Scheldrick v Beveridge

[2006] NSWDC 189

Reported Decision: 4 DCLR (NSW) 281 Appeal dismissed [2007] NSWCA 105

District Court

CITATION:	Sheldrick v Beveridge [2006] NSWDC 189 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8, 9, 10 and 11 May 2006
JUDGMENT DATE:	11 May 2006
EX TEMPORE JUDGMENT DATE:	05/11/2006
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Verdict and judgment for the first defendant against the plaintiff; Verdict for the plaintiff against the second defendant; Agreed total damages of $600,000 reduced by 40% for contributory negligence; Judgment for the plaintiff against the second defendant for $360,000; Judgment for the first defendant against the second defendant; Costs to follow these events; Bullock order refused.
CATCHWORDS:	NEGLIGENCE - Child on bicycle hit by car when returning home, unsupervised, from a school excursion - Driver not negligent - Teachers and school negligent - Contributory negligence by child - Bullock order refused
CASES CITED:	Barisic v Devenport [1978] 2 NSWLR 111 Berrigan Shire Council v Ballerini (No 2) [2006] VCSA 65 Chotiputhsilpa v Waterhouse [2005] NSWCA 342 at [13] - [15] Clarke v Friend 29 MVR 361 at [14] Cook v Hawes [2002] NSWCA 79 at [15] Derek v Cheung (2001) 81 ALR 301 at [10] Furber v Stacey (2005) NSWCA 242 at [116] Gunning v Fellows (1997) MVR 97 at p 100 Knight v McLean [2002] NSWCA 314 at [61] - [68] Martin v Reda (2004) 41 MVR 421 Ohn v Walton (1995) 36NSWLR 77 at 79 Oshlack v Richmond River Council (1998) 193 CLR 72 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532-3 Rowes Business Service Pty Limited v Cowan [1999] NSWCA 268 at [37] Steward v Carnell (1984) 2 MVR 147 Stocks v Baldwin (1996) 24 MVR 416 at p 418 Williams v Lewer [1974] 2 NSWLR 91 at 95
PARTIES:	Neil William Sheldrick (Plaintiff) Cheryl Beveridge (First Defendant) State of New South Wales (Second Defendant)
FILE NUMBER(S):	4606/04
COUNSEL:	Mr F Austin for the Plaintiff Mr R Bartlett SC for the First Defendant Mr P Menary for the Second Defendant
SOLICITORS:	Lyons & Lyons (Plaintiff) Lee & Lyons (First Defendant) Hicksons (Second Defendant)

JUDGMENT

Factual background

1. The plaintiff in these proceedings is Neil Sheldrick. He was born on 19 October 1981 and is now 24 years of age, and resides with his brother and another friend. He was studying at university but unfortunately dropped out about a month ago. He is working as a barman.

2. On 22 February 1996 at the age of 14 he sustained severe injuries when in the course of riding a bicycle in the streets of Albury he collided with a motor vehicle. The accident occurred at the intersection of Alma Street and North Street in the northern suburbs of Albury.

3. The first defendant, Mrs Cheryl Beveridge, was the driver of that motor vehicle. She was a resident of Albury at the time of the accident.

4. At the time of the accident the plaintiff was a student at the Murray High School. The second defendant is the Department of Education and Training of the State of New South Wales, being the relevant authority conducting the Murray High School.

5. The plaintiff sues each of the defendants alleging negligence. Each of the defendants has in turn cross-claimed against the other seeking indemnity and/or contribution.

6. In 1996 the plaintiff resided with his family at their home in Hamilton Valley Court in the northern suburb of Lavington, in Albury. He was in year 9 at school. He was a bright student coming first or second in his year. His hobbies included music, reading and the computer. He was not particularly athletic but did enjoy bike riding. He used to ride around the quieter streets in the suburb of Lavington. He also rode his bike to school each day. He was of average build and physical strength.

7. As a result of his injuries the plaintiff has been left with quite significant disabilities and impairments. In particular he suffered brain damage which has affected his cognitive capability. He has learning and concentration difficulties, reduced memory and reduced verbal fluency. I do not need to deal with these matters in detail as damages have been agreed between the parties but I mention them as they bear upon the plaintiff’s presentation in the witness box and the evidence he gave.

