E v Australian Red Cross Society - [1991] FCA 20

Re: E
And: AUSTRALIAN RED CROSS SOCIETY; AUSTRALIAN RED CROSS SOCIETY NEW SOUTH
WALES DIVISION and CENTRAL SYDNEY AREA HEALTH SERVICE
No. G759 of 1989
FED No. 20
Trade Practices - Negligence
(1991) 13 ATPR 41-085
99 ALR 601
27 FCR 310

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Trade Practices - Supply by hospital to applicant of HIV- infected blood - Blood supplied to hospital by New South Wales Division of Australian Red Cross Society - Whether respondents were each a "trading corporation" - Whether supply "in trade or commerce" - Whether the hospital was an emanation of the New South Wales Crown - Claim of implied misrepresentation amounting to misleading conduct - Reliance on implied terms as to merchantability and fitness for disclosed purpose - Whether claims made within the prescribed time.

Negligence - Adequacy of screening notices used by NSW Division in collecting blood donations - Whether respondents should have adopted surrogate testing at earlier date - Time taken to implement decision to adopt surrogate testing.

Trade Practices Act 1974 - ss4, 4B, 52, 55A, 71, 74, 82.

HEARING

SYDNEY

#DATE 8:2:1991

Counsel for the Applicant: J. Poulos, QC and M. Cashion

Solicitors for the Applicant: J.M. Caruana Kay and Barry

Counsel for the 1st Respondent: L.M. Morris, QC, J.A. Timbs, QC and A.

Robertson

Solicitors for the 1st Respondent: Arthur Robinson and Hedderwicks

Counsel for the 2nd Respondent: T.K. Tobin, QC, P. Dwyer and A.

Robertson

Solicitors for the 2nd Respondent: Tress Cocks and Maddox

Counsel for the 3rd Respondent: P.R. Garling and R. Gambi

Solicitors for the 3rd Respondent: Audrey Lee

Counsel for Attorney General P. Taylor
(NSW) Intervening:

Solicitor for Attorney General Crown Solicitor
(NSW) Intervening:

ORDER

The Application be dismissed.

The applicant pay to the respondents their costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This case concerns one of the major health problems of our time: acquired immune deficiency syndrome ("AIDS"). It is a tragic case, of AIDS contracted by the recipient of a post-operative blood transfusion. Because of its contamination, the transfusion which saved the applicant's life in 1984 threatens now to shorten his life.

The AIDS cases generally

Before dealing with this particular case, it is desirable for me to say something about the large number of AIDS claims now confronting the Court.
During the afternoon of 8 November 1989 an application was made to me in chambers by counsel and his instructing solicitor. The solicitor was about to file 30 Applications, on behalf of 30 separate clients, each seeking damages from the Australian Red Cross Society ("the Society"), the New South Wales Division of that Society ("the NSW Division") and one or more other respondents. Each of the proposed applicants, I was informed, was a person infected with the human- immuno deficiency virus ("HIV") who claimed to have become so infected as a result…

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: [1991] FCA 20
Decision Date: 08 FEBRUARY 1991

CaseChat Overview and Summary

In the matter of E v Australian Red Cross Society, the Federal Court was tasked with determining whether the Australian Red Cross Society was liable for supplying blood to a hospital which was subsequently found to be infected with HIV. The applicant, who received the infected blood, sought to hold the Red Cross Society accountable under the Trade Practices Act, arguing that the supply of the blood constituted misleading conduct. The case also explored whether the hospital, as a recipient of the blood, was an emanation of the Crown, which would have implications for the liability of the Red Cross Society.

The central legal issues before the court involved the interpretation of the term "trading corporation" under the Trade Practices Act and whether the supply of blood by the Red Cross Society to the hospital constituted a transaction "in trade or commerce." Additionally, the court had to consider whether the hospital, as the entity receiving the blood, was an emanation of the New South Wales Crown, and if the applicant's claims of implied misrepresentation and reliance on implied terms for merchantability and fitness for purpose were valid and timely.

The court found that the Australian Red Cross Society was indeed a trading corporation and that the supply of blood to the hospital was a transaction in trade or commerce. However, the court also determined that the hospital was an emanation of the Crown, which shielded the Red Cross Society from liability under the Trade Practices Act. Furthermore, the court held that the applicant's claims of implied misrepresentation and reliance on implied terms were not substantiated, and that the claims were not made within the prescribed time period.

Consequently, the court dismissed the applicant's application and ordered the applicant to pay the respondents' costs of the proceeding. The court's decision was grounded in the specific definitions and legal principles governing the Trade Practices Act and the relationship between trading corporations and the Crown.

Orders

Orders of the court

The Application be dismissed.

The applicant pay to the respondents their costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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