John William Suthern v Unilever Australia Ltd - [2008] ACTSC 75

JOHN WILLIAM SUTHERN v UNILEVER AUSTRALIA LTD
[2008] ACTSC 75 (25 August 2008)

COSTS – costs against successful party – usual order as to costs – award of damages significantly less than those sought – pre proceeding offer of settlement – nominal award of damages – consideration of disentitling conduct of party – Court Procedure Rules 2006 (ACT) – severability of the issues – appropriateness of commencing proceedings in the Supreme Court – costs necessarily and reasonably incurred – successful party entitled to benefit of costs

NEGLIGENCE– product liability – personal injury – temporary disability – causation –Trade Practices Act 1974 (Cth) – public interest in product safety

Court Procedure Rules 2006 (ACT), r 1725, r 1751, r 1754
Trade Practices Act1974 (Cth), 86(2)

Oshlack v Richmond River Council (1998) 193 CLR 72
Quirk v Bawden (1992) 111 FLR 115
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685
Lipkin Gorman (a firm) v Karpnale Ltd and another [1992] 4 All ER 409
Berrico Estate Pty Ltd v Anderson [2003] NSWCA 23
McDonald v James Hardie & Co Pty Ltd (No 2) (1998) 17 NSWCCR 178
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA No. 40678/92 (unreported, Mahoney JA, 4 July 1994)
Lenning v Alexander Proudfoot Co World Headquarters, NSWCA [1991] No. 40081/91 (unreported, Kirby P, Priestley and Clarke JJA, 22 April 1991)
AMC Caterers Pty Ltd & 1 Or v Stavropoulos [2005] NSWCA 79
Dimento v Dimento & Anor (Costs) [2007] NSWSC 1233
Sheehy v Mitchell Crane Hire Pty Ltd (1991) 102 ACTR 1; 104 FLR 96

No. SC 178 of 1999

Judge: Higgins CJ
Supreme Court of the ACT

Date: 25 August 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 178 of 1999
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:JOHN WILLIAM SUTHERN

Plaintiff

AND:UNILEVER AUSTRALIA LIMITED
Defendant

ORDER

Judge:  Higgins CJ
Date:  25 August 2008
Place:  Canberra

THE COURT ORDERS THAT:

The defendant pay the plaintiff’s costs necessarily and reasonably incurred in these proceedings, save and except those costs relating to the issue of the toxicity of liquid mercury and the ongoing injury to the plaintiff.

The plaintiff’s costs are to include the costs of this application.

This is a most unusual case. The plaintiff claimed damages for personal injury arising from the ingestion by him of liquid mercury contained in ice cream manufactured by the defendant.

That ingestion occurred, it has been found, on 13 and 14 June 1996.

A hearing took place before Crispin J in November 2005, July and September 2006 and May-June 2007. It occupied, wholly or in part, 45 days of hearing time.

The plaintiff had suffered considerably in the period following that initial ingestion. Had that ongoing damage been causally related to the ingestions found to have occurred the monetary damages would have been considerable.

However, on 28 September 2007, Crispin J delivered judgment for the plaintiff…

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: [2008] ACTSC 75
Decision Date: 25 August 2008

CaseChat Overview and Summary

The plaintiff, John William Suthern, sued Unilever Australia Ltd for negligence and breach of statutory duty, claiming damages for personal injury and temporary disability caused by a product supplied by the defendant. The dispute was heard and determined by the Supreme Court of the Australian Capital Territory. The defendant, Unilever Australia Ltd, was alleged to have supplied a product that was defective and dangerous, leading to the plaintiff's injuries. The legal issues in the case centred on whether the defendant was liable for the plaintiff's injuries, the extent of the damages claimed, and the appropriate costs to be awarded.

The court considered whether the defendant's conduct was such that it should be deprived of the usual order for costs. The plaintiff had sought significant damages, but the award was substantially lower. The court also examined the defendant's offer of settlement made before the proceedings and whether this influenced the damages awarded. The court further deliberated on the disentitling conduct of the parties, the applicable court procedure rules, and the appropriateness of the case being heard in the Supreme Court. Additionally, the court assessed whether the issues in the case were severable and whether the plaintiff was entitled to costs for the proceedings, excluding certain costs related to the toxicity of liquid mercury and the plaintiff's ongoing injury.

The court found that the defendant was liable for the plaintiff's injuries and awarded the plaintiff damages. However, the award was significantly less than the amount sought. The court held that the defendant should pay the plaintiff's costs necessarily and reasonably incurred in the proceedings, except for those related to the toxicity of liquid mercury and the ongoing injury. The plaintiff's costs were to include the costs of the application. The court also determined that the issues in the case were severable and that the proceedings were appropriately commenced in the Supreme Court. The court emphasised the public interest in product safety and the importance of holding manufacturers accountable for defective products.

Orders

Orders of the court

1. The defendant pay the plaintiff's costs necessarily and reasonably incurred in these proceedings, save and except those costs relating to the issue of the toxicity of liquid mercury and the ongoing injury to the plaintiff.

2. The plaintiff's costs are to include the costs of this application.

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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