Di Carlo v Dubois - [2003] QSC 435

SUPREME COURT OF QUEENSLAND

CITATION: Di Carlo v Dubois & Ors [2003] QSC 435
PARTIES: SALVATORE DI CARLO
(plaintiff)
v
DR PHILIP JAMES DUBOIS
(first defendant)
PHILIP DUBOIS (MEDICAL) PTY LIMITED
ACN 010 673 864
(second defendant)
DENNIS RICHARD OSBORNE, PHILIP JAMES
DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH
KOTECHA, GARY EDWARD O’ROURKE, MARK
JAMES READY, PETER STOREY, CHARLES BRUCE
LEIBOWITZ, PETER CHARLES LUSH, NICHOLAS
DAUNT, DAVID ALEXANDER NOBLE AND PETER
FERGUS LEGH trading under the firm name of style of
QUEENSLAND X-RAY SERVICES
(third defendant)
DR MICHAEL CORONEOS
(fifth defendant)
FILE NO/S: S1281 of 1996
DIVISION: Trial Division
PROCEEDING: Civil Trial – Further Orders
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 18 December 2003
DELIVERED AT: Brisbane

HEARING DATE:

21 November 2002; 22 November 2002; 25 November 2002; 26 November 2002; 27 November 2002; 28 November 2002; 29 November 2002
JUDGE: Mackenzie J

ORDER:

1.

With respect to the first trial there be no order as to costs thrown away by its adjournment
2. Otherwise

(a)

the plaintiff pay the first, second and third defendants’ costs of and incidental to the action between them to be assessed

(b)

the fifth defendant pay the plaintiff’s costs of and incidental to the action between them to be assessed

CATCHWORDS: Bullock v London General Omnibus Company [1907] 1 KB
264
Gould v Vaggelas (1984) 58 ALJR 560
Hong v A & R Brown Ltd [1948] 1 KB 515
The Svein Jarl (1923) 129 LT 255
COUNSEL: N M Cooke QC for the plaintiff
R V Hanson QC, with P L Feely, for the first, second and
third defendants
The fifth defendant appeared on his own behalf
SOLICITORS: Baker Johnson for the plaintiff
Flower and Hart for the first, second and third defendants
The fifth defendant appeared on his own behalf

MACKENZIE J: The issues to be addressed in these reasons are the costs of the aborted first trial and of the second trial.
First trial and appeal
The first trial, before a jury, was aborted on the fourth day following leave being granted to the plaintiff to amend the statement of claim and a successful application to the trial judge to discharge the jury and adjourn the trial. The basis of that application was that the amendment raised the prospect of a conflict between the first to third defendants and the fifth defendant. The trial judge made an order that the plaintiff pay the defendant’s costs thrown away, which were to comprise costs occasioned by the amendment and the costs of four days of trial, on an indemnity basis.
On appeal the Court of Appeal set aside the learned trial judge’s orders and relevantly ordered as follows:

“1. The orders as to costs made below be set aside and in lieu
thereof order that:

(a) the appellant pay the defendants’ costs incurred in consequence of the amendment to the statement of claim … ;
(b) the costs of the four days of trial be reserved to the judge who hears the new trial of the action.”

