Ellings v Farrelly and Wadley

[2007] TASSC 89

[2007] TASSC 89

CITATION:              Ellings v Farrelly and Wadley [2007] TASSC 89

PARTIES:  ELLINGS, Renai Elizabeth
  v
  FARRELLY, Matthew

WADLEY, Malcolm

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  101/2001
DELIVERED ON:  12 November 2007
DELIVERED AT:  Hobart
HEARING DATES:  17 September 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Torts – Negligence – Road accident cases – Actions for negligence – Apportionment of damages – Contribution proceedings – Indemnification.

Wrongs Act1954 (Tas), s3.
Supreme Court Rules 2000 (Tas), r211.
Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552; Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333, followed.
Aust Dig Torts [107]

REPRESENTATION:

Counsel:
             Plaintiff:  No Appearance
             First Named Defendant:                 K E Read
             Second Named Defendant:             No Appearance
Solicitors:
             Plaintiff:  No Appearance
             First Named Defendant:                 Temple-Smith Partners
             Second Named Defendant:             No Appearance

Judgment Number:  [2007] TASSC 89
Number of Paragraphs:  19

Serial No 89/2007
File No 101/2001

RENAI ELIZABETH ELLINGS v MATTHEW FARRELLY
and MALCOLM WADLEY

REASONS FOR JUDGMENT  SLICER J

12 November 2007

1. The plaintiff was struck and injured by a motor vehicle driven by the first defendant.  On 8 April 2000, the plaintiff was standing next to the stationary motor vehicle talking to its driver.  The second defendant approached the driver, threatening him with violence, claiming some previous personal wrongdoing.

1. The plaintiff, in her statement of claim, alleged:

"4Immediately following the approach of the Second Named Defendant to the vehicle, a physical altercation ensued between the Second Named Defendant and the First Named Defendant.

5During the course of the physical alteration [sic] between the Second Named Defendant and the First Named Defendant, the First Named Defendant suddenly and without warning drove the vehicle forward.

6As a result of the First Named Defendant driving the vehicle forward, the Plaintiff was knocked to the ground and then run over by the vehicle ('the accident').

7As a result of the accident the Plaintiff has suffered personal injuries and has incurred loss and damage."

1. She claimed the first defendant to be negligent in that:

"(a)Failed to give any or any proper warning to the Plaintiff that the vehicle was to be driven forward.

(b)Failed to ensure that the Plaintiff was standing clear of the vehicle when he drove it forward.

(c)When driving the vehicle forward, failed to maintain close observation of the position of the Plaintiff.

(d)Drove the vehicle forward without first ascertaining or ensuring that it was safe to do so.

(e)Drove the vehicle forward when it was unsafe and/or dangerous to do so in the circumstances.

(f)Failed to stop the vehicle in time to avoid it running over the Plaintiff.

(g)Failed to keep any or proper [sic] look-out.

(h)Failed to warn of his intention to drive the vehicle forward by indicating or otherwise informing the Plaintiff of such intention; and

(i)Drove at an excessive speed."

1. She claimed the second defendant to be negligent in that:

"(a)Caused or encouraged the First Named Defendant to drive the vehicle forward in the circumstances referred to in paragraph 8 (a) to (i) inclusive of this Statement of Claim.

(b)Failed to ensure that the Plaintiff was standing free of the vehicle before involving himself in the physical altercation with the First Named Defendant, when he knew, or ought to have known, that the Plaintiff would thereby be exposed to risk of injury; and

(c)Failed to have proper regard for the safety of the Plaintiff."

1. The writ and statement of claim were served on both defendants.  The second defendant neither lodged a notice of appearance nor delivered a defence.  On 21 June 2001, the plaintiff obtained a default interlocutory judgment for damages to be assessed.  In August 2001, the first defendant issued a notice of contribution to the second defendant, claiming the negligence of the second defendant to have been:

"Caused the Firstnamed Defendant to drive the motor vehicle forward by assaulting the Firstnamed Defendant.

Failed to ensure that the Plaintiff was standing free of the vehicle before immediately involving himself in the physical alteration [sic] between the Defendants when he knew or ought to have known that the Plaintiff would be exposed to injury."