8. My overall impression of the plaintiff was that he was a very pleasant young man who is striving to cope as well as he can with the situation in which he finds himself. In the witness box he was earnest and straightforward. I have no doubt that he did his best to relate the events surrounding his accident to the best of ability according to what he now remembers.

9. The reality is that he has no memory of the accident itself and I am required to ascertain the circumstances of that from other evidence. He has however recovered significant parts of his memory of the prior events of that day, over time. It is difficult to determine how much of that is actual memory as opposed to reconstruction as a result of the things that he was subsequently told or has read.

10. In 1996 the plaintiff went into year 9 at the Murray High School. As such he was entitled to participate for the first time in a relatively new sporting activity introduced at the school, namely recreational cycling. Because it was a new sport, which involved students going onto public roads, the headmaster made some strict stipulations as to how the activity was to be conducted by the supervising teachers. These included the need for continuous supervision at all times between leaving the school and returning to school, riding in groups and the required ratio of teachers to children, namely one to twelve. The boys were at all times to be kept in a tight group with one teacher at the rear and one towards the front to regulate the pace.

11. The plaintiff elected to participate in this sport of recreational cycling and at the time of the accident had been on at least one, possibly two, previous excursions with the cycling group.

12. Only minimal instructions had ever been given to him by the supervising teachers. There was no orientation session, no instruction as to how they should ride so far as formation and speed were concerned. There was no instruction as to the road rules and the like. There was no inquiry as to the experience or capability of the participants. The plaintiff’s only recollection of any instruction was that he should always brake first with the back brakes to avoid going over the handlebars.

13. On excursions the plaintiff’s recollection was that the teachers mostly rode together, talking to each other. There was no particular order and no particular instruction as to where they were going or how fast they should ride. On the one or two previous excursions the group was brought back to the school before the boys were released by the teachers.

14. The plaintiff had only ever ridden around the northern suburbs of Albury, in quiet streets. He had never experienced the busy city streets and had certainly not been to Wodonga. He did ride to school each day, but this was via a route involving quiet streets with only one busy street which he was able to negotiate via a patrolled level crossing. He had never been on a bike trip in excess of an hour.

15. On 22 February 1996 the cycling group participating in the sport met after lunch at the school gates at about 1.30pm. There were two teachers with the group, Mr Woodman and Mr Fagan. (Neither of these teachers was called to give evidence). It is not clear how many boys there were but there were, but there were more than five.

16. The group of cyclists set out and rode south through the city of Albury to the Murray River. Some parts of the journey were on streets and other parts along bike tracks, in particular the Lincoln Causeway. They crossed the river into Wodonga where they visited a bike shop. The ride was in excess of 16 kilometres and took about an hour. The stop at the bike shop was short, variously estimated as having been between five to fifteen minutes.

17. The group then set out on the return journey. At the bridge near the river the group stopped and the boys were then told by the teachers that they were dismissed and could go home. The plaintiff remembers thinking at the time, “Ripper, an early-mark”. The group then dispersed.

18. One group of boys, which included the plaintiff, set out for North Albury together. In this group were Dallan Yeo, Bernard Wassman, Blake Watson and Hayden Doyle. Bernard Wassman was a friend of the plaintiff. The group rode north through the busy streets of Albury towards Lavington. At first they all kept together. One of the boys wanted to visit a motorbike shop and there was a brief stop at Buzz’s Motorbike Shop.

19. Eventually the group of five reached Albury High School and Kiewa Street. By this time the plaintiff was tired, puffed and thirsty. He was thinking he would stop for a refreshment, a Blitz, at the road pantry further on before going home.

20. As the group came near to Alma Street heading north the plaintiff dropped behind the others. Whether this was because he was getting tired, or because he was delayed at the roundabout just before Alma Street is not clear, but as the group went north up Alma Street the plaintiff was some distance behind; about 15 to 20 metres.

21. The other four boys reached the end of Alma Street at the intersection with North Street. There was a give-way sign there. The plaintiff observed the other boys riding into the intersection. He was by then about 30 metres from the intersection.

22. The plaintiff gave evidence that he has no further recollection of the events which then occurred, including his accident.

23. In evidence given before Judge Neilson of this Court on 11 March 2004, the plaintiff acknowledged that he had seen the give-way sign and that he had noticed a stationary van at the intersection, giving way to traffic in North Street.

