Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139 (3 May 2005)

CITATION: Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139

FILE NUMBER(S):

41042/03

HEARING DATE(S): 8 October 2004

JUDGMENT DATE: 03/05/2005

PARTIES:

Robin Keith Hunt (Appellant)

Knight Frank (NSW) Pty Ltd (First Respondent)

Anthony Scotford & Ors t/as Ebsworth & Ebsworth (Second Respondent)

Allcorp Cleaning Services Pty Limited (Third Respondent)

JUDGMENT OF: Mason P Giles JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1307/01

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:

L King SC/ H J Halligan (Appellant)

First Respondent (No appearance)

M A Elkaim SC/ R D Cavanagh (Second Respondent)

G M Watson SC/ A C Casselden (Third Respondent)

SOLICITORS:

Beilby Poulden Costello (Appellant)

Curwood & Partners (First Respondent)

Henry Davis York (Second Respondent)

Wotton & Kearney (Third Respondent)

CATCHWORDS:

NEGLIGENCE - breach - whether reasonably foreseeable that a person exiting a lift would trip over a crate placed immediately in front of door - obligation on entrants to take reasonable care for own safety - EVIDENCE - inferences - whether evidence supported a reasonable and definite inference that someone for whose conduct the occupier was vicariously liable placed the crate in position - COSTS - whether a Bullock or Sanderson order appropriate (D)

LEGISLATION CITED:

Supreme Court Rules 1990

DECISION:

(1) Appeal allowed (2) Judgment below set aside (3) Judgment for the appellant against the second respondents on liability. (4) Cross-appeals dismissed (5) Save as to the costs of preparation of the Red Appeal Book, second respondents to pay the appellant's costs of his appeal against the second respondent, the second respondents' cross appeal and the appellant's costs of trial insofar as they concerned his case against them (6) Appellant to pay the third respondent's costs of the appeal and of the third respondent's cross appeal (7) Matter remitted to the District Court for hearing on damages.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41042/03

DC 1307/01

MASON P

GILES JA

McCOLL JA

Tuesday, 3 May 2005

Robin Keith HUNT v KNIGHT FRANK (NSW) PTY LTD & 2 ORS

Judgment

1 MASON P: I agree with McColl JA.

2 GILES JA: I agree with McColl JA.

3 McCOLL JA: This is an appeal from a judgment of Judge Ainslie-Wallace who dismissed the appellant’s claim for damages and entered a verdict in favour of the respondents. The hearing below was confined to the issue of liability.

4 The appellant was a security guard who was injured on 6 May 2000 when he fell over a milk crate left outside a goods lift in a city office building known as the “Glasshouse” in King Street, Sydney. He was employed by Knightguard Pty Ltd, which was contracted by Knight Frank (NSW) Pty Ltd to provide security services to the building. The primary judge found that the appellant failed to prove any of the respondents were responsible for the position of the milk crate and that, in any event, in the circumstances, it was not negligent for the crate to have been left in that position. She also found that in the event she was in error on the negligence issue, the appellant was not guilty of contributory negligence. She ordered the appellant to pay the respondents’ costs.

5 The appellant challenges the primary judge’s findings on the issue of negligence. The respondents have filed cross appeals challenging the primary judge’s finding that the appellant was not guilty of contributory negligence.

Parties to the Appeal

6 Knight Frank (NSW) Limited was the first defendant at trial. The Notice of Appeal named it as the first respondent, but did not seek to appeal against the verdict entered in its favour by the primary judge. Knight Frank did not appear at the hearing of the appeal. It was common ground that that was an appropriate course and that the appeal should be approached on the basis that it was not a respondent.

7 The partners of Ebsworth & Ebsworth (“Ebsworths”) were the second respondents. Allcorp Cleaning Services Pty Limited was named as the third respondent. At the hearing Mr King SC, who appeared for the appellant with Mr Halligan, did not press the appeal as against the third respondent. He acknowledged that, in the circumstances, the appellant would be liable to pay the third respondent’s costs even if otherwise successful. He did not seek any special costs order during the oral argument. However after judgment was reserved the appellant sought and was granted leave to make supplementary written submissions to the effect that if the appeal succeeded, the costs orders he had suffered in the District Court should be varied to require the second respondent to pay the first and second respondents’ costs of the trial on a Bullock or Sanderson basis.

