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Courtney v Medtel Pty Ltd

Courtney v Medtel Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Courtney v Medtel Pty Limited [2003] FCA 36
TRADE PRACTICES – consumer protection – representative proceedings – batch of
pacemakers subject to hazard alert because of risk of premature failure due to battery depletion – only a small proportion of batch actually fail prematurely – all pacemakers subject to a “background” risk of premature failure – whether superadded risk of failure due to use of a particular solder in the manufacturing process constitutes pacemakers unfit for purpose or not of merchantable quality – ss 74B and 74D of the Trade Practices Act 1974 (Cth).
COMPENSATION – whether minor stress and anxiety compensable under ss 74B and 74D of the Trade Practices Act 1974 (Cth) – assessment of compensation in respect of pain and suffering following explantation of pacemaker – whether compensation available under ss 74B and 74D in respect of past gratuitous services provided to patient following explantation of pacemaker.
Trade Practices Act 1974 (Cth) ss 4B, 68, 71, 74A, 74B, 74D, 74K, 82
Federal Court of Australia Act 1976 (Cth), ss 33J, 51A
Trade Practices Amendment Act 1978 (Cth)
Therapeutic Goods Act 1989 (Cth) s 30(1), (2)(b)
Federal Court Rules O 29 r 2
Law Reform (Manufacturers Warranties) Ordinance 1975 (ACT)
Supreme Court Rules (NSW), Schedule J
Manufacturers Warranties Act 1974 (SA)
Sale of Goods Act 1893 (UK)
Supply of Goods (Implied Terms) Act 1973 (UK)
Sale of Goods Act 1979 (UK)
Supply of Goods Act 1994 (UK)
Uniform Law on the International Sale of Goods art 33(1)(d)
United States Uniform Commercial Code s 2-314(2)(c)
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 cited.
Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR cited.
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 discussed.
Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323 followed.
Rogers v Parish (Scarborough) Ltd [1987] QB 933 cited.
Bristol Tramways & Carriage Co Ltd v Fiat Motors Ltd [1910] 2 KB 831 cited.
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 cited.
Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 followed.
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 cited.
George Wills and Co Ltd v Davids Pty Ltd (1957) 98 CLR 77 distinguished.
O’Brien v Medtronic, Inc 149 Wis 2d 615; 439 NW 2d 151 (1989) cited.
Khan v Shiley, Inc 217 Cal. App. 3d 848; 266 Cal Rptr 106 (1990) cited.
Larsen v Pacesetter Systems Inc 74 Haw 1, 837 P 2d 1273 (1992) cited.
Michael v Shiley, Inc, 46 F 3d 1316 (1995) cited.
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 followed.
Tame v New South Wales (2002) 191 ALR 449 discussed.
Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 cited.
Zoneff v Elcom Credit Union Ltd (1990) ATPR 41-058 cited.
Farley v Skinner [2002] 2 AC 732 cited.
Griffiths v Kerkemeyer (1977) 139 CLR 161 followed.
Van Gervan…

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: [2003] FCA 36
Decision Date: 5 FEBRUARY 2003

CaseChat Overview and Summary

The case involved a legal dispute between the applicant and Medtel Pty Ltd, concerning compensation for pain and suffering, loss of enjoyment of life, and economic loss. The matter was heard in the Federal Court of Australia. The applicant sought compensation for injuries resulting from a defective medical device, specifically a pacemaker manufactured by Medtel. The claim was brought under sections 74B and 74D of the Therapeutic Goods Act.

The central legal issues addressed by the court included determining the appropriate amount of compensation for pain and suffering, loss of enjoyment of life, and economic loss, as well as the applicable rates of interest on these awards. The court also considered the principles governing the imposition of interest on economic loss and whether the de minimis principle applied in this context. Another issue was whether to provide guidance on broader questions formulated by the parties concerning the fault and hazards associated with the pacemakers as a class, and the appropriate orders and directions for the further conduct of the litigation.

The court found in favour of the applicant, awarding compensation totalling $9,988.20, which included amounts for pain and suffering, loss of enjoyment of life, and past gratuitous care services provided by Mrs Courtney. The court also determined that interest should be applied to the awards for pain and suffering, and loss of enjoyment of life, but not for economic loss, on the de minimis principle. The court opted not to address the broader questions posed by the parties, instead inviting submissions on appropriate orders and directions for the further conduct of the litigation.

ORDERS:
1. The parties were required to file written submissions within fourteen days regarding the appropriate orders and directions for the further conduct of the proceedings.
2. The matter was listed for further directions on 27 February 2003.

Orders

Orders of the court

1. The parties file written submissions within fourteen days as to the appropriate orders and directions for the further conduct of the proceedings.

2. The matter be listed for further directions on 27 February 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SACKVILLE J

The award of compensation for payment for pain and suffering and loss of enjoyment of life should attract interest from 1 October 2000 at the rate of four per cent per annum: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. The award of compensation in respect of the care services provided by Mrs Courtney should attract interest from the same date, at commercial rates: Grincelis v House. In accordance with the practice of the Court, the rates should be those specified in Supreme Court Rules (NSW), Sched J: White Industries (Qld) v Flower & Hart (No 2) (2000) 103 FCR 559, at 574-575. There should be no allowance for interest in respect of economic loss, on the de minimis principle.CONCLUSION The applicant has succeeded in his claim against Medtel for compensation pursuant to ss 74B and 74D of the TP Act. I have assessed the compensation at $9,988.20, comprising $7,500 for pain and suffering and loss of enjoyment of life, $2,420 in respect of past gratuitous care services provided by Mrs Courtney and $68.20 for economic loss. I have also provided for interest on the first two amounts. Some remaining group members are in a position similar to that of the applicant, although obviously each claim requires individual consideration. I have also expressed views on the judgment that bear on the claims of other remaining group members. To that extent, the judgment may assist in resolving these claims. My present view, subject to further submissions, is that I should not answer the separate questions formulated by the parties. The order pursuant to FCR, O 29 r 2 was made by consent. The respondents, however, have effectively resiled from their agreement to following the course suggested by the order. Moreover, I see little point in attempting to answer question (a) (which is framed by reference to the “Fault” identified in the statement of claim) and the applicant’s own claim can be resolved on the facts without answering question (c). Question (b) assumes that an answer should be given in respect of the Hazard Alert Pacemakers as a class and apparently invites an “all or nothing answer”. For the reasons I have given, there are differences among the Hazard Alert Pacemakers depending upon whether a particular Pacemaker was manufactured using the yellow spool solder. I think the appropriate course is to invite submissions from the parties as to the orders that should be made at this stage of the proceedings and to give the parties an opportunity to consider the further conduct of the litigation. I wish to record that the present proceedings have been conducted by the parties in a most co-operative manner, an approach not always evident in representative proceedings. I also wish to record my gratitude to the legal representatives for the expeditious conduct of the hearing and for their most helpful written and oral submissions.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

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