Sharp v Stewart
[2004] TASSC 114
•14 October 2004
[2004] TASSC 114
CITATION: Sharp v Stewart [2004] TASSC 114
PARTIES: SHARP, Karin Evelin as next friend of
SHARP, Christopher Jonathon Plaintiff
v
STEWART, Ian G Defendant
STATE OF TASMANIA First third party
SMITH, Registered Nurse Second third party
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 769/1998
DELIVERED ON: 14 October 2004
DELIVERED AT: Hobart
HEARING DATES: 7 October 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Torts – Law of torts generally – Joint or several tortfeasors – Contribution – Plaintiff releasing one of several tortfeasors – Whether released tortfeasor liable to a claim for contribution from another tortfeasor – Extent to which judgment by consent of the plaintiff in favour of the defendant releases the defendant from causes of action not pleaded in the proceeding leading to the consent judgment.
Wrongs Act 1954 (Tas), s3(3).
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, referred to.
Aust Dig Torts [9]
Procedure – Tasmania – Practice under Rules of Court – Summary judgment – General approach.
Supreme Court Rules 2000 (Tas), r367.
Aust Dig Procedure [270]
REPRESENTATION:
Counsel:
Defendant: K B Procter SC
First third party: T J Ellis SC
Solicitors:
Defendant: Murdoch Clarke
First third party: Director of Public Prosecutions
Judgment Number: [2004] TASSC 114
Number of Paragraphs: 25
Serial No 114/2004
File No 769/1998
KARIN EVELIN SHARP AS NEXT FRIEND OF
CHRISTOPHER JONATHON SHARP v IAN G STEWART,
STATE OF TASMANIA AND REGISTERED NURSE SMITH
REASONS FOR DECISION MASTER S J HOLT
14 OCTOBER 2004
By writ filed 26 May 1998 the infant plaintiff through his litigation guardian sued paediatrician, Dr Ian Stewart, and the State of Tasmania (“the State”) for damages for personal injury. According to the statement of claim dated 29 August 2000 the plaintiff suffered brain damage as a result of a failure by medical practitioners to detect and promptly treat a condition from which he was suffering, namely, Pernicious Anaemia. It is said that the plaintiff was taken to Dr Stewart on 28 September 1994 and that at or shortly after that time Dr Stewart should have arranged for a blood test or a bone marrow test to be undertaken. The tests would have revealed the existence of the condition and early treatment would have prevented the brain damage. Further, it is said that the State operated the Royal Hobart Hospital and employed haematologist, Dr Jupe. Between 18 and 20 October 1994 the plaintiff received treatment from the hospital, but Dr Jupe failed to properly analyse a blood sample and so failed to diagnose the Pernicious Anaemia before it resulted in the brain damage.
The plaintiff’s writ had been issued out of time and an extension was required under the Limitation Act 1974. During the course of the hearing of the plaintiff’s application for an extension of time, on 24 October 2000, the proceedings against the State were resolved by the plaintiff through his litigation guardian agreeing to a consent judgment in favour of the State with no order as to costs. In due course the judgment was formally taken out and entered in the records of the court.
In July 2001 Dr Stewart obtained an ex parte order granting leave to file and serve a third party notice on the State. Dr Stewart has claimed to be entitled to a contribution from the State for any damages which might be awarded to the plaintiff. An action for contribution is a statutory cause of action under the Wrongs Act 1954 (“the Act”), and in general terms a contribution is recoverable where the person from whom the contribution is sought is, or if sued by the plaintiff would have been, liable to the plaintiff for his damage or injury. Dr Stewart in his statement of claim in the contribution proceeding alleges that the State is liable for reasons entirely different from those which had previously been put forward on the plaintiff’s behalf in the primary action. In particular, in the third party proceedings there is no allegation concerning the Royal Hobart Hospital or Dr Jupe. Dr Stewart says that in July 1994, months before the plaintiff was referred to him or to the Royal Hobart Hospital, he was presented to a nurse employed by the State at the Howrah Health Clinic, for a six months of age child health check and updating of particulars in the child’s personal health record book. It is alleged that the nurse through either negligence or lack of training provided by the State failed to note and act on the significance of the child’s head circumference between six weeks of age and six months of age falling from the 50th percentile to the 5th percentile. It is said that had the potential significance of this been appreciated by the nurse there would have been an early referral to a competent specialist; the undertaking of appropriate tests; diagnosis of the Pernicious Anaemia and the early administration of treatment which would have prevented brain damage.