8 At first instance, the first and second respondents joined the appellant’s employer as a cross-defendant. The primary judge dismissed the cross claims. The employer is not a party to the appeal.

9 The appellant’s case stands to be determined, therefore, on whether he can establish the primary judge erred in two respects: first, in concluding that Ebsworths was not responsible for the position of the crate and, secondly, that even if it was, it had not breached its duty of care to him.

Statement of the case

10 On Saturday 6 May 2000 the appellant was engaged in his ordinary duties as a security guard, patrolling the “Glasshouse”. He had been rostered to work a day shift. He commenced work shortly before 6:00 am.

11 At about 10:30 am he took a designated goods lift known as “Lift No 7” to Level 23 of the building. When he arrived he stepped out of the lift intending to turn right to turn on the lights to the floor. As he stepped out of the lift he tripped over an empty milk crate which was immediately in front of the lift door. He fell heavily onto his knee and injured himself. A photograph marked by the appellant at the trial shows that the milk crate was virtually on the “doorstep” of the floor. It was between the two walls which formed the recess into which the lift doors were set.

12 As I have noted the appellant sued three parties: Knight Frank (NSW) Limited, the managing agent of the building, Ebsworths, the firm of solicitors which occupied Level 23 and Allcorp Cleaning Services Pty Limited, the cleaning company contracted by the managing agent to clean the building. He sought to establish that at last one of them was responsible for the crate being left in the position where he tripped over it and that it was negligent to leave it there.

13 The evidence disclosed that Lift No 7 was used by the milkman, cleaners and security guards to carry out their respective duties.

14 Ebsworths engaged a catering manager, Mrs Toy, who worked from Level 23. She gave evidence that Ebsworths had a regular milk order which was delivered to Level 23 each morning in a crate. When she arrived at work at about 9:00 am each morning, the crate of milk was in the kitchen. She would empty the crate and put the crate in the utility room. She said that at the end of the day the crate was placed against the wall in the foyer on Level 23 to the left hand side of Lift No 7 for the milkman to collect the following morning. She said that occasionally she put the crate out before she left at 5:00 pm, but more often than not the cleaners would put the crate out beside the lift.

15 Mr Brown, who had a milk delivery contract with Ebsworths, gave evidence that it was his practice to make milk deliveries from Lift No 7. He said that he would enter the lift from Level 2 with his trolley. When the lift door opened at Level 23, he would hold the door open with his foot, place the full crate of milk on the floor beside the lift and remove the empty crate.

16 The cleaners used Lift No 7 to remover rubbish and other materials from the Glasshouse on a daily basis. The practice amongst the tenants and cleaners appears to have been that, at least on Level 23, these materials were left close to the side of Lift No 7. This was done for easy collection. The materials were collected and transported down to Level 2, where rubbish and other materials were stored before being removed from the building. The primary judge found that on occasions milk crates could be left near or directly in front of the doors of Lift No 7.

17 The cleaners started cleaning the tower each weekday evening at 5:00 pm. Mr Kamel, the third respondent’s leading hand at the Glasshouse, gave evidence that the procedure was that the cleaners would work in a team. On each floor, a cleaner would empty the rubbish bins into large plastic bags and place them at Lift No 7 to await collection. Mr Kamel would start at the top floor and, using Lift No 7, would go to each floor in turn and collect the rubbish waiting at the lift door. Mr Kamel agreed that from time to time he had removed a milk crate full of rubbish from the lift foyer which had been left at the lifts, although he said it was not the cleaners’ responsibility to remove empty milk crates. The cleaners finished their work at 9:00 pm and handed their keys in, presumably to the security guards.

18 Part of the security guards’ job was to conduct patrols of the tower. They used Lift No. 7 for this purpose. It could be taken from the fifth floor where their offices were located to all other floors in the building.

