however, against the latter consideration, that contemporary notes by both Dr Gavranic and hospital staff were against the "immediate reaction" hypothesis.
71. The third defendant also points to his participation in mediation between October 1994 and mid 1995 as indicative that his attitude was not one of "imprudent refusal of an offer to compromise", see Colgate- Palmolive v Cussons (1993) 118 ALR 248, 257 per Sheppard J.
72. Further, other defendants were involved. Nothing is known as to whether they, or any of them, unreasonably refused to offer a compromise in which the third defendant was prepared to participate.
73. As to the offer of 5 June 1995, it was submitted that, although the hypothetical liability of the third defendant was supported by Professor Beveridge's report, that report was not received until the day before the offer lapsed. Professor Hendeles denied the pharmacological conclusions relied on by Professor Beveridge.
74. Certainly, this is not a case where any defendant took up an obviously unsustainable position or made any insupportable allegations. Nevertheless, the plaintiff had offered a very significant compromise.
75. In Quirk v Bawden [1992] ACTSC 118; (1992) 111 FLR 115, this Court considered the principles, the application of which might lead to an order for indemnity costs being made against an unsuccessful defendant.
76. It was accepted that the fact that a plaintiff has gained more than was proposed in an unaccepted offer, even by a substantial amount, does not, of itself, lead to an order for costs on a basis more favourable than usual being made.
77. The basis for making such an order was expressed in that case at 119, in the following terms, It is plain enough that if a defendant unreasonably rejects an offer of settlement from the plaintiff, the only sanction to encourage serious consideration of such an offer, moral exhortations aside, is an award of costs on a more favourable than usual basis.
78. There is no requirement that there be "positive misconduct" on the part of the unsuccessful defendant, see Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) ATPR 52,735 per Morling J.
79. I expressed my belief, with the concurrence of Miles CJ and Gallop J in Quirk v Bawden (supra), 120, that, ... this Court should apply an appropriate costs sanction where a party has declined to accept or to make, as the case may be, a reasonable offer of settlement.
80. It is a sanction to be applied in the case of an unreasonable refusal to make or accept a reasonable offer of compromise.
81. In this case, there is no doubt that the plaintiff made a reasonable offer of compromise. No defendant either accepted it or made a counter-offer. The first, fourth and fifth defendants may or may not have been reasonable in so doing. That question does not arise.
82. Nevertheless, I have to find before ordering costs on a more favourable than usual basis, that the third defendant acted unreasonably or imprudently so that a costs sanction is appropriate. Then a question arises as to the extent of that costs sanction.
83. The burden of persuasion as to that proposition rests with the plaintiff. In some cases that persuasion may follow ineluctably from the refusal of or to make a reasonable offer. However, the issues in this case were far from clear and it is not clear to me that the plaintiff's offers of settlement, though reasonably made, were unreasonably or imprudently refused.
84. There will be an order that the third defendant pay the plaintiff's costs on the conventional party/party basis, to be taxed if not agreed.
. Costs of other defendants 85. The third defendant submits that the conduct of the other defendants should disentitle them from any order as to costs at all.
86. The argument advanced was that the first defendant was negligent but escaped liability due only to the fortuitous circumstance that causation was not established in the sense that Dr Black did not place reliance on the first defendant's product information. In any event, the third defendant submits that the lack of causation or reliance is irrelevant as against him.
87. As to the fourth and fifth defendants, the third defendant submits that they too were negligent in failing to ensure proper ventilation with oxygen in the ambulance.
88. Neither of these submissions is founded upon any case made by the plaintiff against the other three defendants.
89. Unless the third defendant is permitted to re-open his case against the other defendants, there is no basis, in my view, for refusing an order for costs in favour of the successful defendants. For reasons which follow, I propose to deny the third defendant that opportunity. There should, accordingly, be orders for costs in favour of the first, fourth and fifth defendants.
90. The only remaining question is whether that order should be against the plaintiff or the third defendant.
. Should the third defendant be subjected to a Sanderson order? 91. In Sanderson (supra) the principle upon which an unsuccessful defendant might be ordered to pay the costs of a successful defendant was, per Romer LJ, at 539, ... that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant.
92. That principle was intended to cover a situation where it is reasonable for a plaintiff to join each defendant. It is appropriate in the case of factual uncertainty as to whether a defendant so joined is liable, jointly or severally with the unsuccessful defendant, in respect of the same cause of action or a cause of action founded on the same facts.
93. Mr Garling SC submits that to justify the making of a Sanderson or Bullock order there must be more to make it just to do so than the reasonableness of joining the defendants in question. It must appear, he submitted, that the conduct of the third defendant contributed to that joinder. In any event, he contended, the making of such an order is precluded by the fact that the plaintiff sought to make out a separate and distinct case against each defendant.