1. The plaintiff had claimed, and been paid, scheduled benefits from the Motor Accidents Insurance Board which in the process also took over the conduct of these proceedings.  The action by the plaintiff against the first defendant was settled by agreement recorded in a deed dated 18 July 2006 for the amount of $35,000 and costs to be agreed or taxed.  On 25 September 2006, the first defendant issued a statement of claim in the contribution proceedings.  The statement of claim recited the deed of settlement and repeated the allegations of negligence, and claimed indemnification on the grounds that:

"… the Plaintiff's personal injuries, loss and expense were contributed to by the negligent conduct by the Second Named Defendant."

1. On 5 October 2006, a licensed private inquiry agent served the second defendant personally with a copy of:

(a)the statement of claim dated 25 September 2006;

(b)defence of the first defendant dated 2 May 2001;

(c)the plaintiff's particulars of claim dated 30 March 2004;

(d)notice of hearing advising that the matter was listed for hearing at the Supreme Court Burnie at 9.45am on Friday, 3 November 2006.

1. The process server recognised the person served as Malcolm Wadley from previous instances of service. 

1. The second defendant did not appear on 3 November and the matter was adjourned until 1 December.  The Master ordered:

"2    A notice of hearing for the resumed directions hearing is to issue by the Registrar and is to contain the following endorsement:

To: Malcolm Wadley

take notice that at this directions hearing the Court will be asked to make an order that the contribution proceedings be tried by affidavit and that those proceedings be set down forthwith for hearing.  If you wish to participate at the hearing of the contribution claim against you, you must appear in person or by your solicitor at the resumed directions hearing at the time stated namely 9.15 am on Friday, 1 December 2006.  If you fail to attend at that time it will be assumed that you do not wish to participate and the hearing will be set down and conducted in your absence and a judgment may be entered against you without further notice to you.

3     The Registrar is to send that notice to the practitioners for the first defendant.

4     The practitioners for the first defendant are to cause that notice to be personally served on the second defendant."

1. On 27 November 2006, the second defendant was personally served with the notice of hearing and a copy of the record of proceedings sheet of 3 November 2006 in accordance with the directions of the Master.  The second defendant did not appear on 1 December.  The Master ordered trial by affidavit with the hearing to be set down for trial via video link from Burnie.  The matter came back to the Master at a video conference on 3 August 2007 and then on notice to this Court on 17 September 2007 for hearing. 

1. Initially I had concerns about the nature of "contribution" proceedings and the suggestion that the Court might be required to determine the degree of contribution required as between the defendants.  That question required the Court to determine the issue of causation in a manner consistent with the principles stated by the High Court in March v EH & MH Stramere Pty Ltd (1991) 171 CLR 506. Given the circumstances of the accident, in particular the first defendant's action in driving off to escape an assault while the plaintiff was close by or possibly still alongside the vehicle door, the question was whether the defendant had, in law, caused the injury which, in turn, might involve the issue of foreseeability (Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40; New South Wales v Fahy (2007) 81 ALJR 1021; Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568; Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89). I have concluded that it is not necessary to consider that question since this case involves matters of procedure and indemnity, rather than liability arising through "cause and effect". The second defendant has chosen not to defend the original proceedings, contest the claim for contribution, or attend any hearing, despite clear and proven notice. There will be a judgment against him.

1. The Wrongs Act 1954, s3, relevantly provides:

"(1)  Where damage is suffered by a person as the result of a wrongful act ¾

…

(d)a person may recover contribution or indemnity from another person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage by settling with the person by whom the damage was suffered and thereafter commencing or continuing an action against the other person, in which case the first-mentioned person shall satisfy the court that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.

…

(3)  A release of, or accord with, one person granted or made by a person by whom damage is suffered ¾  

(a)does not discharge another person unless the release so provides; and

(b)relieves the person to whom it is granted or with whom it is made from liability to make contribution to another person."

1. The Supreme Court Rules 2000, r211(1) and (2), state:

"(1)  A defendant in an action may file and serve on another defendant in that action a notice claiming contribution, indemnity or any relief or remedy relating to, or connected with, the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff.