19 One of the security guards’ duties when on patrol was to keep an eye out for anything that could cause a security problem, for example, items blocking the fire doors. All of the guards who gave evidence, including the appellant, said that if they had seen a milk crate directly in front of the lift doors, it would have been moved either to the side of the lift or removed and taken to Level 2.

20 Darren Williams was the security guard who performed the evening shift prior to the shift on which the appellant was injured. He conducted a patrol of the tower commencing at about 11:55 pm and concluding at 1:08 am. He said that to conduct the patrol of Level 23 he would have left Lift No 7 and crossed the lift foyer to check the fire door was closed. In those circumstances, he said that if there had been a crate in front of the doors to Lift No 7 he would have noticed it and removed it.

21 Level 23 was closed to public access from 6:00 pm. After that hour access was only available using a security key. It was common ground, as I understand the evidence, that after 6:00 pm the night before the accident, the only people who could have had access to Level 23 using a security key were Ebsworths’ partners or employees, the security guards or the cleaners. There was no suggestion of any forced entry by an intruder.

The primary judge’s findings

22 The primary judge found that it was more probable than not that the crate the appellant tripped over was one which had contained a milk delivery to Ebsworths which had been removed by the “cleaners from the utility room and left by the lifts to await collection by the milkman early on Monday morning”. Her Honour accepted that the cleaners had not left the crate directly in front of Lift No. 7 as, if they had, Mr Williams would have seen it on his night patrol and removed it.

23 Before the primary judge, the appellant submitted that because Ebsworths had exclusive control over the floor after 6:00 pm it should be inferred that the crate was left in front of the lift by someone for whose conduct Ebsworths was vicariously liable sometime between 1:08 am (when Mr Williams finished his patrol) and 10:30 am on Saturday morning, when the appellant was injured.

24 Mr Kennedy, Ebsworths’ Managing Partner at the time of the accident, gave evidence that from time to time Ebsworths’ solicitors worked on Saturdays and that it was possible staff were working on the day the appellant was injured. He said the building management operated a video camera which took photographs of entrants to the building, at least on a Saturday. In addition, he said the key each member of staff used to access the building registered a particular number on a system operated by the building’s management. He said that that number could be accessed for a short period after any particular day. It did not appear Ebsworths had ever sought to access that system to identify entrants to the building some years after a given day. Ebsworths did not call any evidence to establish that none of its staff were on Level 23 between 1:08 am and 10:30 am on the day the appellant was injured.

25 The primary judge was not satisfied that the appellant had established that an Ebsworths’ employee entered Level 23 between 1:08 am and 11:00 am and moved the crate in front of Lift No 7. She concluded that, on the evidence that position was “difficult to maintain”. The “evidence” to which her Honour refers appears to have been that the lights on Level 23 were out when the appellant tripped. There was no express finding to that effect, however, it is implicit in her Honour’s rejection of the appellant’s case against Ebsworths which was expressed as follows:

“The lights for the tenancy floor are located in the lift foyer. Although Mr Kennedy agreed that one could work in the office by the natural light which was admitted through the office windows, there would be no light in the core of the floor where, inter alia, the toilets were located. I am not satisfied that one of the second defendant’s employees came onto the floor that Saturday morning and did not turn on the lights for the floor but in some way moved the milk crate from its usual position against the wall to the position in front of the lift door.”

26 The primary judge also found that because the crate could have come to be in front of the lift without negligence, the principle of res ipsa loquitur could not apply. She appears to have reasoned to that conclusion on the basis that Ebsworths had taken reasonable steps to avoid the risk that someone on Level 23 would trip over the milk crate. Those reasonable steps appear to have been first, the fact that the practice was to leave the crate to the side of the lift and no-one had complained about falling or tripping over a crate before the appellant’s accident and secondly, the system of the security guards checking for potential hazards.