The judgment of the Court of Appeal suggests that the pleadings were ambiguous. There was a contention by the defendants that the reply set up a case inconsistent with the statement of claim. An application to amend the statement of claim to allege lack of consent and alternatively that had the plaintiff been warned he would not have undergone the procedure involving the use of contrast was accepted by the learned trial judge as raising a situation of conflict between the first to third defendants on the one hand and the fifth defendant on the other. In the circumstances separate representation was required and therefore the trial was adjourned although the learned trial judge had ruled that the defendants had not been surprised by the amendment to the statement of claim to conform to the reply.
The critical passage of the Court of Appeal’s judgment for present purposes is in the following paragraphs:
“[30] There seems to have been a bona fide misunderstanding between the parties about the case that was being run and met. If, as Mr Cooke contends, the allegations in the reply were only to meet the defence of the non-materiality of the risk it is unfortunate that there was no clearer expression of it. However, the letter of 10 August, paragraph 2 of the notice to admit facts, the affidavit of Mr Tregenza and the reply reveal issues of potential conflict which were exposed well before the trial. Mr Williams contended, both before the learned trial judge and this court, that those matters could safely be ignored because there was no conflict of interests until they were crystallised into a pleading. That seems, with respect, a rather sanguine approach. The separate responsibility of each group of defendants for the appellant’s injury was always an issue and the potential conflict between Dr Coroneos and Dr Dubois plain enough even when confined to informed consent.
[31] His Honour was faced with an intimation that defence counsel and solicitors may have felt constrained to withdraw altogether from the trial. He had already ruled that the defendants were not surprised by the amendments which incorporated the reply. But given the position taken by defence counsel on instructions it is not surprising that he discharged the jury and adjourned the trial. His discretion to do so cannot be said to have miscarried. However the appropriate course, in my view, was to have reserved the question of the costs lost as a consequence of the adjournment until the issues giving rise to the adjournment had been the subject of evidence or, at least, more fully ventilated.”
The plaintiff argued in his written submissions that it was apparent before the amendment to the pleading was sought that there was a potential for conflict. The fifth defendant’s evidence as to what he had told the insurers at an early stage showed that this was so. It was submitted that an order for costs of the adjourned trial in his favour was justified. At worst no order for costs should be made in respect of the adjournment of the trial.
The first to third defendants submitted that although the evidence of the fifth defendant at trial was to the effect stated, there was no way that the truth of that evidence could be established by the first to third defendants because the fifth defendant had not waived privilege in respect of any statements he may have given. It was therefore a matter of inference as to what his instructions were.
It can be interpolated at this point that the fifth defendant, in his written submissions as to costs, denied refusing to waive privilege. What happened is documented in correspondence submitted with his written submissions. The solicitors who acted for the first to third defendants at trial before me tendered a draft authority to the fifth defendant for signature by him for the purpose of obtaining relevant documents from the solicitors who had acted for all defendants at the first trial. He responded to the effect that upon confirmation that the insurer would be indemnifying him against damages and appealing against the judgment in the second proceedings on his behalf, he would be prepared to make all material to which he had access available.
The practical effect on the first to third defendant, however described, is that there was no additional material available on the issue in the form of documents predating the first trial with one exception. There is a letter dated 7 July 1997 from the solicitors who acted at the first trial, tantalisingly referring to an enclosed draft record of interview and requesting the fifth defendant to make suitable amendments and additions necessitated by the poor quality of the recording of their discussion. The record of interview is not included in the bundle of documents. If one were to speculate, perhaps the explanation given would be it was sent back to the solicitors without retaining a copy.
The thrust of the first to third defendants’ submission is that the starting point is that experienced legal representatives would not have got to the point of beginning a trial if there was a conflict of evidence on vital matters between clients. It was submitted that it should be inferred that there was not a dispute at that time that the fifth defendant had requested, and the first defendant caused to be administered, contrast medium. Notwithstanding the terms of the Reply, which alleged the fifth defendant had failed to inform the other defendant that only a plain scan was required, it should be inferred from the retention of common representation that there was no change in the fifth defendant’s instructions that an enhanced scan had been ordered. The legal representatives were aware of the terms of the reply and that it departed from the statement of claim but were content to use it as going to the plaintiff’s credit.
Then in a submission objected to strenuously by the plaintiff and the fifth defendant, there was an allegation of collusion between the plaintiff and the fifth defendant subsequent to the original instructions being given. I did not find it necessary to speculate about the reasons for the amendment of the fifth defendant’s defence to the effect that there had been a common understanding between him and the plaintiff that only a plain scan was necessary. I find no need to delve into the question further for present purposes. There was substantial discussion in his submission of his instructions prior to the first trial, but in the absence of informative documents predating the first trial, it is not possible to decide issues of credit raised in the submissions.