94. Mr Donovan QC, however, contended that such an order should be made if it appears that it was reasonable for the plaintiff to have joined and sued all defendants and that there was a substantial and relevant connection between them. He disputed the proposition that it was necessary to show that the unsuccessful defendant had, by his conduct, caused or contributed to the plaintiff's decision to sue all defendants or that the existance of separate allegations by the plaintiff against the other defendants precluded such an order.
95. It is necessary, therefore, to consider more closely the principles governing the exercise of the undoubted discretion to make a Sanderson or Bullock order.
96. Gould v Vaggelas (1984) 58 ALJR 560 was a case where it was asserted by the respondents in their defence that the cause of the appellant's loss was reliance on negligent advice by their accountants rather than the respondents' misrepresentations. The accountants were joined but were sucessful.
97. That, per Gibbs CJ, Murphy, Wilson and Brennan JJ, warranted a Bullock order.
98. Gibbs CJ stated at 566, ... the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution.
99. Reference was made, with approval, to a similar statement of Blackburn CJ in this court in Steppke v National Capital Development Commission (1978) 21 ACTR 23, 30-1. That was a case involving alleged joint or several tort feasors and the cause of action was for damages for negligence causing personal injury.
100. Wilson J, with whom Murphy J concurred on this issue, agreed that a Bullock order was appropriate. That there was pleaded a separate and distinct cause of action against the accountants was not a disqualifying factor.
101. Brennan J, at 579, agreed in the result, expressing his reasons as follows, A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiffs' claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought.
102. The decision in Gould v Vaggelas (supra) is thus not consistent with Mr Garling SC's submission that the pleading of separate causes of action by the plaintiff against the other defendants precludes the making of a Bullock or Sanderson order.
103. However, neither is that decision consistent with the view that it is necessary for a Bullock or Sanderson order that the unsuccessful defendant should have sought to lay the blame for the injury upon the successful defendant. That is not to say that such conduct will not support the making of such an order, see Besterman v British Motor Cab Co Ltd [1914] 3KB 181.
104. Lackersteen v Jones & Ors (No. 2) (1988) 93 FLR 442 was also referred to in argument. In that case, the first and second defendants, employees of the third defendant, were found to have committed the torts of wrongful arrest, false imprisonment and assault. The case against the third defendant was based on vicarious liability only. The first and second defendants were found to have been acting outside of the scope of their employment. Thus the third defendant was not liable. A Sanderson order was made.
105. Asche CJ agreed that a "threshold question" was whether the plaintiff had acted reasonably in joining all defendants. I take that to mean all unsuccessful defendants.
106. It was, however, submitted that the plaintiff's case, if accepted in full, established that the first and second defendants were acting outside the scope of their employment. Asche CJ, however, accepted that it was reasonable to allow for the contingency that the court might find a version of the facts reasonably open to it which would have implicated the third defendant. It was, therefore, reasonable for the plaintiff to have joined the third defendant to be in a position to take advantage of that contingency if it was found.
107. Having reviewed the authorities, his Honour concluded, at 449, ... the following principles seem to be established before a judge can make a "Bullock" or "Sanderson" order. 1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant. 2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependant the one or the other. 3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion. 4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful.
108. The first and second defendants were found liable to have a Sanderson order made on the basis that, conditions 1 and 2 being satisfied, the third was satisfied by the nature of the issues raised by the pleadings. Whilst the first and second defendants denied any wrong-doing, it was open to the court to find wrong-doing in the scope of their employment and they had, recognising that contingency, sought contribution from the third defendant.
109. In so doing, his Honour doubted that those principles, particularly #3, had been correctly applied in Neilson v Costalos [1939] SASR 147 where, though a husband had falsely registered a vehicle in his wife's name, no Bullock order was made in respect of her costs in an action for damages arising out of the use of the vehicle.
110. I note that in Altamura v Victorian Railways Commissioners [1974] VR 33, Kaye J considered it sufficient to warrant a Bullock order that it was reasonable for the plaintiff to be in doubt as to which of the defendants would be found liable to him. In that case, however, at trial, each defendant strove to inculpate the others. The latter conclusion, his Honour relied upon merely to supporthis conclusion as to the reasonableness of the plaintiff's decision to join the other defendants.
111. In my opinion, having regard to the decision of the High Court in Gould as further elucidated by Asche CJ in Lackersteen v Jones (supra), I cannot follow the view of Kaye J that it is sufficient for a Bullock or Sanderson order that the plaintiff's decision to join the unsuccessful defendants be seen as reasonable and proper in all the circumstances.
112. I must, therefore, reject Mr Donovan QC's submission that the third condition referred to by Asche CJ in Lackersteen v Jones does not need to be satisfied.