27 The primary judge disposed of the contributory negligence issue by finding that, while the foyer area was sufficiently well lit for the appellant to have seen the crate, it was reasonable in all the circumstances for him to have been looking where he was going rather than directly at his feet.

Issues on Appeal

28 The appellant’s essential submission was that the primary judge erred in failing to draw the inference that the crate was left in front of the lift by someone for whose conduct Ebsworths was vicariously responsible and in failing to find that it was negligent for the crate to be left in that position.

29 The appellant submitted that the primary judge should have taken a “robust and pragmatic approach” to proof of causation where there was sufficient evidence to find Ebsworths liable, particularly when the facts of what occurred within its offices were peculiarly within its knowledge.

30 The appellant contested the primary judge’s reliance on the fact that the lights on Level 23 were out when the appellant was injured as the basis for her conclusion that an Ebsworths’ employee had not moved the crate. Mr King drew attention to Mr Kennedy’s evidence that it was possible to work in the outside offices in the building without turning on the lights. In any event, he argued, the primary judge had not considered, and could not properly have excluded, the possibility that an Ebsworths’ employee had entered Level 23 prior to the accident, but after 1:08 am, turned the lights on and off and moved the crate during that visit. He submitted that that possibility was an available inference particularly where Ebsworths had not established that no one for whose conduct it was vicariously liable was on Level 23 between 1:08 am and 10:30 am on 6 May 2000.

31 Mr King relied upon the well-known passage in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 480 –1 where Williams, Webb and Taylor JJ said (citations inserted):

“It is clear that it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred: Jones v. Great Western Railway Co. (1930) 144 L.T. 194, at p. 197. Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley [1911] A.C. 674, at p. 687 ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood’. These passages are extracted from the unanimous judgment of this Court ... in Bradshaw v McEwan Pty Ltd (Unreported, delivered on 27 April 1951).”

32 The appellant submitted that leaving the crate immediately in front of the doors to Lift No 7 was negligent because it was reasonably foreseeable that a person exiting the lift would have no opportunity to avoid tripping over it.

33 The appellant contended that there was no basis for disturbing the primary judge’s conclusion on contributory negligence on the basis that there was no evidence inconsistent with her finding: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 73 ALJR 306.

34 Ebsworths argued that the inference for which the appellant contended amounted to no more than speculation. It also submitted that the inference was contrary to evidence tending to suggest the positioning of the crate outside Lift No 7 had not been caused by it. It argued that the Court was not able to draw an inference which was contrary to positive evidence.

35 The “contrary evidence” to which Ebsworths pointed was its long established practice to leave the crate to the side of the lift and the appellant’s failure to establish that anyone for whom Ebsworth was vicariously liable was present on Level 23 at any time between the close of business on 5 May 2000 and time he was injured.

36 Ebsworths also argued that an inference adverse to it could not be drawn absent a cogent reason for someone for whom it was vicariously liable moving the crate in front of the lift.

37 Ebsworths argued that it was not possible to adduce positive evidence that no member of the firm attended Level 23 on the morning prior to the accident, but contended the most likely inference was that there was no such person present. The evidence to which it pointed was that upon which the primary judge found in its favour: that the lights in the foyer were off, that it would have been necessary to turn on the main lights to turn on the lights in the individual offices and that although there might have been natural light in external offices, the more probable inference was that a solicitor working in an office would turn on the lights rather than use natural light.

38 Ebsworths submitted that an inference that it was responsible for the crate being placed in front of Lift No 7 would, at best, be a case of impermissible conjecture: cf Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304 – 305.

39 Alternatively, Ebsworths submitted that even if the inference was available that someone acting on its behalf moved the crate in front of Lift No 7, it should not be inferred that that was negligent. It contended that the milk crate was large enough to be seen and would have been obvious to anybody looking where he or she was going before exiting the lift. Ebsworths submitted that an occupier was entitled to assume that an entrant will take reasonable care for his or her own safety: Phillis v Daly (1988) 15 NSWLR 65; Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141 at 145. It submitted that this proposition was of particular application when it was the appellant’s job to look out for obstacles like the crate.