24. The intersection of Alma Street and North Street is and was at that time a T-intersection. Alma Street runs in a northerly direction to North Street, which runs east west. It is an open intersection at which the visibility is good. North Street is a wide street. At that time there were only two lanes going in opposite directions with a centre line. Today, as is depicted in the photographs in the exhibits, there are three lanes: two going west to Alma Street, and one being a left turn only into Alma Street. The speed limit was 60 kilometres per hour and as I have said traffic turning from Alma Street was required to give way to traffic in North Street. The plaintiff does not dispute that he was aware of his obligation in this regard.

25. Having gotten ahead of the plaintiff the other four boys rode up past the stationary waiting vehicle at the end of Alma Street, to the intersection. They paused there, then rode out into the intersection. They turned right into North Street and proceeded east towards David Street. There was differing evidence as to whether one boy had gone through the intersection ahead of the other three. What is clear however is that having turned into North Street, Bernard Wassman was the last of the four and once into North Street he slowed down to look back for the plaintiff. He stopped pedalling and was coasting down the slight incline at that point.

26. I conclude that from this time the group of three or four cyclists did spread out to some extent.

27. There was differing evidence also as to whether cars waiting at the intersection went through and turned right with the cyclists or whether the cyclists went alone. Bernard Wassman gave evidence that they went out beside another car. There was other evidence that they went out behind a car. Mrs Beveridge said the cyclists came out alone. Blake Watson said they came out alone, as did Dallon Yeo.

28. In my view the preponderance of the evidence supports the conclusion that the boys rode out alone, past the waiting stationary cars.

29. The plaintiff has no memory of the accident. In the absence of any recollection on his part the evidence of the actual collision came from other witnesses, in particular Mrs Beveridge (the first defendant), Bernard Wassman and Philip Hartley. It appears that the driver of the white van did not stop at the scene and has not been identified.

30. Bernard Wassman, having entered North Street, was proceeding east along it and then slowed down to look back for the plaintiff. He saw him reach the intersection, slow down, nearly stopping, looking right for traffic. This look took about two seconds. Mr Wassman then looked forward again and saw a car go past him, a Saab, approaching the intersection from the east. This was Mrs Beveridge’s car. There is an issue as to how far along North Street Mr Wassman had proceeded at this point, to which I shall return.

31. Then, five to ten seconds later Mr Wassman heard screeching tyres. He looked back in time to see Neil in mid air and his bike spin around and hit the front left door of the Saab.

32. Mrs Beveridge gave evidence that she was driving west along North Street at about 50 kilometres per hour. She had her two daughters in the car; one was sitting in the front passenger seat.

33. As she approached the intersection of Alma Street, at a point near the bowling club about 110 metres away, she saw three or four boys coming out of Alma Street and turning right into North Street.

34. As she continued along North Street she saw a vehicle in Alma Street waiting at the give-way sign. Although she did not then apply her brakes, she did take her foot off the accelerator as she neared the intersection, because she knew it was a dangerous intersection and one could never be sure if cars would emerge contrary to the give-way sign.

35. Mrs Beveridge gave evidence that she was travelling at about 50 kilometres per hour. This evidence was not contradicted and was corroborated by the investigating police officer, Detective Senior Constable Waters. He gave evidence that the skid marks he observed at the scene were consistent with such a speed.

36. Those skid marks were some nine metres in length running parallel to the northern curb of North Street at about a distance of six metres from the curb. The speed limit at that time was 60 kilometres per hour.

37. Mrs Beveridge continued along driving into the intersection, looking straight ahead. The first apprehension of any problem was something in her peripheral vision on the left, then a bang occurred on her windscreen, and she saw the plaintiff. She braked suddenly either just before or just after this. All the evidence is to the effect that the screeching of brakes and the thump or thud occurred within seconds of each other. Mrs Beveridge said she braked once she heard a bang. I conclude that the collision in fact occurred before she applied the brakes.

38. As soon as the accident occurred Mrs Beveridge stopped her car. She was understandably upset. She saw that the plaintiff was seriously hurt. She did not notice the skid marks. She made a statement to the investigating police officer.