(2)   A defendant in an action may file and serve on another defendant in that action a notice specifying any question or issue relating to, or connected with, the original subject matter which ¾

(a)is substantially the same as a question or issue arising between the plaintiff and the defendant making the claim; and

(b)should properly be determined not only as between the plaintiff and the defendant making the claim, but as between the plaintiff and that defendant and another defendant, or between any of them."

1. The first defendant is entitled to indemnification.  The second defendant has chosen not to contest liability to the plaintiff.  The pleadings and the affidavit material satisfies the Court that the first defendant would have been liable to the plaintiff.  Apportionment, as between the defendants, has, in turn, not been contested by the second defendant.  The only remaining task for the Court is to determine whether the terms of the settlement deed were reasonable (Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333). In the earlier appeal of Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552, the Full Court had rejected an argument that the terms of a settlement were reasonable and that the onus shifted to a defendant seeking to obtain contribution to show that such terms were reasonable. In that earlier appeal, Zelling AJ had stated:

"With great respect to the learned judge, I do not read Wells J's judgment as creating any such presumption and it would be surprising if it did. The position is that the defendant has to prove quantum as in any other action. If the third party is foolhardy enough to put the defendant to strict proof and the judge hearing the third party proceedings finds that the settlement was reasonable, the third party will be mulcted in costs. As Wells J pointed out in the passage cited, the judge need not come to the exact figure of the settlement. It is sufficient if the settlement was within the limits of reasonable tolerance, looked at as a settlement." [Emphasis added.]

1. In considering the import of that statement, Brennan J (as he then was) remarked in the course of the application for leave to appeal:

"Construing this passage as we think it should be construed, these propositions are correct. If His Honour meant no more than that the settlement of the action between the plaintiff and the defendant tortfeasor did not create any presumption of law as to the reasonableness of the amount of the settlement, we would respectfully agree with his statement. If, however, His Honour meant that a settlement is no evidence at all of the reasonableness of the amount agreed between the plaintiff and the defendant and that a defendant claiming contribution must always call witnesses to establish that the amount paid to the plaintiff was reasonable, we would respectfully disagree. Despite the ambiguity in this passage in the leading judgment, we do not think that this case is a suitable vehicle for the grant of special leave. The trial judge approached the case on the basis that the settlement created a presumption of reasonableness which the third party was required to rebut. He held that the evidence upon which the third party had relied had failed to rebut this presumption. It seems clear that the learned trial judge thought that the presumption arose as a matter of law. In doing so he was in error, as the Full Court held, and the matter has been rightly remitted back to him. A new hearing is therefore unavoidable. On that hearing, the question for the trial judge will be whether the settlement was reasonable, having regard to the evidence tendered, including any inferences he draws from the circumstances of the settlement itself." [Emphasis added.]

1. It is not necessary to here consider the difference between Perry J (in dissent) and the majority, King CJ and Millhouse J, in the second appeal, as to whether a party can adduce evidence not used but which was reasonably available at the time of the original hearing.  Here on the evidence adduced at the hearing, I am satisfied that the amount of the settlement recorded in the deed of agreement dated 18 July 2006 in the sum of $35,000 was "just and equitable" in the sense adopted by the majority in Saccardo (No 2) (supra).

1. The evidence relied upon has been:

(1)the affidavits of service of Terrence Peter Radford sworn on 6 October 2006 and 28 November 2006;

(2)affidavit of Renai Elizabeth Ellings sworn on 18 April 2007 and annexures;

(3)affidavit of Lisa Bingley sworn on 7 August 2007 and annexures;

(4)interlocutory judgment entered on 25 June 2001 in action 101/2001;

(5)record of proceedings of 3 November and 1 December 2006.

1. Regard has been had to the writ, statement of claim, defence of the first defendant and notice of claim and statement of claim in these proceedings.

1. The first defendant is entitled to be indemnified by the second defendant for the amount of $35,000 and for such costs taxed as were reasonably agreed.  In the event that such costs were agreed, counsel is invited to suggest the appropriate terms of the second part of the order.