40 Insofar as its cross-appeal on contributory negligence was concerned Ebsworths submitted that the primary judge’s conclusion favourable to the appellant failed to have regard to the fact that it was part of his job to look out for hazards such as the crate. Ebsworths drew attention to the following evidence from the appellant:

“Q: So this is the case you never saw the thing you were supposed to be looking for?

A. Not until after I’d tripped over it.”

41 Ebsworths argued that even though the main lights “would probably have been off” when the appellant emerged from the lift there would still have been sufficient light for him to see the crate. This submission was based on the proposition that even at midnight Mr Williams said there was enough light from the lift and an emergency exit light to see where one was headed.

Consideration

42 Determination of the issue of liability turned on what was the appropriate inference to be drawn from the circumstances in which the appellant was injured: cf Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358; Holloway v McFeeters (at 480 – 481); Jones v Dunkel (at 304 – 305); Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 – 162.

43 The primary judge was required to determine whether there existed “evidence supporting some positive inference ... an inference which arises as an affirmative conclusion from the circumstances proved in evidence” that Ebsworths left the crate in front of Lift No 7: Jones v Dunkel (at 304, per Dixon CJ). It was necessary that she was able to conclude that the circumstances gave rise to a “reasonable and definite inference” rather than “to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”: Girlock (Sales) Pty Limited v Hurrell (at 161 – 162). However it should be borne in mind that a court is entitled to draw inferences from “slim circumstantial facts that exist so long as that goes beyond speculation”: Progressive Recycling Pty Limited v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 at [7] per Young CJ in Eq (with whom Ipp JA and Davies AJA agreed).

44 It was also relevant for her Honour to take into account, as the appellant submitted, that the facts relating to Level 23 were peculiarly within Ebsworths’ knowledge. In Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371, Dixon CJ said:

"... the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant ... But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it. ..." (emphasis added)

45 Mr Williams’ evidence established that the crate was not in the position in which the appellant encountered it the previous morning at 1:08 am. That evidence effectively exculpated the cleaners from liability for placing it in front of Lift No 7 as they finished their duties and left the building at the latest at 9.00 pm. Mr King properly conceded as much in not pressing the appeal against the third respondent.

46 As it appears from the acceptance of Mr Williams’ evidence to be common ground that the crate was moved between 1:08 am and 10:30 am, the question is whether it is more probable than not that it was moved in front of the lift doors during that period by someone for whose conduct Ebsworths was liable. In my view the primary judge erred in concluding this issue adversely to the appellant.

47 Ebsworths was the occupier of Level 23. It was in its exclusive possession. Mr Kennedy’s evidence was that Ebsworths’ personnel came to work on Saturdays. Accordingly, after Mr Williams’ inspection had concluded at 1:08 am the only people who could and would have had access to Level 23 prior to the accident were Ebsworths’ personnel. It would be reasonable to infer that one or more of such people attended on the floor on 6 May 2000 prior to 10:30 am.

48 It was also reasonable to infer that Ebsworths personnel moved the crate into its position either deliberately, knowing of the milkman’s practice of pulling the crate into the lift without leaving it, but unaware that the security guards used the lift to conduct their patrols or possibly by knocking it accidentally when walking through the foyer. In my view it is more probable that the crate was deliberately moved, as the evidence disclosed it was Ebsworths’ personnel who customarily positioned the crate for the milkman to collect.

49 The fact that the lights were out at the time of the appellant’s accident did not displace the inference that Ebsworths’ personnel moved the crate. As the appellant submitted the lights might well have been out either because the itinerant Saturday attendee on Level 23 did not need them or because he or she had turned the lights off on departure.

50 In my view the appellant adduced sufficient evidence to require Ebsworths to explain how the crate could have ended up in front of Lift No 7 between 1:08 am and 10.30 am on 6 May 2000 without its involvement. Ebsworths failed to discharge that evidentiary burden. In my view the evidence gave rise to a reasonable and definite inference that Ebsworths’ personnel left the crate in front of Lift No 7.

