Norman Bellifemini & Anor v Depuy Aust P/L & Ors

[2004] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

NORMAN BELLIFEMINI & ANOR v DEPUY AUST P/L & ORS

Reasons of Her Honour Judge Kelly

30 July 2004

DAMAGES - GENERAL PRINCIPLES - RECOVERY OF COSTS

Third defendant's application for costs on solicitor and client basis refused - second defendant's application for apportionment of costs as between first and second defendants refused - not unreasonable for third defendant to have been joined. - first defendant unable to resolve claim by second defendant for contribution in absence of third defendant.

District Court  Rule 40.05, referred to.

NORMAN BELLIFEMINI & ANOR v DEPUY AUST P/L & ORS
[2004] SADC 105

REASONS ON THIRD DEFENDANTS’ & SECOND DEFENDANTS’ APPLICATION FOR COSTS

1. On the 3^rd May 2004 I entered judgment against the first and second defendants for the plaintiff.  The claim against the third defendant was dismissed.

2. Neither the plaintiff nor the defendants disputed that the third defendant was entitled to an order for costs against the plaintiffs and the first and second defendant should pay those costs.  By consent that order was made by me on the 18^th May 2004. 

3. It remains to consider the application by the second defendant that costs as between the first and second defendant for the trial be apportioned on a 50/50 basis and further that the second defendant be awarded the costs which the second defendant is liable to pay to the plaintiff 14 days from the second defendant’s offer to the first defendant pursuant to Rule 40.05.  The second defendant had filed two offers, one on the 8^th January 2004 to accept a 15% contribution from the first defendant in satisfaction of the second defendant’s claim for contribution against the first defendant.

4. The second offer to consent to judgment was filed on the 4^th February 2004 in which the second defendant offered to contribute 70% of the plaintiff’s damages in satisfaction of its claim for contribution by the first defendant.

5. The argument advanced by the second defendant in relation to the apportionment of costs between him and the first defendant overlooks the fact that his claim against the first defendant proceeded on a quite erroneous basis until at least part way through the trial.  It was only part way through the trial that I was informed that the second defendant abandoned the basis of claim against the first defendant as pleaded and was now proceeding on a quite different basis.  The argument also overlooks the fact that the first defendant was in no position to come to any final resolution of this matter in the absence of an agreement with the third defendant.  Given the third defendant’s attitude, an attitude which was ultimately vindicated at the trial, there was never going to be a basis on which the first and third defendants could agree to contribute to the plaintiff’s damages on the basis offered by the second defendant.  The second defendant’s offers were clearly contingent on both the first and third defendant accepting equal apportionment of responsibility.  As Mr O’Loughlin pointed out during argument the situation with regard to the first defendant is quite novel.  The role of the representative at the operation in this particular case depended to a substantial extent on the professional relationship which the representative had with the second defendant.  Furthermore, the factual situation upon which any findings of liability depended was complicated by the fact that the only witness to give evidence in the entire trial was a witness called on behalf of the third defendant.  With the wisdom of hindsight it is difficult to see how either the first or third defendants could have resolved the matter in the absence of the other.

6. Accordingly under Rule 40.05(b) I find it is not proper to make the current order sought by the second defendant. 

7. As to the third defendant’s application for indemnity costs against the first and second defendants I do not consider it appropriate to accede to that application.  Whilst the third defendant was ultimately successful at the trial it could not be said on any view of the matter that the claim against the third defendant by both the plaintiff and the other two defendant’s was hopeless.  In fact, upon my understanding of the authorities, the boundaries of the hospital’s duty of care during an operation of this nature is a very blurred one and it depends in each case on the precise circumstances pertaining at that particular operation and at that particular hospital.   

8. The plaintiff was justified in joining the third defendant and in the circumstances the first and second defendants were justified in seeking contribution from the third defendant on the facts which were ultimately presented in Court.  I found that the hospital’s duty of care had not been breached.

9. Accordingly, I reject the third defendant’s application for costs on the basis of solicitor and client.

10. There will be orders as follows:-

    1.The second defendant’s application to vary the apportionment of its costs as against the first defendant on  50/50 basis will be dismissed;

    2.As to the third defendant, its costs of the action as between party and party as taxed or agreed are to be paid by the first and second defendants to the third defendant.

    3.As between the first and second defendants their respective liability for costs of the plaintiff and the third defendant is to be apportioned.  As to the first defendant 30%.  As to the second defendant 70% and in so far as either may pay more than their proportion to the plaintiff or the third defendant they and each of them should be entitled to recover the excess from the other of the two.