113. This was a case of considerable factual complexity. The cause of the plaintiff's disabilities might have been found to be a result of the administration of the aminophylline, or of the phenobarb, or of neither or both those drugs. It was possible that there could have been a finding that the cause of injury was a febrile fit unconnected with either of the drugs but insufficiently treated. The first defendant, by its product information, might or might not, assuming a link between the injury and the aminophylline, have induced, directly or indirectly, the prescription of it by Dr Black for unsupervised home administration. All those issues were alive until the evidence was complete and findings of fact made.
114. Each of the defendants sought contribution from each of the other defendants on the basis that the plaintiff's case against each of the others might be made out. Thus, for example, the first defendant adopted the allegation that the fourth and fifth defendants caused or contributed to the plaintiff's injury either by virtue of Dr Gavranic's treatment of the plaintiff or by the course of treatment at Royal Canberra Hospital.
115. In my view, it was clearly reasonable and proper for the plaintiff to have joined all defendants.
116. There is no doubt that the causes of action against each, whilst not relying on the same antecedent facts, do rely on the same general fact situation and seek to recover the same damages for the same injury.
117. The real issue is whether the unsuccessful defendant has by his conduct "in relation to" the matter made it "a proper exercise of discretion" to order costs on a Bullock or Sanderson basis in favour of the other defendants.
118. In relation to the first defendant, the third defendant persisted in a case that the first defendant had by reason of false and misleading product information rendered itself liable to contribute to the verdict. He also persisted, albeit after findings were made, in attempting to make a case that the fourth and fifth defendants were liable to contribute to that verdict either because Dr Gavranic failed to treat the seizure aggressively enough by insisting on positive oxygen ventilation, or in failing to accompany the plaintiff in the ambulance. He certainly adopted the plaintiff's allegations of negligence against the fourth and fifth defendants.
119. That conduct, as Lackersteen v Jones decides, would suffice to warrant a Bullock or Sanderson order being made.
120. Conduct in relation to the matter is not confined to conduct after action as the authorities cited make clear.
121. In denying any adverse role for the administration of aminophylline, as he did from the outset, the third defendant made it inevitable that the fourth and fifth defendants should be joined to allow for an alternative case that their negligence, rather than his, caused the injury.
122. In allowing for an alternative case, that Dr Black, as he asserted, acted reasonably in prescribing aminophylline, Dr Black made it inevitable that the first defendant should be joined to allow for another alternative case that its defective product information had caused or contributed to the opinion of at least that part of the body of medical opinion upon which Dr Black had in fact relied.
123. The fourth principle needs to be considered. It is a matter of balance but I consider the balance in this case overwhelmingly favours the making of a Sanderson order.
124. The third defendant is to pay the costs incurred in the action by the first, fourth and fifth defendants in defending the plaintiff's claim.
Leave to amend Contribution Notice against fourth and fifth defendants 125. Mr Garling SC applied, on notice, to amend the third defendant's Contribution Notice against the fourth and fifth defendants. He proposes to rely on an allegation that the fourth defendant negligently contributed to the plaintiff's injury because he failed to insist on oxygen ventilation throughout the ambulance journey or to accompany the plaintiff in the ambulance in a supervisory capacity. He seeks to allege against the fifth defendant that it was, as employer of the ambulance officers, negligent in failing to administer oxygen throughout the ambulance journey. The written note given by Dr Gavranic to the ambulance officers appeared to give an instruction for "O2 and suction".
126. The notice of that application was dated 1 October 1996. It followed the reasons I delivered wherein, in reviewing Mrs Lipovac's testimony, I indicated acceptance of her evidence concerning apparent administration of oxygen part way through the ambulance journey.
127. The application is more in the nature of a request to reopen a case at a late stage than the raising of a new case on appeal.
128. Mr Garling SC suggested that the evidence as given, particularly of Mrs Lipovac, Dr Gavranic and Mr Shaw, ambulance officer, supports the case he wishes now to make without the need for supplementation.
129. Mr Donohoe QC, for the fourth and fifth defendants, retorts that, had the behaviour of the ambulance officers been alleged to have been deficient at an earlier stage, more stringent enquiry would have been undertaken to establish what equipment they had and what the situation as they saw it would have required in the light of Dr Gavranic's instructions to them.
130. This seems to me to be a telling response. The reality behind Mrs Lipovac's observations was not explored. There had been no case made by any party such as the third defendant now seeks to make. It is now sought to be raised well after the evidence of, particularly, Mrs Lipovac and Mr Shaw has been given. The latter gave evidence on 10 July 1995. Mrs Lipovac was the first witness. It is true that Prof Beveridge in his report suggested Dr Gavranic should have accompanied the plaintiff in the ambulance but that was not seriously pressed and was based on an assumption I found erroneous, namely that phenobarb was likely to depress respiration.
131. The application is made not only at the heel of the hunt, but virtually after the fox has been caught and skinned. The fourth and fifth defendants cannot be expected to meet a case of which they have had no previous notice and as to which they are no longer able to defend themselves. In any event, it by no means appears on the evidence so far given that the allegations against the fourth and fifth defendants now sought to be made could be sustained.
