Rowan v Cornwall & Ors (No 7) No. Scciv-90-1481

[2003] SASC 49

ROWAN v CORNWALL & ORS (No 7)
[2003] SASC 49

Civil

DEBELLE J.

Belated Applications for Contribution

1. On 21 June 2002 I delivered reasons for judgment and awarded damages to the plaintiff.  The total award of damages payable to the plaintiff was $340,425.10 made up as follows:

Damages for injury to reputation etc	$225,000.00
Damages for misfeasance	25,000.00
Economic Loss
-       Loss of earnings 1988 to 1989	44,919.00
-       Compensation for reduced earnings Oct - Dec 1989	900.00
-       Loss of income while establishing private practice	10,000.00
305,819.00
Medical and other fees	20,950.10
Pharmaceutical costs	650.00
Removal costs	13,006.00
Total	$340,425.10

I later heard the parties as to the orders to give effect to these reasons and made the necessary orders on 12 July 2002.  For present purposes, it is necessary to note only paras 1 to 6 of the orders:

“1That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $259,606.10 damages.

2That the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants are jointly and severally liable to pay to the plaintiff the sum of $175,000.00 interest on the amount of $259,606.10 referred to in paragraph 1 of this order.

3That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $55,819.00 damages.

4That the second, third, fourth, seventh, eighth, ninth, tenth and twelfth defendants are jointly and severally liable to pay the plaintiff the sum of $70,235.00 interest on the amount of $55,819.00 referred to in paragraph 3 of this order.

5That the first defendant pay the sum of $25,000.00 damages to the plaintiff.

6That the plaintiff’s action against the sixth and eleventh defendants stand dismissed.”

At the time those orders were made, none of the defendants had filed contribution notices.

1. Broadly speaking, the defendants fall into four groups.  The first group, the so-called “State defendants”, comprised the defendants Cornwall, Roberts, Blake, the executors of the estate of Rosemary Wighton, Johnson, Anderson and the State of South Australia.  They are respectively the first, second, third, fourth, eighth, ninth and tenth defendants.  The State defendants also include the sixth defendant Sumner but, as the plaintiff’s claim against him was dismissed, he can be excluded from the State defendants for present purposes.

2. The judgment also refers to the Review Committee defendants who are the members of the Review Committee and Ms Anderson.

3. The second group of defendants, the so-called “Commonwealth defendants”, comprise the defendants King, Ryan and the Commonwealth.  They are respectively the seventh, eleventh and twelfth defendants.  As the plaintiff failed in her claim against the defendant Ryan, she can be excluded from the Commonwealth defendants for present purposes.

4. The third and fourth groups comprise one defendant each.  They are the two television stations, the Australian Broadcasting Corporation (“the ABC”) the Television Broadcasters Limited (“TVB”).  They are respectively the fifth and thirteenth defendants.  Television Broadcasters Limited has since changed its name but it is convenient to continue to refer to it as TVB.

5. The State of South Australia has paid the whole of the damages awarded to the plaintiff.

6. On 2 August 2002 Duggan J granted leave to the defendants to file contribution notices.  Leave was required because Rule 37.07 requires that contribution notices should be filed within seven days and thereafter only with the leave of the court.  The intent of Rule 37 is that contribution notices should be promptly filed so that, in the absence of any contrary direction of the court, the issues raised by the contribution notices may be determined at the trial of the action.  Notwithstanding the terms of s 25(3) of the Wrongs Act 1936, it is plainly undesirable that the issues as to contribution should be determined after judgment.

7. All defendants other than the Commonwealth defendants have filed contribution notices.  For its part, the Commonwealth made submissions opposing or, in the alternative, seeking to limit any order for contribution against it.

8. The State defendants seek contribution from the Commonwealth and the two television companies in respect of paras 1 and 2 of the order.  They seek contribution from the Commonwealth in respect of paras 3 and 4.

9. The ABC seeks contribution from the State defendants, Commonwealth defendants and TVB.  For its part, TVB seeks contribution from the State defendants, the Commonwealth defendants and the ABC.  Each of the television stations also claim contribution from the defendant Roberts.

10. No party sought to adduce any further evidence in support of the claim for contribution.  All relied on the evidence adduced in the action.  As the events, the subject of these proceedings, occurred before the enactment of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, the question of contribution is to be determined pursuant to s 25 and s 26 of the Wrongs Act, 1936.