The fifth defendant’s submissions asked for a number of things. A substantial part of the submissions contained criticisms of the judgment in the second trial with a view to requesting that the findings be revised and the case reopened. With particular reference to paragraph four of the submissions it is not possible to reopen the trial. Any criticisms of the judgment could only be ventilated in the Court of Appeal. An appeal was filed, but after the fifth defendant advised the Court of Appeal that he did not wish to continue with it, it was dismissed [2003] QCA 476. There is also no basis for making the order requested in paragraph 4.2 or for taking the action requested in paragraph 4.3.
Notwithstanding the argument presented, I am satisfied that the analysis by White J in the Court of Appeal, quoted above, remains valid. In my view, each party should bear its own costs thrown away by the abandonment of the first trial.
Costs of second trial
The second trial was heard without a jury. Judgment was given in favour of the plaintiff against the fifth defendant but his action against the first to third defendants was dismissed. With respect to costs of the second trial, prima facie the first to third defendants are entitled to their costs against the plaintiff and the plaintiff is entitled to his costs against the fifth defendant. The plaintiff did not contend otherwise but sought a Bullock order enabling him to recover costs ordered to be paid to the first to third defendants to be recovered by him from the fifth defendant.
The fifth defendant submitted that the first to third defendants should be ordered to pay his costs and costs he may be ordered to pay to the plaintiff. Given the terms of the judgment there is no basis for making such an order. The only remaining issue is whether a Bullock order should be made against him.
Bullock Order
A Bullock order is one which takes its name from Bullock v London General Omnibus Company [1907] 1 KB 264. Its effect is that where a plaintiff succeeds against one of two defendants and the plaintiff is to pay the costs of the defendant against whom he fails he may add them to his own and recover them from the defendant against whom he has succeeded. The order is a discretionary one and whether or not such an order should be made is governed initially by whether it was reasonable for the plaintiff to join the successful defendant. However that fact does not automatically entitle the plaintiff to an order. If, in the opinion of the court it is not reasonable that the unsuccessful defendant should be penalised by such an order it will not be made (Gould v Vaggelas (1984) 58 ALJR 560, 566; Hong v A & R Brown Ltd [1948] 1 KB 515). Another matter that may need to be taken into account is that a case where there is a doubt as to which of the two parties has been negligent may point more strongly to such an order being made than a case where the cause of action is based on specific acts of negligence individual to each party (The Svein Jarl (1923) 129 LT 255).
Prior to the amendment being sought, the basis of liability alleged in the case of the fifth defendant was particularised as being that the fifth defendant:
(a) failed to warn the plaintiff of the risks associated with the injection of
contrast medium;
(b) failed to warn the plaintiff of the risk of anaphylactic reaction to the
contrast medium;
(c) failed to ensure that the first defendant warned the plaintiff of those
matters; and
(d) failed to give the first defendant a history of the plaintiff’s health.
As against the first defendant and the second defendant company which was associated with him it was alleged that he:
(a) failed to advise the plaintiff that he would require an injection of contrast
medium;
(b) failed to warn the plaintiff of the risks associated with injection of the
contrast medium;
(c) failed to warn the appellant of the risks of anaphylactic reaction to the
contrast medium;
(d) failed to obtain a history of the plaintiff’s health from him;
(e) failed to obtain a history of the plaintiff’s health from the fifth defendant;
and
(f) failed to instruct the radiographer to warn the appellant of the risks.
While they have elements that reflect one another, they are distinct and several allegations against the respective defendants. It is not a case where it is alleged that one or other was responsible for any particular breach of duty and it was necessary to take action against all of them to ensure that the appropriate defendant is made liable. It is beyond dispute that it was not an unreasonable option open to the plaintiff to rely on breaches of duty by the respective plaintiffs to make out a case of liability. However the question is whether it is a case where typically a Bullock order should be made. I have come to the conclusion that in the circumstances of the case a Bullock order should not be made. The action against the fifth defendant, which succeeded, was based on that defendant’s specific omissions, which were distinct from those alleged against the other defendants. In the circumstances there is no compelling reason why the fifth defendant, who is already liable in costs to the plaintiff in respect of the finding of liability against him, should also bear the costs of what was essentially a failed case against the first three defendants based on separate and distinct breaches of duty.
On the basis of what has been said above, the following are the orders:

1.

With respect to the first trial there be no order as to costs thrown away by its adjournment.
2. Otherwise

(a) the plaintiff pay the first, second and third defendants’ costs of and incidental to the action between them to be assessed.
(b) the fifth defendant pay the plaintiff’s costs of and incidental to the action between them to be assessed.

(a)	the plaintiff pay the first, second and third defendants’ costs of and incidental to the action between them to be assessed
(b)	the fifth defendant pay the plaintiff’s costs of and incidental to the action between them to be assessed

CATCHWORDS:	Bullock v London General Omnibus Company [1907] 1 KB 264 Gould v Vaggelas (1984) 58 ALJR 560 Hong v A & R Brown Ltd [1948] 1 KB 515 The Svein Jarl (1923) 129 LT 255
COUNSEL:	N M Cooke QC for the plaintiff R V Hanson QC, with P L Feely, for the first, second and third defendants The fifth defendant appeared on his own behalf
SOLICITORS:	Baker Johnson for the plaintiff Flower and Hart for the first, second and third defendants The fifth defendant appeared on his own behalf

(a)	the plaintiff pay the first, second and third defendants’ costs of and incidental to the action between them to be assessed.
(b)	the fifth defendant pay the plaintiff’s costs of and incidental to the action between them to be assessed.