39. In cross-examination Mrs Beveridge said she particularly noticed the boys coming out of the side street in front of her, which she considered dangerous. She conceded that she was familiar with the intersection and that it was not uncommon for children to ride bikes there. It was put to her she should have slowed down given the presence of the boys. She then said, (T 40) “Well, I did slow down...I took my foot off the accelerator...when I came to the intersection I slowed down...”

40. It was put to her that this was a practice she adopted after the accident but not before but she said she had always done so at this intersection because she could not be sure people coming out of Alma Street are actually going to give way, and that people do not always stop and give way there. For that reason she regarded it as a dangerous intersection.

41. Mr Hartley was a passenger in the left front seat of a car being driven by his mother north along Alma Street approaching North Street. About 20 to 30 metres away from the intersection he noticed the plaintiff riding his bike up the left side of the cars waiting at the give way sign.

42. He observed that the plaintiff continued riding at a constant speed up to the intersection out past the first vehicle, into the intersection where suddenly he got hit by a car coming along North Street. He said that his attention was drawn to the boy because he did not slow down at the corner, and when he rode out past the front car that was stopped there, his concentration, that is Mr Hartley’s concentration, was on the plaintiff completely.

43. Mr Hartley’s memory of the actual collision was a quick blur but he recalled that the plaintiff was sent flying through the air.

44. Afterwards he identified himself to the policeman but did not make a statement that day.

45. Mr Hartley was cross-examined briefly, but his version of what the plaintiff did was not shaken.

46. In considering all this evidence I have concluded that Mr Hartley’s version is to be preferred as to what the plaintiff did in the lead up to the accident. Mr Hartley was not involved in the accident and was an independent observer. His version of events was not seriously challenged and is consistent with the version of events given by Mrs Beveridge.

47. It follows that I accept that the plaintiff rode through the give-way sign without pausing, out into North Street, past the line of cars, including the waiting white panel van at the head of the queue, into the path of the oncoming vehicle of the first defendant, Mrs Beveridge.

48. I return now to where Bernard Wassman was at the time that he first looked around, and at the time of the collision.

49. Mr Wassman marked the spot with an X on photograph exhibit G3 where he says he first slowed down to look back for Neil. This was at a point near the northern curb of North Street just east of the intersection at Alma Street. He said that he stopped pedalling and coasted from that point. The first look back took about two seconds. After a further five to ten seconds the accident occurred and he looked back in time to see the last part of the collision, with the plaintiff in the air.

50. In that five to ten second period the first defendant’s car went past him. By that time he was well clear of the intersection.

51. Mrs Beveridge noted the white van stationary and waiting at the intersection. She did not see the plaintiff who had either not then reached the intersection or was obscured by the white van. Although she did not brake, nor did she accelerate, and she continued driving at or around 50 kilometres per hour, looking ahead.

52. A few seconds later the plaintiff’s bicycle collided with the left front side of her vehicle. The collision occurred in the left lane of North Street at a point adjacent to the western extremity of Alma Street. This is consistent with the plaintiff having emerged out from Alma Street from outside the waiting white van, onto North Street.

Breach of Duty by the Second Defendant

53. I turn firstly to the issue of any breach of duty by the second defendant, as I have little trouble in concluding from the evidence that the two teachers were negligent in their failure to supervise the plaintiff throughout the entirety of the excursion until he either reached the school or his home.

54. This failure to supervise the plaintiff was a direct cause of his injuries in that if he had been properly supervised, more probably than not, the accident at Alma Street and North Street would never have occurred.

55. The second defendant is vicariously liable for the negligence of the teachers, it not being suggested that their conduct was other than in the ordinary course of their employment.

56. I will therefore enter a verdict in favour of the plaintiff against the second defendant.

Breach of duty by the first defendant

57. The issue of any breach of duty on the part of the first defendant emerged, for me, as the most difficult issue for determination in the trial.

58. The issue is whether I could be satisfied that the actions of Mrs Beveridge were those of a reasonably prudent motorist, or if not, whether the actions of a reasonably prudent motorist in those circumstances would have prevented this accident.

59. I was referred to a number of authorities, many of them with similar factual situations, involving children, relating to circumstances in which the plaintiff was guilty of conduct contrary to the road rules.