The State in its amended defence to the statement of claim in the contribution proceedings says in par8:
“The first third party says the plaintiff granted a release or made an accord with it when on 24 October 2000 he consented to an order that there be judgment for the first third party against the plaintiff in this action, and the first third party further says that it is accordingly relieved from liability to make contribution to the defendant by s3(3)(b) of the Wrongs Act 1954.”
Based upon this plea the State has applied for summary judgment in the contribution proceedings pursuant to the Supreme Court Rules 2000, r367.
The Act was amended on 29 June 2000 (approximately four months before the consent to judgment) in a number of respects including extending the application of s3(3) beyond joint torts. Section 3(3), as amended, is as follows:
“(3)A release of, or accord with, one person granted or made by a person by whom damage is suffered–
(a)does not discharge another person unless the release so provides; and
(b)relieves the person to whom it is granted or with whom it is made from liability to make contribution to another person–
and has effect to reduce the claim of the person by whom damage is suffered–
(c)in the amount of the consideration paid for the release or accord;
(d)in any amount or proportion by which the release or accord provides that the total claim of that person shall be reduced; or
(e) to the extent that the person to or with whom the release or accord is granted or made would have been liable to make contribution to another person if the total claim of the person by whom damage is suffered had been paid by the other person–
whichever is the greatest.”
Mr Ellis SC submitted on behalf of the State that there is no need to consider the extent to which the consent judgment would preclude further action on the plaintiff’s behalf against the State. He said that the plaintiff’s claim was for damages for a brain injury and the consent to judgment was a release from that claim regardless of what causes of action might have been pursued to recover the relief sought. It was submitted that applying the words of the Act, s3(3), in their ordinary and natural meaning, once there is any release in favour of an alleged tortfeasor the tortfeasor cannot be held liable in contribution proceedings and if there had been a liability, but for the release, the plaintiff’s damages will be reduced at the instance of any other tortfeasor against whom the plaintiff claims.
The legislation is to be construed in light of its history and purpose. Prior to its amendment in June 2000, s3(3) applied only in the case of joint torts. The common law concerning joint torts was considered in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. At 606 Gummow J said:
“Parke B decided that, even if liability in respect of a joint tort be joint or several at the election of a plaintiff, there is but one entire and indivisible cause of action incapable of separation or division so that whether the action be brought against one or more of the joint tortfeasors, it is the same cause of action. This merges in the first judgment entered. As Parke B put it in King v Hoare:
‘The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two.’
One consequence of looking at the matter in this way was to deny any right of contribution between joint tortfeasors. It should be recalled that, at the time of the seventeenth century cases and for a significant time thereafter, ‘tort’ identified wilful and intentional wrongs. Hence the corollary that, if joint tortfeasors had taken part voluntarily in the wrongful act which gave rise to an indivisible cause of action, the result was that in claiming contribution one joint tortfeasor was attempting to recover in respect of what in law was the claimant’s own wrong. That seems to be the basis of the tersely stated reasoning of Lord Kenyon LCJ in Merryweather v Nixan.” [emphasis added]
He continued at 615 – 616:
“There have been varying legislative responses to the perceived need to displace the so-called rule in Merryweather v Nixan by a statutory regime for contribution between tortfeasors. In Tasmania and Ireland particular provision is made for the adjustment of statutory rights of contribution consequent upon the effective release of one of several joint tortfeasors.”
In Astley v Austrust Ltd (1999) 197 CLR 1, it was held that the South Australian apportionment legislation, allowing for a deduction for a plaintiff’s contributory negligence, did not apply where a tortfeasor was also sued in contract. The reasoning applied to the apportionment legislation in each of the Australian States and Territories and so shortly following the decision in Astley there were legislative amendments. The 2000 amendments in Tasmania included replacing the definition of “fault” with a definition of “wrongful act” which included acts or omissions amounting to a breach of contractual duty of care that is concurrent and co-extensive with a duty of care in tort and replacing where appropriate references to a “tortfeasor” or “joint tortfeasor” with references to a “person”. The result being the current form of the Act, s3(3).