51 I am also of the view that leaving the crate immediately in front of Lift No 7 was negligent. The crate was left in such a position that it constituted a “trap” to those exiting the lift, to use the language of earlier cases on occupier’s liability. A person exiting the lift, even taking reasonable care for his or her own safety, would not have expected to find a large obstacle such as the crate immediately in front of the lift doors.

52 The primary judge found that it was reasonable for the appellant to exit the lift looking where he was going (ie. looking towards the light switch he was intending to turn on) rather than looking directly at his feet. In my view that was the conduct which one could have anticipated of any reasonable person exiting the lift.

53 Accordingly, I am satisfied that the appellant has established that Ebsworths breached its duty of care in placing the crate in front of Lift No 7.

54 For the same reasons I am of the view that the primary judge’s conclusion that the appellant was not guilty of contributory negligence should not be disturbed.

Costs

55 As I earlier noted the appellant sought leave after the conclusion of the oral argument to argue that in the event its appeal was successful against the second respondent, the Court’s order as to costs should include orders that the second respondent pay the costs of the District Court proceedings incurred by the first and third respondents (which would otherwise be payable by the appellant) on a Bullock or Sanderson basis.

56 The appellant argued that it was entitled to such an order on the basis that Ebsworths, by denying liability and claiming contribution against the first respondent, induced the appellant to maintain the proceedings up to judgment against the first and third respondents.

57 Needless to say Ebsworths opposed the appellant’s application for a Bullock or Sanderson order. Ebsworths submitted that it was reasonable for it to deny liability having regard to the fact that it did not know who left the milk crate in front of Lift No 7. It also pointed to the fact that the appellant joined all respondents to the proceedings before it filed any cross-claim. Accordingly, it submitted that the Court’s discretion in relation to costs should not be exercised against it where both the appellant and Ebsworths were in the same position in terms of not knowing as a fact who had placed the crate in front of Lift No 7.

58 The question whether a Bullock or Sanderson order ought be made turns on the question “whether the unsuccessful defendant has, by his conduct in relation to the matter made it a proper exercise of discretion to order costs” on that basis: see Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 at 229 per Gibbs CJ; Roads & Traffic Authority v Snape [1999] NSWCA 47 at [31] per Handley JA (with whom Powell and Giles JJA agreed); Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237 at [82] per Giles JA (with whom McColl JA and Cripps AJA agreed).

59 In my view, the appellant has not demonstrated that there was anything in Ebsworths’ conduct which makes it fair to impose upon it liability for the costs of the first and third respondents at the trial.

60 The appellant’s success against Ebsworths has turned on the drawing of an inference adverse to it. The joinder of three respondents, each of whom could have had some responsibility for leaving the crate in front of the lift, demonstrated the appellant was in doubt as to who may have been responsible for the position of the crate. While it may well be the case that the fact Ebsworths denied liability and, indeed, maintained a claim for contribution against the first respondent, led to the appellant maintaining its proceedings to judgment against the first and third respondents, I am not persuaded that that denial of liability or claim for contribution was unreasonable.

61 In my view, the appellant is not entitled to a Bullock or a Sanderson order.

62 The Court indicated during the oral argument that if the appellant was successful, he would not be entitled to his costs of the preparation of the Red Appeal Book which appeared to include every version of the numerous pleadings, notices of motion, affidavits and subpoenas both to give evidence and for the production of documents: cf Supreme Court Rules Part 51 r 33.

Orders

63 I propose the following orders:

(1) Appeal allowed.

(2) Judgment below set aside.

(3) Judgment for the appellant against the second respondents on liability.

(4) Cross-appeals dismissed.

(5) Save as to the costs of preparation of the Red Appeal Book, second respondents to pay the appellant’s costs of his appeal against the second respondent, the second respondents’ cross appeal and the appellant’s costs of trial insofar as they concerned his case against them.

(6) Appellant to pay the third respondent’s costs of the appeal and of the third respondent’s cross appeal.

(7) Matter remitted to the District Court for hearing on damages.

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LAST UPDATED: 03/05/2005