132. Dr Gavranic's evidence suggests, consistently with his diagnosis of febrile fit, that by the time the plaintiff left the Lipovac home, he appeared to have recovered colour and breathing. I do not know if, in those circumstances, the continued administration of oxygen would have been perceived to be necessary unless, as happened, hypoxia reappeared. Hindsight might now suggest that it would have been better to have maintained oxygen and ventilation continuously but that is not the relevant test.
133. There is a further matter.
134. Mr Donohoe QC submitted that, as there has been no liability found as between the plaintiff and the fourth and fifth defendants, then there could be no order for contribution in favour of the third defendant.
135. This proposition is said to follow from the terms of s11(4) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT). It provides, A tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ...
136. Mr Donohoe QC points out that the fourth and fifth defendants were sued in respect of the same tort, namely, the negligent injury to the plaintiff. As they have been found "not liable" to the plaintiff, the "tort-feasor" firstmentioned has no valid claim for contribution. That submission was supported by reference to the decision of the House of Lords in George Wimpey v British Overseas Airways Corporation [1955] AC 169 and to the decision in Oceanic Crest Shipping Co v Pilbarra Harbour Services (1985-1986)160 CLR 626.
137. The third defendant has offered no effective answer to that submission. This seems to me to be an additional and persuasive reason to deny the third defendant's application to amend his contribution notices in relation to the fourth and fifth defendants.
The Trade Practices Act 138. There was a claim by the plaintiff against the first defendant based on an alleged breach of the Trade Practices Act 1974 (TPA). It alleged false or misleading advertising contrary to s52.
139. If made out, then the plaintiff could recover damages pursuant to s82(1) TPA.
140. Mr Garling SC points out that the third defendant's Contribution Notice picks up this allegation. There has been no express finding as to the liability of the first defendant to the plaintiff by virtue of this allegation.
141. So far as tortious liability is concerned, apart from the TPA, I have found no causal connection between the conduct of the first defendant, in relation to advertising or product information published or omitted to be published, and the injury to the plaintiff.
142. However, submits Mr Garling SC, but for the false or misleading product information, . the parents would not have administered the drug; . the third defendant would not have prescribed the drug.
143. He submits that it is not necessary for a cause of action under s52 to succeed to prove reliance by a party on the false or misleading information. Rather it is sufficient to demonstrate causation in the sense referred to by the High Court in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
144. Even if that submission was accepted, the finding already made that the product information or lack of it did not cause or contribute to the plaintiff's injury seems to me effectively to answer it.
145. Mr Harris, for the first defendant, further submits that, in any event, the plaintiff's claim was barred by s82(2) of the TPA. Thus, even if the first defendant had, by its conduct, contrary to the TPA, caused or contributed to the plaintiff's injury, that claim would, by 1993 when the action was commenced, have been statute-barred.
146. There is further consideration that the plaintiff's claim, against the first defendant has failed, it follows from Wimpey and Oceanic Crest (supra) that the claim for contribution by the third defendants against the first defendant must also fail. It is therefore, strictly speaking, unnecessary to address the question of the effect, if any, of s82(2) TPA. It was not pleaded by any defendant, whether in answer to the plaintiff's claim under the TPA or in answer to the first defendant's claim for contribution from the other defendants. Leave would be required now to assert such a defence.
147. Such a defence is, prima facie, regarded as waived if not pleaded, see Western Australia v Wardley Australia Limited & Ors (1991) 30 FCR 245.
148. No grounds have been made out, in my view, why any party should now have leave to add such a defence whether to the original claim by the plaintiff or otherwise even if it would serve some useful purpose.
149. If it was to be pleaded, however, the time bar would commence as from the date damage was suffered, as for a tort, see Arcadi & Anor v Colonial Mutual Life Assurance Society Ltd & Anor [1984] ATPR para 40- 473. It seems that the extension of time granted to minors under State and Territorial limitation laws does not apply, see Vink v Schering Pty Ltd & Ors [1991] ATPR para 41-064 and Calmao Pty Ltd v Stradbroke Waters Co-owners Co-op Society Ltd (1989) 21 FCR 28 although Mr Garling SC indicated that he would seek to challenge the authority of those decisions..
150. However, it is also unnecessary to determine that question for the reasons previously given.
151. The plaintiff's action under the TPA is dismissed as against the first defendant. No claim for contribution at the suit of any other defendant therefore arises.
152. It is, of course, clear that if the plaintiff had any valid claim for contribution would crystallise on judgment, that is, within the time prescribed by s21, Limitation Act 1985 (ACT).
153. I formally dismiss all claims for contribution as between all defendants. The third defendant is to pay each of the other defendants' costs thereof.
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