HEARING DATE(S): 29 August 2000, 30 August 2000, 31 August 2000, 1 September 2000, 4 September 2000, 5 September 2000, 6 September 2000, 7 September, 8 September 2000
JUDGMENT DATE: 24/11/2000
PARTIES: Sonya Lee Moylan, Margaret Ann Lane, Margaret Orders, Brenda Southren, Sharon Gai Robertson, Fiona Mary Denzin, Karen Cynthia (Tabbah) Ottaway, Deborah Lea Gentle and Wendy Janene Lee - Appellants The Nutrasweet Company, Monsanto Australia Limited, SCI Corp and G D Searle & Co - Respondents
JUDGMENT OF: Sheller JA Beazley JA Giles JA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
COUNSEL: Appellants - P Cashman/R Gilsenan Respondents - B W Walker SC/CB Loveday/SS Clark
SOLICITORS: Appellants - Maurice Blackburn Cashman Respondents - Clayton Utz
CATCHWORDS: COURTS AND JUDGES - Judgments - Duty to give reasons - Adequacy of reasons - Damages claim for personal injury - Where dispute involves an intellectual exchange between expert witnesses - Where judgment largely consisted of parties’ submissions - Where delay in giving judgment. LIMITATION OF ACTIONS - Extension of limitation period - Exercise of discretion under Limitation Act 1969, s60G - Onus - Requirement of whether "just and reasonable" to grant extension. PROCEDURE - Appeal and new trial - Whether Court of Appeal should give directions as to form of new trial. PROCEDURE - Costs - Indemnity costs - Where defendants conceded to new trial during appeal - Costs of appeal grounds not argued. - D
DECISION: (a) The defendants to pay the plaintiffs’ costs of the liability appeal on grounds 2 and 5 of the synopsis of grounds of appeal but to have a certificate under the Suitors’ Fund Act 1951 if so qualified (b) The costs of the hearing of the liability proceedings before Bruce J will be in the discretion of the Judge re-hearing the proceedings or in the discretion of a Judge of the Common Law Division (c) The plaintiffs to pay the defendants’ costs of the limitation appeals but to have a certificate under the Suitors’ Fund Act if so qualified (d) The costs of the hearing of the limitation applications before Bruce J will be in the discretion of the Judge re-hearing those applications or in the discretion of a Judge of the Common Law Division.
JUDGMENT:
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40175/99, 40176/99,
40177/99,40178/99, 40179/99,
40180/99, 40181/99, 40182/99, 40183/99, 40174/99
SHELLER JA BEAZLEY JA GILES JA
Friday, 24 November 2000
MOYLAN & ORS v THE NUTRASWEET COMPANY & ORS
JUDGMENT
SHELLER JA:
INTRODUCTION
The nine plaintiffs in the actions the subject of…
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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AGLC
Moylan v Nutrasweet Co [2000] NSWCA 337
Case
[2000] NSWCA 337
Decision Date
CaseChat Overview and Summary
The case of *Moylan v Nutrasweet Co* involved nine plaintiffs who brought personal injury claims against the defendants concerning the use of an intrauterine device. The dispute centred on whether the use of the device caused the plaintiffs to contract Pelvic Inflammatory Disease (PID), leading to infertility and ectopic pregnancies, and whether the defendants had acted in knowing disregard of the plaintiffs' health and welfare, thus entitling them to exemplary damages. The matter came before the Court of Appeal after a judgment by Bruce J.
The Court of Appeal was required to determine several key issues. Firstly, it had to consider the adequacy of the reasons provided by Bruce J in his judgment, particularly given the extensive length of the judgment and its heavy reliance on the parties' submissions, as well as the delay in its delivery. Secondly, the Court had to address the exercise of discretion under section 60G of the *Limitation Act 1969* (NSW) regarding the extension of limitation periods for the plaintiffs' causes of action, including the onus of proof and whether it was "just and reasonable" to grant such extensions. Finally, the Court had to decide on the appropriate orders regarding the costs of the appeals and the new trials.
The Court of Appeal allowed the appeals against the judgment and orders of Bruce J in the liability proceedings and set aside those judgments and orders, ordering new trials in each of the nine actions. Similarly, the appeals against the orders extending the limitation periods were allowed, the orders were set aside, and new trials were ordered for the applications to extend those periods. The Court imposed no conditions or directions on the conduct of the new trials. The Court also made specific orders regarding the costs of the appeals, with the defendants to pay the plaintiffs' costs of the liability appeal on certain grounds, and the plaintiffs to pay the defendants' costs of the limitation appeals. The costs of the new liability and limitation proceedings were left to the discretion of the judges who would hear those matters.