The original form of the Act, s3(3), included a limited recognition of the common law position as explained by Gummow J in Thompson “that in claiming contribution one joint tortfeasor was attempting to recover in respect of what in law was the claimant’s own wrong”. The provision was designed so that if there was a release by an injured person of one joint tortfeasor the joint cause of action, the subject of the release, could not be relied upon by the other joint tortfeasor or joint tortfeasors to recover contribution from the person released.
Where a plaintiff releases a tortfeasor from a cause of action it may be seen as inconsistent to allow that same cause of action to be relied upon by another tortfeasor against the released tortfeasor. The plaintiff would recover in full from the tortfeasor he had elected to sue and the released tortfeasor (unless he had also obtained an agreement to indemnify from the plaintiff) would potentially be deprived of the full advantage he had obtained from the release, if contribution proceedings were taken against him .
It is not a radical extension of the original provision to provide effectively that where a plaintiff releases a tortfeasor from a cause or causes of action a concurrent tortfeasor should be prevented from obtaining contribution based on the same cause or causes of action the subject of the release with the result that the concurrent tortfeasor’s remedy lies in having the plaintiff’s damages appropriately reduced rather than in taking proceedings on a cause or causes of action from which a tortfeasor has been released. On the other hand where several torts are committed each resulting in the same damage there is no reason why a release of a tortfeasor from one cause of action should necessarily operate to end his potential liability either to the plaintiff or another tortfeasor based on an entirely different cause of action.
In my view, s3(3) (as amended), when considered in the context of its history and purpose arguably should be construed so as not to apply beyond the extent of the release given. Such a construction does no violence to the language used in the subsection and is conformable with the general object and purpose of the Act as a whole. It does no injustice to a tortfeasor. If he wants to be released from all causes of action that should be made clear in the terms of the release. If the release is in respect of one only of several causes of action he has no grounds to complain if the others are pursued either by the plaintiff or another tortfeasor in contribution proceedings.
The only evidence as to the content of the agreement between the plaintiff through his litigation guardian and the State is the consent to judgment in favour of the State and the judgment itself. When the court approved the infant’s compromise on 24 October 2000 all it was told was that it was agreed that the State should have judgment with no order as to costs. The transcript of the hearing where the agreement for judgment (ie, the infant’s compromise) was approved by the court shows that no reference was made by either counsel for the State or counsel for the infant plaintiff that a possible result of the release would be a reduction in the damages which the plaintiff might be able to recover against Dr Stewart. Under the Supreme Court Rules 2000, r299, an agreement settling an infant’s claim is not valid save and except to the extent that it is approved by the court. Accordingly, the release so far as it concerns the parties to the release, can be from no more and no less than any claim which the existence of the judgment precludes. The question here for the purposes of the Act, s3(3), is whether the judgment itself (as opposed, for example, to the expiry of an ultimate limitation period) precludes the plaintiff from bringing an action against the State for damages for his brain injury based upon the alleged failings referred to in the third party proceedings, namely, the failings of the nurse employed by the State at the Howrah Health Clinic. If it does, Dr Stewart’s contribution proceedings are futile and his remedy, subject to the matter being pleaded, lies in any award of damages to the plaintiff being reduced by the proportion that otherwise would have been met by the State.
