Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Idameneo (No 123) Pty Ltd v Dr Colin Gross [2012] NSWCA 423 Hearing dates: 26 October 2012 Decision date: 14 December 2012 Before: McColl JA at [1]
Hoeben JA at [2] and [184]
Ward JA at [183]Decision: (1) The appeal is dismissed.
(2) The cross-appeal is allowed.
(3) The orders made by Latham J, dated 17 October 2011, are set aside.
(4) In lieu thereof, the following orders are made:
(a) Judgment for the first cross-claimants (Dr Johnson and Dr Gross) against the first cross-defendant (Idameneo (No 123) Pty Ltd) on the amended first cross-claim in the sum of $377,000.
(b) The first cross-defendant to pay pre-judgment interest to be calculated pursuant to s 100 of the Civil Procedure Act 2002 on the judgment sum.
(c) Judgment for the second cross-defendants (Dr Johnson and Dr Gross) against the second cross-claimant (Idameneo (No 123) Pty Ltd) on the amended second cross-claim.
5. The appellant (Idameneo No 123) pay the cross appellants' (Dr Gross and Dr Johnson's) costs of the trial on an ordinary basis up to 14 January 2010 and thereafter on an indemnity basis.
6. The appellant (Idameneo No 123) pay the cross appellants' (Dr Gross and Dr Johnson's) costs of the appeal on an ordinary basis.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - transmission of disease to partner by patient of medical centre - successful action by partner against doctors at medical centre - cross-claims in contract and tort by doctors against operator of medical centre - content of duty of care owed by medical centre to partner of patient - nature of breach of duty by doctors - causation - failure by medical centre to maintain accurate patient records - causation - apportionment of responsibility between doctors and medical centre - contract - service agreements between medical centre and doctors - meaning of indemnity clauses in service agreements - whether breach of service agreements by medical centre and doctors - consequences of breach - circuity of action - whether principle of equitable contribution applies - measure of damages recoverable by doctors. Legislation Cited: Civil Liability Act 2002 (NSW) - s 5D(1)
Law Reform (Miscellaneous Provisions) Act 1946 - s 5
Medical Practice Act 1992 (NSW)
Public Health Act 1991 (NSW)Cases Cited: Accident Compensation Commission v Baltica General Insurance Co Ltd [1993] 1 VR 467
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR…
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- Case
- [2012] NSWCA 423
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine the content of the duty of care owed by the medical centre to Ms Gross, the nature of the breach of duty by the doctors, and the issue of causation in relation to both the doctors' and the medical centre's conduct. Further, the Court had to consider the interpretation and effect of indemnity clauses within service agreements between the medical centre and the doctors, and whether a breach of these agreements by either party had occurred. The applicability of the principle of equitable contribution and the measure of damages recoverable by the doctors were also central to the appeal.
The Court of Appeal found that the medical centre owed a duty of care to Ms Gross, and that the doctors had breached their duty of care to her. The Court also determined that the medical centre's failure to maintain accurate patient records contributed to the transmission of the disease. Regarding the cross-claims, the Court held that the indemnity clauses in the service agreements were effective and that the medical centre was liable to indemnify the doctors. The Court reasoned that the principle of circuity of action was not a bar to the doctors' recovery and that equitable contribution was not applicable in this context.
Consequently, the appeal by Idameneo (No 123) Pty Ltd was dismissed, while the cross-appeal by the doctors was allowed. The original orders made by Latham J were set aside. The Court ordered judgment for the doctors against Idameneo (No 123) Pty Ltd on their amended cross-claims in the sum of $377,000, with pre-judgment interest. Idameneo (No 123) Pty Ltd was also ordered to pay the doctors' costs of the trial and the appeal on specified bases.
Orders
Orders of the court
(1) The appeal is dismissed.
(2) The cross-appeal is allowed.
(3) The orders made by Latham J, dated 17 October 2011, are set aside.
(4) In lieu thereof, the following orders are made:
(a) Judgment for the first cross-claimants (Dr Johnson and Dr Gross) against the first cross-defendant (Idameneo (No 123) Pty Ltd) on the amended first cross-claim in the sum of $377,000.
(b) The first cross-defendant to pay pre-judgment interest to be calculated pursuant to s 100 of the Civil Procedure Act 2002 on the judgment sum.
(c) Judgment for the second cross-defendants (Dr Johnson and Dr Gross) against the second cross-claimant (Idameneo (No 123) Pty Ltd) on the amended second cross-claim.
5. The appellant (Idameneo No 123) pay the cross appellants' (Dr Gross and Dr Johnson's) costs of the trial on an ordinary basis up to 14 January 2010 and thereafter on an indemnity basis.
6. The appellant (Idameneo No 123) pay the cross appellants' (Dr Gross and Dr Johnson's) costs of the appeal on an ordinary basis.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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