C S v Anna Biedrzycka - [2011] NSWSC 1213

Supreme Court

New South Wales

Medium Neutral Citation: C S v Anna BIEDRZYCKA [2011] NSWSC 1213
Hearing dates: 15, 16 and 17 November 2010; 20th May 2011; 2 and 16 June 2011; 12th August 2011; 27 September 2011
Decision date: 17 October 2011
Jurisdiction: Common Law
Before: Latham J
Decision:
I vacate the orders made on 20 May 2011. I make the following orders:
1. Verdict and judgment for the third defendant on the Amended First Cross Claim against the fourth defendant by way of contribution in the amount of $188,400.00.
2. The fourth defendant to pay pre-judgment interest to be calculated pursuant to s 100 of the Civil Procedure Act on the judgment sum.
3. The fourth defendant to pay the third defendant's costs of the Amended First Cross Claim in relation to the claim for contribution on a party-party basis up to 14 January 2010 and thereafter on an indemnity basis.
4. Verdict for the second defendant on the amended First Cross Claim against the fourth defendant in relation to the claim for contribution.
5. Verdict for the second and third defendants on the Amended First Cross Claim against the fourth defendant in relation to the breach of contract claim.
6. Verdict for the fourth defendant on the amended Second Cross Claim against the second and third defendants in relation to the breach of contract claim.
7. The second defendant to pay the fourth defendant's costs on the Amended Second Cross Claim in relation to the breach of contract claim on a party-party basis.
8. The Stay of the Judgment in favour of the fourth defendant against the plaintiff is discharged
9. Otherwise, no order as to costs.

Catchwords: TORTS - negligence - cross-claim for contribution - transmission of a medical condition scheduled under Public Health Act 1991 - medical centre - duty of care owed by provider of administrative services and facilities - failure to keep current and accurate patient records was a necessary condition of the occurrence of the harm - indemnity clause does not defeat claim for contribution - apportionment of responsibility and damages - CONTRACTS - breach of service agreements by second defendant's company and by third defendant - breach of service agreement by fourth defendant - second defendant cannot recover personally for breach as not party to agreement - principle of circuity of action does not apply as measure of damages is not precisely the same - principle of equitable contribution does not apply as second and third defendants bore greater burden of liability
Legislation Cited: Civil Liability Act 2002
Public Health Act 1991
Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282
Caltex Refineries (Qld) Pty Ltd v Stavar & Ors. [2009] NSWCA 258; 75…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 1213
Decision Date: 17 October 2011

CaseChat Overview and Summary

In the matter of C S v Anna Biedrzycka, the plaintiff sought damages for the transmission of a medical condition under the Public Health Act 1991. The dispute involved multiple defendants, including medical centre administrators and service providers, and the plaintiff claimed negligence in the management and maintenance of patient records. The court was tasked with determining the extent of the duty of care owed by each defendant, and whether any of them could claim contribution from others.

The legal issues before the court included whether a duty of care was owed by the medical centre providers, if the failure to maintain accurate patient records constituted a breach of that duty, and the applicability of indemnity clauses and the principle of equitable contribution. Additionally, the court had to consider the breaches of service agreements by the second and third defendants, and whether the second defendant could recover personally for these breaches.

The court found that a duty of care was indeed owed by the medical centre providers, and the failure to keep current and accurate patient records was a necessary condition for the harm that occurred. The indemnity clause did not defeat the claim for contribution, and the court apportioned responsibility and damages accordingly. The court also held that the second defendant could not recover personally for the breach of service agreements, as they were not a party to the agreement. The principle of circuity of action did not apply, as the measure of damages was not precisely the same, and the principle of equitable contribution did not apply because the second and third defendants bore a greater burden of liability.

The final orders included apportioning damages among the defendants and dismissing the second defendant's personal claim for breach of service agreements.

Orders