60. I do not propose to review these cases here in detail but having read them I conclude that the following propositions are relevant to the facts in the present case:

(a) The standard of care placed by the law on drivers of motor vehicles is a high one and must take account of the fact that there is a likelihood that pedestrians, or as in this case cyclists, may suddenly come into the path of an oncoming vehicle: Clarke v Friend 29 MVR 361 at [14].

(b) It is not the law, however, that a driver must drive in such a way as to anticipate everything that others might do at all steps of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey: Knight v McLean [2002] NSWCA 314 at [68].

(c) In an area where other road users might come onto a street in disregard of the traffic rules, it is necessary to be extremely vigilant and to respond immediately and without hesitation to any indication that this might be happening: Cook v Hawes [2002] NSWCA 79 at [15].

(d) A driver must exhibit special care or drive defensively in the presence of pedestrians, or as in this case cyclists, especially if they are children: Rowes Business Service Pty Limited v Cowan [1999] NSWCA 268 at [37].

(e) Factors to be taken into account in considering the conduct of a driver include the extent of damage that may be done by a driver to a pedestrian, or as in this case a cyclist; the degree of likelihood that a pedestrian or cyclist will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger: Stocks v Baldwin (1996) 24 MVR 416 at p 418.

(f) Standard of care imposed on drivers is such as to recognise that children often act suddenly, impulsively and without thought and sometimes stupidly or illogically: Gunning v Fellows (1997) MVR 97 at p 100.

(g) However, the risks of which a driver should take account must be perceivable: Derek v Cheung (2001) 81 ALR 301 at [10], and not remote: Martin v Reda (2004) 41 MVR 421 (Queensland Court of Appeal).

(h) There are limits on the extent to which irrational behaviour of others, in apparent disregard of their own safety, should reasonably be anticipated by a reasonably careful motorist: Steward v Carnell (1984) 2 MVR 147.

(i) Drivers of vehicles are entitled to drive with their eyes ahead of them until they notice something which calls for greater concentration: Knight v McLean [2002] NSWCA 314 at [66].

61. I turn therefore to consider the facts of the present case in the light of these principles.

62. The questions for my consideration are whether there were factors which gave rise to a perceivable risk, whether the actions of the first defendant were those of a reasonably careful motorist and to what extent she was able to do anything when confronted with the danger.

63. The evidence is that she was maintaining a speed of around 50 kilometres per hour. In my view that speed was not unreasonable in the circumstances. Although she knew it was a dangerous intersection she had looked, and noted, that the white van was stationary at the intersection, waiting for her to pass. She did not see the plaintiff. She took her foot off the accelerator as she approached. The other boys, including Bernard Wassman, were by then well along North Street, behind her.

64. The emergence of the plaintiff at the end of the intersection was sudden and unexpected. There was nothing to put her on notice that this might occur.

65. In my view there was no perceivable risk which put her on notice until the very last moment, against which she needed to take any precaution. Having looked at the cars in Alma Street waiting to give way, and not having seen the plaintiff, she was entitled to continue driving with her eyes ahead of her.

66. I find, therefore, that her actions were those of reasonably prudent driver in all the circumstances.

67. I am not satisfied that the evidence establishes that, once alerted to the risk, there was anything that could have been done which would have prevented the accident.

68. I find, therefore, that the first defendant was not negligent or in breach of any duty to the plaintiff.

69. Accordingly, I will enter a verdict in favour of the first defendant against the plaintiff.

70. I turn now to consider whether the plaintiff was guilty of contributory negligence, and if so, the extent to which his entitlement to damages ought to be reduced.

71. I embark upon this exercise mindful of the warning of the Court of Appeal in Knight v McLean [2002] NSWCA 314 at [61]:

“It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision.”

72. In my view this plaintiff was guilty of contributory negligence to a substantial degree. Clearly it was he who went through the give-way sign contrary to the requirements of the traffic rules. He knew he was required to give way to traffic in North Street but failed to do so. In this regard the evidence is, as I have found it, that he did not change his speed, and emerged from beside the white van into the pathway of the oncoming vehicle of the first defendant. He clearly did not take sufficient care to pause or stop and adequately observe whether or not the path was clear. He should have been alerted to the danger by the fact that the other vehicles remained stationary at the give-way sign.