Dr Stewart is asserting in his contribution proceedings a cause of action which the plaintiff could have pursued against the State which is quite different to the cause of action which had been pleaded on the plaintiff’s behalf at the time of the consent to judgment. That it is a separate cause of action is clear from the decision in Marshall v London Passenger Transport Board (1936) 3 ALL ER 83. There the infant plaintiff had been knocked from his bike by a tram and suffered injury. He sued the operator of the tram as being vicariously liable for the negligent driving of its employee. After the expiry of the relevant limitation period prescribed by the Public Authorities Protection Act 1893, he sought to amend his pleading by alleging a failure by the defendant to properly maintain its roads and tram lines. If the amendments had the effect of introducing a new cause of action the rule in Weldon v Neal (1887) 19 QBD 394, would have applied so that absent very peculiar circumstances the proposed amendments would be disallowed as the plaintiff could not take advantage of a former writ to defeat a limitation statute. Lord Wright MR said at 88:
“In the present case I think the position is very much clearer. The claim originally indorsed on the writ was for damages for personal injuries caused by the negligent driving of the defendants’ servant – that is, a claim based on negligence in driving and negligence of a vicarious character; it proceeds on the liability of the defendants for their servant’s default. The amendment which is proposed is based upon what I regard as something entirely different, not as a claim for negligent driving and not as a claim for breach of duty by the defendants’ servant for which the defendants are liable; it is based on a claim for breach of statutory duty that may indeed be regarded as statutory negligence, as explained in the recent case of Lochgelly Iron & Coal Co Ltd v McMullan, but it is certainly an entirely different claim from a claim for negligent driving, and it is a claim which is not based on vicarious liability. It is a claim for breach of a statutory duty, which is a liability personal to the corporation and not capable of being delegated; but in addition to that it involves, as I read the proposed amendment, a quite different set of ideas, quite a different allegation of fact. As I understand it, the original claim of negligence had been because the defendants’ tramcar was driven into and struck the plaintiff, whereas the proposed amendment seems to allege that the bad repair of the road and the tramlines caused the plaintiff to collide with the defendants’ tramcar, which is quite a different set of ideas from the idea of negligent driving. In my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries. No doubt in cases of negligence injury is the gist of the action, but it is only one element. The cause of action involved duty, breach and damage, and the proposed amendment would have set up an entirely different duty and an entirely different breach of that duty. The one remaining feature of damage, it may be, would have been the same. In these circumstances, I think that the amendment could not be allowed consistently with the Public Authorities Protection Act, 1893, and that the learned judge was right in refusing to allow it; and that this appeal should be dismissed with costs.”
Certainly the consent judgment prevents the plaintiff from pursuing the claim based on negligence at the Royal Hobart Hospital and, accordingly, the Act, s3(3), prevents Dr Stewart from pursuing it in his contribution action against the State. The question here, however, is whether the consent judgment also operates to prevent the plaintiff (and hence Dr Stewart in contribution proceedings) from pursuing a different cause of action in respect of the same injury. In Henderson v Henderson (1843) 3 HARE 100 at 115 (67 ER 313 at 319) Sir James Wigrim VC said:
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
The High Court considered res judicata, issue estoppel and the extended principle in Henderson v Henderson in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The background to that case was as follows. The Port of Melbourne Authority hired a crane to Anshun Pty Ltd. It was a term of the agreement that Anshun would indemnify the Authority in respect of any liability for injury or loss of life arising from Anshun’s use of the crane. Anshun put the crane to use at a Melbourne dock. Whilst steel girders were being lifted by the crane one struck the plaintiff Mr Soterales and severely injured him. Mr Soterales claimed damages from both the Authority and Anshun. The Authority and Anshun exchanged contribution notices, but there were no pleadings in the contribution proceedings. The Authority did not, at the trial, claim an indemnity under the crane hire agreement and the jury found both defendants liable in negligence with the Authority to pay 90% of the damages and Anshun 10%. That was the first action. The Authority then commenced an action against Anshun claiming an indemnity for the damages and costs which it had to pay to Mr Soterales. The claim was based on the indemnity in the agreement for the hire of the crane. Anshun pleaded a defence of estoppel based upon the outcome of the first action. An application for summary judgment brought by Anshun was dismissed because of the complexity of the issues involved. At trial Anshun’s plea succeeded and an order was made granting a perpetual stay of the Authority’s action. An appeal to the Full Court of the Supreme Court of Victoria was dismissed and the matter went on appeal to the High Court. Gibbs CJ, Mason and Aiekin JJ in their joint judgment held that it was not a case of res judicata, nor a case of issue estoppel and fell to be determined according to whether or not the case fell within the extended principle in Henderson v Henderson. Their Honours said at 597 - 598:
“Subject to an examination of the application of the principle in Henderson v Henderson, it is evident from the discussion which has already taken place that this is not a case of res judicata. The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. Here the indemnity cause of action was not litigated in the Soterales proceedings. The judgment in that case did not deal with that cause of action, though it evidently proceeded on the assumption that the Authority was not entitled to an indemnity.
