FEDERAL COURT OF AUSTRALIA
Casey v DePuy International Ltd (No 4) [2024] FCA 724
File number: ACD 10 of 2010 Judgment of: MARKOVIC J Date of judgment: 5 July 2024 Catchwords: CONTRACTS – expert determination only reviewable for error of law – whether expert owed duty to accord procedural fairness – where no such duty owed – whether expert applied correct test of causation – whether expert erred in treatment of evidence – where no error of law established – application dismissed Legislation: Trade Practices Act 1974 (Cth) Cases cited: Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367
Fishlock v Plummer [1950] SASR 176
Lahoud v Lahoud [2010] NSWSC 1297
Shoalhaven City Council v Firedam Civil Engineering Pty Limited (2011) 244 CLR 305
State Government Insurance Commission v Oakley [1990] Aust Torts Reports 81-003
Wallace v Kam (2013) 250 CLR 375
Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563
Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 166 Date of hearing: 2; 12 April 2024 Counsel for the Applicant: Dr D Graham SC and Mr S Maybury Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: Mr R A Dick SC and Mr D T W Wong Solicitor for the Respondents: Barry Nilsson Lawyers ORDERS
ACD 10 of 2010 BETWEEN: PAMELA CASEY
Applicant
AND: DEPUY INTERNATIONAL LTD
First Respondent
JOHNSON & JOHNSON MEDICAL PTY LTD
Second Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS THAT:
1.The amended interlocutory application filed by Mr Bradley Eaton (Applicant) on 5 April 2024 is dismissed.
2.The Applicant is to pay the respondents’ costs of the amended interlocutory application as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
In 2010 Pamela Casey as lead applicant commenced this proceeding pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against DePuy International Ltd and Johnson & Johnson Medical Pty Ltd (JJM) as respondents. Ms Casey alleged that a prosthesis designed to be fitted during total knee replacement surgery (Affected Implant) was not fit for purpose nor of merchantable quality: see Casey v DePuy International Ltd (Appeal from Independent Counsel) [2023] FCA 254 (Casey Appeal (No 1)) at [1].
In 2012 the proceeding settled. The terms of settlement, as approved by the Court pursuant to s 33V(1) of the FCA Act, are recorded in an amended settlement agreement dated 19 November 2012 between Ms Casey, DePuy and JJM. Ms Casey entered into the settlement agreement on her own behalf and as the representative of group members.
The settlement agreement did not provide for the payment of a global sum to group members but provided for a mechanism by which there could be an…
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- AGLC
- Casey v DePuy International Ltd (No 4) [2024] FCA 724
- Case
- [2024] FCA 724
- Decision Date
CaseChat Overview and Summary
The court found that the expert did not owe a duty of procedural fairness to Mr Eaton, as the agreement between the parties did not require such a duty. The court also found that the expert applied the correct test of causation in making his determination, and that he did not err in his treatment of the evidence. The court held that the expert's determination was only reviewable for error of law, and that no such error had been established. The court therefore dismissed Mr Eaton's application.
The court noted that the respondents' submissions on the issue of categorisation were ambiguous and less than clear, but that this did not amount to an error of law on the part of the expert. The court also held that the expert's determination that Mr Eaton's injuries were caused by a novus actus interveniens was not an error of law, as it was supported by the evidence before him.
The court ordered that the amended interlocutory application filed by Mr Eaton be dismissed, and that he pay the respondents' costs of the application as agreed or taxed. The court held that Mr Eaton had not succeeded in establishing any of the grounds for his application, and that the respondents were therefore entitled to their costs.
Orders
Orders of the court
1. The amended interlocutory application filed by Mr Bradley Eaton (Applicant) on 5 April 2024 is dismissed.
2. The Applicant is to pay the respondents’ costs of the amended interlocutory application as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Eaton submits that when Independent Counsel made his findings that “it is a moot point as to whether Mr Eaton satisfies the criteria set out in cl 3.1(d)(iii) or not” (at IA [353]), “the consequences of the right patella tendon injury were dire” (at IA [332]) but “in large measure, Mr Eaton’s injury, loss and damage has resulted from a novus actus interveniens” (at IA [340]), he failed to have regard to the importance of the full definition of category D(iii). Mr Eaton contends that Independent Counsel also failed to give effect to the agreement between the parties and denied him procedural fairness in that he took those steps despite the clear position in his submissions and without giving him the opportunity to make further submissions or to obtain further evidence. Consideration By these grounds, Mr Eaton essentially contends: first, that Independent Counsel made an error of law by determining the category of claim for the purposes of cl 3 of the Compensation Protocol; and secondly that, once he embarked on that course, he denied Mr Eaton procedural fairness by failing to give him an opportunity to make further submissions or to adduce evidence about the appropriate category of claim. As to the first contention, I am not satisfied that Independent Counsel made an error of law by determining the category of claim. The respondents’ submissions to Independent Counsel on this issue were, in my view, ambiguous, somewhat disingenuous and less than clear. As to their ambiguity, at [1.15] of their submissions the respondents said (as written, footnote omitted):The disputes for determination under clause 10.2 in this matter are as follow:(1)a dispute concerning the amount of compensation for financial losses (10.2(b)); and (2)a dispute concerning the amount of compensation for non-economic loss and/or Gratuitous Care (10.2(c)). At that point no mention was made about any dispute as to category. Notwithstanding that, under the heading “Categorisation”, at [6.3]-[6.4] of their submissions the respondents said (as written, footnote omitted):6.3In 2015 the parties agreed that the Group Member is Category D(iii) on the basis that he “has experienced extraordinary and significant complications or injury in excess of that to which Eligible Group Members in Category A, B or C would experience as a result of the failure of an Affected Implant”. The Group Member is therefore is subject to individual assessment of non‑economic loss. 6.4With respect to the categorisation of the Group Member, the Respondents note the following:(1)This agreement was six years before the Respondents became aware of the Group Member’s slip and fall incident in January 2012. The Respondents submit this event was a novus actus interveniens by which the causal chain was broken so that any injury, loss and damage from the Affected Implant ceased on 16 January 2012.(2)It follows that the Respondents do not accept the Group Member’s complications which culminated in the [AKA] were caused by the Affected Implant.(3)Furthermore, no attempt has been made in the Group Member’s submissions to explain how the Group Member satisfies the second limb of category D(iii) being “in excess of that to which Eligible Group Members in Category A, B or C would experience as a result of failure of an Affected Implant”. (4)Nor could such an explanation be proffered – there is no evidence in the Claim Documents concerning the usual injuries and complications of Group Members in those categories, or how the Group Member’s complications and injuries are extraordinarily and significantly in excess of those.(5)To illustrate, it cannot be determined from the Claim Documents that, for example, a Group Member in Category C who has undergone a revision surgery and three other invasive surgical procedures would not experience similar injuries and complications to the Group Member. The Group Member has provided no necessary comparators and, thereby is unable to discharge his onus pursuant to clause 4.2.(6)Regardless of this categorisation, D(iii) still requires individual assessment per clause 4.1 of the Compensation Protocol.