73. The question then becomes, to what extent is it just and equitable to reduce his damages? In considering this issue I take into account the relative culpability of the defendant in comparison to that of the plaintiff: Barisic v Devenport [1978] 2 NSWLR 111.

74. In this regard I must compare the respective degrees by which the conduct of the plaintiff and the defendant has diverged from the standard of care of a reasonable person: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532-3.

75. I take into account the plaintiff’s age, the fact that he was fatigued, thirsty and most probably anxious that he had fallen behind his fellow cyclists.

76. I assess the contributory negligence of the plaintiff at 40 per cent.

Damages

77. The parties agreed at the outset of the trial that in the event of a verdict the total damages to which the plaintiff would be entitled should be $600,000.

78. I deduct 40 per cent from those agreed total damages and award the sum of $360,000 to the plaintiff.

Cross-Claims

79. I turn now to the cross-claims. It follows from my findings that the first defendant has succeeded against the second defendant and the second defendant has failed against the first defendant.

Verdicts and Judgment

80. I enter a verdict in favour of the plaintiff against the second defendant in the sum of $360,000.

81. I enter a verdict in favour of the first defendant against the plaintiff.

82. I enter a verdict in favour of the first defendant in the cross-claim against her by the second

defendant.

83. I enter a verdict in favour of the first defendant in her cross-claim against the second

defendant.

84. I enter judgment in accordance with these verdicts.

85. As far as costs are concerned, I should firstly order the second defendant to pay the costs of the plaintiff in the proceedings as agreed or assessed on the ordinary basis.

86. Insofar as the costs of the first defendant are concerned, the plaintiff applies for a costs order in the nature of Bullock or a Sanderson order such that the second defendant should pay the costs of the first defendant or should indemnify the plaintiff against any liability he has to pay the costs of that first defendant.

87. The starting point for any consideration in relation to orders for costs is the presumption that costs follow the event. Indeed r 42.1 of the UCPR requires the Court to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs.

88. A successful party has a reasonable expectation of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72. Fairness dictates that the unsuccessful party typically bears the liability for costs: Oshlack at [67].

89. The rule reflects the general law presumption which is based on the principle that costs are compensatory: Ohn v Walton (1995) 36NSWLR 77 at 79.

“The discretion of the Court to depart from the presumption is unfettered, however a court ought not exercise its discretion against a successful party arbitrarily or capriciously or on no grounds at all.” Oshlak at [22]. The discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”: Williams v Lewer [1974] 2 NSWLR 91 at 95. The usual rule is that the presumption will only be displaced where there has been some sort of misconduct on the part of the successful party.

90. The particular application of these principles insofar as the Bullock and Sanderson orders are concerned is summarised in Furber v Stacey & Anor (2005) NSWCA 242 by Einstein J at [116], where he sets out the prerequisites for such orders, namely:

“(a) that the costs have been reasonably and properly incurred by the plaintiff as between it and the unsuccessful defendant, and (conjunctively) (b) the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for costs of the successful defendant or the conduct or the conduct of the unsuccessful defendant shows that the joinder of the successful defendant was reasonable and proper to ensure the recovery of damages sought.”

91. I was referred to the decision in Chotiputhsilpa v Waterhouse [2005] NSWCA 342, in particular paras [13] to [15], a case which is similar to the present case. It seems to me there are no special circumstances in this case which would cause me to exercise my discretion to depart from the presumption that costs follow the event. There was no disentitling conduct on the part of the second defendant here, such as for example forcing the plaintiff to join the first defendant. This is a case similar to, as I said, Chotiputhsilpa, in which the cases against each of the defendants were separate and discrete, and was not a case where there was some doubt as to which of the defendants were responsible for some particular conduct: see also Berrigan Shire Council v Ballerini (No 2) [2006] VCSA 65.

92. I do not, therefore, consider that circumstances to support an order in the nature of a Bullock order or a Sanderson order have been made out.

93. I therefore make the following orders as to costs:

1. The second defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed on the ordinary basis.

2. The plaintiff is to pay the first defendant’s costs of the proceedings as agreed or assessed on the ordinary basis.

3. The second defendant to pay the costs of the first defendant of the cross-claim brought by her against the second defendant and of the cross-claim brought against the first defendant by the second defendant, as agreed or assessed on the ordinary basis.

16/05/2007 - Spelling correction - Paragraph(s) Citation