    Two Separate Orders for Damages

11. It is necessary to explain why there are two separate orders for damages in paras 1 and 3 of that order.  Although the judgment held that the plaintiff had been defamed by the Review Committee and then by the ABC, TVB and by Mrs Roberts when she was interviewed on each of the television stations, it also held that the consequences of the defamation by the Review Committee differed a little from the consequences of the defamation in the two television broadcasts.  Thus, while all defendants other than the sixth and eleventh defendants are liable for the loss to the plaintiff’s reputation, for her personal distress and hurt, for the effect upon her health and for costs incurred in relocating to Victoria, the two television broadcasts did not cause economic loss suffered by the plaintiff: see paras 677 to 696 of the reasons.  Thus, the two television companies and Mrs Roberts are not liable for the economic loss suffered by the plaintiff in consequence of being defamed in the two television broadcasts.  The State defendants and the Commonwealth defendants are liable for the economic loss suffered by the plaintiff in consequence of the defamation and that the damage for that loss was ordered in paras 3 and 4 of the order.  For these reasons, the damages for defamation fell into two parts which are set out below.

    (1)    Damages for injury to reputation and related losses, namely,

    Damages  $225,000.00
    Medical fees  20,950.10
    Pharmaceutical fees  650.00
    Removal costs  13,006.00
      ___________

    $259,606.10

    ___________

    This is the subject of para 1 of the order.  This award attracted interest in the amount of $175,000: see para 2 of the order.

    (2)The three components of economic losses totalled $55,819.  This is the subject of para 3 of the order.  This award attracted interest in the amount of $17,235: see para 4 of the order.

12. The judgment also held (in paras 588 – 603) that Dr Cornwall, the first defendant, had been guilty of misfeasance in a public office.  It further held (in para 712) that the injury to the plaintiff’s reputation and her economic loss and consequences of the wrong had been compensated by the award of damages and defamation so that the plaintiff should not recover further compensation for those losses.  However, Dr Cornwall was ordered to pay $25,000 exemplary damages to the plaintiff and that is the subject of para 5 of the order.  Dr Cornwall does not seek any contribution in respect of para 5.

    Three Separate Defamatory Statements

13. Before dealing with each claim for contribution, it is necessary to recall that the plaintiff proved three separate occasions on which defamatory statements were made.  They were the defamatory remarks in the report of the Review Committee and in the two separate television broadcasts by the ABC and TVB respectively.  Each of the three sets of defendants acted independently of the other.  Notwithstanding that the defamatory material published by each was to a large extent to the same effect, each of these defamatory statements were made independently of the other.  In no respect did the three sets of defendants act in concert.  Their conduct is to be contrasted with, say, the publication of a newspaper article which contains defamatory statements where the author of the article, the newspaper editor, the publisher and others in the chain of publication of the newspaper will have acted jointly as part of a common enterprise.  In other words, the Review Committee defendants, the ABC and TVB are several, not joint, tortfeasors.

14. However, the fact that these three sets of defendants are several tortfeasors does not prevent a claim for contribution, since s 25(1)(c) of the Wrongs Act provides that a tortfeasor liable in respect of damage may recover from any other tortfeasor liable in respect of the same damage, whether a joint tortfeasor or otherwise.

    The Basis for Apportionment

15. Section 26 of the Wrongs Act provides that the determination of contribution recoverable from any person shall be the amount the Court finds to be just and equitable, having regard to that person’s responsibility for the damage.  When considering what is just and equitable for the purpose of apportioning damages where the plaintiff’s reputation has suffered in consequence of the publication of several defamatory statements, it will be necessary to examine the extent to which the acts of each defendant has caused the damage suffered by the plaintiff.  The State defendants relied on the remarks of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 – 533 and in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 per Hayne J at 29 with whom the other members of the court agreed. Both those cases concerned apportionment for contributory negligence but the approach I have identified is consistent with the principle expressed in those decisions that, when determining a proper apportionment of responsibility, regard must be had to the relative importance of the acts or the parties in causing the damage.

    Contribution as between the State Defendants , the ABC and TVB

16. Where, as here, a number of tortfeasors have each defamed the plaintiff, each tortfeasor is liable for the damage that each has caused.  At the same time, the plaintiff is not entitled to be compensated in full by each set of defendants for the same damage: s 11 of the Wrongs Act.  I dealt with these issues in paras 678 and 679 of the reasons and apportioned damages equally between the Review Committee defendants, the ABC and TVB.  In paras 687 to 696 I assessed the damages payable by those three sets of defendants for the injury to and vindication of the plaintiff’s reputation, for her personal distress, and for the effect upon her health in the sum of $225,000.