Orders
Orders of the court
(a) The defendants to pay the plaintiffs’ costs of the liability appeal on grounds 2 and 5 of the synopsis of grounds of appeal but to have a certificate under the Suitors’ Fund Act 1951 if so qualified
(b) The costs of the hearing of the liability proceedings before Bruce J will be in the discretion of the Judge re-hearing the proceedings or in the discretion of a Judge of the Common Law Division
(c) The plaintiffs to pay the defendants’ costs of the limitation appeals but to have a certificate under the Suitors’ Fund Act if so qualified
(d) The costs of the hearing of the limitation applications before Bruce J will be in the discretion of the Judge re-hearing those applications or in the discretion of a Judge of the Common Law Division.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
After hearing argument on these matters, on 8 September 2000 the Court made the following orders:“1.Appeals allowed against the judgment and orders of Justice Bruce of 22 February 1999 in favour of the defendants in each of the nine actions the subject of those appeals;2. Set aside the judgment and orders;3. In each of the nine actions order a new trial;4.If required leave to the defendants to appeal from the judgment of Justice Bruce of 22 February 1999 and his Honour’s orders of 4 March 1999 extending the limitation periods for the plaintiffs’ causes of action under the Limitation Act 1969;5.Appeals against the judgment and orders allowed;6.Set aside the judgment and orders extending the limitation periods;7.Order new trials of the plaintiffs’ applications to extend the limitations periods;8. All questions of costs reserved;9. Reasons to be given later.The Court imposes no conditions on and gives no directions about the conduct of the new trials.”BRUCE J’S JUDGMENT IN THE LIABILITY PROCEEDINGS Despite the defendants’ concession in the liability appeal, it is necessary to outline as briefly as possible the contents of Bruce J’s judgment in the liability proceedings. The judgment was divided into six numbered parts each of which contained sub-headings. These six parts were:1.“INTRODUCTION” (43 pages). It included a sub-heading “SUMMARY OF PLAINTIFFS’ CASE”;2.“PELVIC INFLAMMATORY DISEASE (PID)” (22 pages);3. “CAUSATION” (33 pages);4. “PROBABILITY OF CAUSATION” (146 pages). It included three sub-headings, “4.1 Epidemiology”, “4.2 Scientific Analysis”, and “4.3 Clinical Observations”;5. “WARNINGS” (1 page);6. “CONCLUSION” (2 pages).I shall refer to these parts as “Part 1”, “Part 2” and so on. In all, Bruce J’s judgment covered 247 pages, one of which was numbered but blank. By far the greater part consisted of transcriptions from the written submissions of the plaintiffs and the defendants. The plaintiffs’ written submissions included “Summary of Plaintiffs’ Case”, “Plaintiffs’ Submissions” and “Plaintiffs’ Closing Address”.PART 1: “INTRODUCTION” At the beginning of this part, Bruce J described the use of IUDs and how they were developed and marketed. Bruce J explained how the nine plaintiffs were selected. Some of the nine were parous, that is to say they had already borne children at the time they used the Cu-7. Some had documented string retractions where the polypropylene string attached to the IUD retracted from the vagina into the uterus after the device had been inserted. Some plaintiffs had an ectopic pregnancy or pregnancies. One had a septic abortion. All but one suffered either complete infertility or impaired fertility. Bruce J said:“The plaintiffs’ case was in essence that use of the devices caused the plaintiffs to contract Pelvic Inflammatory Disease (PID) causing damage to their reproductive organs and thus either permanent or partial infertility and, in some instances, damage to the fallopian tubes resulting in ectopic pregnancies.They submitted that the use of the devices put the users at greater risk of the introduction of infection into the uterine cavity or the fallopian tubes or to the ovaries than was the risk to non-users of the devices.The plaintiffs claimed exemplary damages on the basis that the defendants acted in knowing and contumelious disregard of their rights, health and welfare.The questions to be determined are:1.Did the plaintiffs contract PID?2.If so, was use of the defendants’ products causally connected with the contraction of PID by the plaintiffs?3.If so, how were the defendants’ products causally connected?4.Did that connection or connections or any conduct of the defendants or any of them constitute a breach or breaches of the duty of care owed by the defendants to the plaintiffs?5.If there was a breach, did the defendants or any of them act in knowing and contumelious disregard of the plaintiffs’ rights, health and welfare?”As has been seen, Bruce J had answered the first of the questions posed in the affirmative.