17. Notwithstanding their protests to the contrary, the arguments advanced by the Review Committee defendants, the ABC and TVB, when seeking contribution from each other, were, in effect, an appeal from my conclusion that the award of $225,000 should be apportioned equally between them.  I do not think it proper, therefore, to vary that apportionment.  Even if it were open to vary that apportionment, none of the arguments advanced by either the Review Committee defendants, the ABC or TVB have persuaded me that I should vary it.  The two television stations contended that the republication by them of the Report of the Review Committee was the natural and probable consequence of the original publication: Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 295 – 296. They contended that their liability should therefore be limited to a small amount. A natural and probable consequence of the Report of the Review Committee and its publication in the Parliament would have been a report of that fact in the news programs of the television stations. Indeed, the ABC reported it in its news program. It is doubtful whether an interview of the kind which each broadcast could fairly be described as a natural and probable consequence of the publication of the Review Committee’s Report. However, even if it is, there are several reasons why the liability of each television station should not be limited to the extent for which each contended. It is sufficient to say that there were other means of republishing the Report which would not have attracted liability. The television stations repeated and reinforced the loss and damage suffered by the plaintiff. It is difficult, if not impossible, to ascribe a precise apportionment to each. In my view, allowing for all the various arguments which each of those three parties advances, an equal apportionment between them is a fair contribution by each to the loss and represents the damage which each caused to the plaintiff. I add that the arguments advanced by TVB tended to ignore the effect of the reasoning in Dingle v Associated Newspapers Ltd [1961] 2 QB 162, approved on appeal [1964] AC 371 noted in para 678 of the reasons for judgment.

18. I also held (in para 712), that Dr Cornwall should contribute to the damages to the plaintiff’s reputation and her economic loss caused by his misfeasance.  Dr Cornwall’s actions were a significant cause of the loss and damage suffered by the plaintiff.  But it was no more significant than the report of the Review Committee and the two television broadcasts by the ABC and TVB.  For these reasons, I think that it is appropriate to apportion the award of $225,000 damages for the plaintiff’s loss of reputation and related losses and interest thereon equally between Dr Cornwall, the Review Committee defendants, the ABC and TVB.  For the same reasons, I apportion the award of $55,819 and interest thereon between Dr Cornwall and the Review Committee defendants.

    Should the Commonwealth Contribute?

19. The State defendants seek contribution from the Commonwealth in respect of both the award of $225,000 and $55,819 and interest on each.  The application is grounded on the fact that one of the members of the Review Committee, Ms King, was an officer employed by the Commonwealth and that the Commonwealth is vicariously liable for her conduct.

20. The Review Committee conducted the review pursuant to the provisions of the SAAP Agreement.  It was a committee established under that Agreement and the SAAP Act: para 449.  The members of the Review Committee and its secretary were acting on behalf of both the State and the Commonwealth and the review was funded by both the State and the Commonwealth: para 455.  The Review Committee numbered five persons, of which Ms King was one.  It had a secretary, Ms Anderson, who, among other things, was responsible for gathering documents and evidence for the Review Committee.  Ms King was, therefore, one of six involved in the work of the Review Committee.  The fact that the Review Committee was acting on behalf of both the State and the Commonwealth might suggest that the Commonwealth and the State should contribute equally.  But Ms King was only one of six persons working on that committee.  Although Mrs Roberts, Ms Wighton and Ms Anderson were guilty of malice, Ms King, as a member of the committee, was under an obligation to ensure that the report was accurate.  Weighing all factors, I think that the Commonwealth is liable to contribute one-sixth of the amount of the damages payable by the Review Committee defendants.

    The Claims for Contribution by the TV Stations against Mrs Roberts

21. The remaining claims for contribution are made by each of the television stations against Mrs Roberts.  The plaintiff sued both the television stations and Mrs Roberts in respect of this loss.  The claim was made by the ABC on the footing that Mrs Roberts substantially contributed to the defamatory statements and was actuated by malice.  The claim by TVB was made on the footing that Mrs Roberts stated that the unsubstantiated allegations were fact, that she was inclined to exaggerate the terms of the Report of the Review Committee, and was actuated by malice.  TVB also relied on the fact that its program was broadcast immediately to air without any opportunity for correction.

22. The television stations invited Mrs Roberts to participate in the two broadcasts.  Mrs Roberts must bear some responsibility for repeating the defamation but the television stations must bear the major responsibility.  Both were aware that the allegations had been described in the Report as unsubstantiated.  Neither was aware of the true facts and had not had an opportunity to investigate them.  Both were aware or ought to have been aware that they were sailing into uncharted waters with a real risk of founding on concealed reefs.  Each initiated the program and, without any investigation, invited Mrs Roberts to participate.  In effect, each invited Mrs Roberts to repeat the defamatory statements.  I think, therefore, that each of the television stations should bear the major portion of the damages payable in respect of the television broadcasts.  In the case of each, I think that a fair portion is eighty per cent of that loss.  Notwithstanding that Mrs Roberts went beyond the terms of the Report when speaking on TVB, I do not think that there is any basis for TVB being entitled to a higher contribution from her.

23. There will be orders to give effect to these reasons.