For a similar reason this is not a case of issue estoppel in the strict sense. The Full Court was correct in deciding that the existence of an indemnity is a defence to a claim for contribution under s24(1)(c) of the Wrongs Act and that the absence of an indemnity is not an ingredient in the cause of action for contribution. It was not a necessary step to the decision that Anshun was entitled to contribution for the Court to decide that the Authority was not entitled to an indemnity against Anshun: Carl Zeiss (1967) 1 AC at p 965 . Had the Authority pleaded the indemnity as a defence to Anshun's claim for contribution, a decision on that defence would have been a necessary step to the ultimate decision that Anshun was entitled to contribution. The defence of indemnity not having been raised, the judgment for Anshun did not involve a determination of that issue.
The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson.”
The joint judgment proceeded by rejecting an abuse of process test as being of great utility and considered the matter by reference to the estoppel which applies where there is an unreasonable exclusion of a relevant matter in an earlier action and the estoppel which applies where a party brings an action which if it succeeds will result in a judgment which conflicts with the earlier judgment. Their Honours said at 602 – 604:
“In these cases in applying the Henderson v Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell LJ and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is no more evident when it is applied to a plaintiff's new proceeding which is said to be estopped because the plaintiff omitted to plead a defence in an earlier action.
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. …
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. …
…
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.
…
Taking into consideration the relevant factors we conclude that the Full Court was right in holding that there was an estoppel.”
The potential applicability of the principle in Henderson v Henderson where res judicata does not apply in its strict sense was confirmed in the joint judgment in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502. At 509 Deane, Toohey and Gaudron JJ said:
“In truth Henderson v Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised ‘which could and should have been litigated in the earlier proceedings’: Port of Melbourne Authority.”
As can be seen the question of whether or not the plaintiff by consenting, through his litigation guardian, to judgment in favour of the State, was thereafter precluded from bringing a further claim against the State for the same damage, but based on a different cause of action is to be determined by reference to the Anshun matters. In particular, whether it was unreasonable for the plaintiff through his litigation guardian not to include in the original action an alternative claim that the State was liable for the plaintiff’s injury because of the failings of the State employed nurse at the Howrah Health Clinic and the relative importance in the circumstances of the case of avoiding the risk of inconsistent judgments.
Mr Procter SC on behalf of Dr Stewart put the matter in another way. He submitted that the only reason the plaintiff’s original action was commenced against the State rather than another person or entity was because the Crown Proceedings Act 1993 required that the State be the named defendant. Accordingly, but for the legislation the judgment would not have identified the State as the relevant party, but instead the authority responsible for the Royal Hobart Hospital. He submitted that Dr Stewart’s claim although also against the State as required by the Crown Proceedings Act 1993 is against the State in an entirely different capacity to that in which the State was sued by the plaintiff. For this reason, he says that the release or judgment can have no impact on Dr Stewart’s claim for a contribution. In light of the matters which follow it is unnecessary for me to come to any conclusion based upon this submission. I leave its determination to the trial of the action.
This is an application by the State for summary judgment in the contribution proceedings. The power to award summary judgment should only be exercised in clear cases. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J, as he then was said at 91:
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
See also General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602 and Agar v Hyde (2000) 201 CLR 522 at 575 and 576.
If summary judgment were to be given to the State on the contribution proceedings the following reasonable possibilities arise. Dr Stewart will apply for and obtain leave to amend his defence to the plaintiff’s claim by alleging that the plaintiff released the State from all liability in respect of the plaintiff’s brain injury by consenting to judgment. Thereafter Dr Stewart at the trial will contend that the plaintiff’s damages are to be reduced by what otherwise would have been determined to be the State’s just and equitable contribution to the damages award. In response the plaintiff may claim that the release was confined to the cause of action pleaded at the time of the consent judgment and that the State had not been released in respect of any cause of action arising from the alleged failings of the State employed nurse at the Howrah Health Clinic. On behalf of the plaintiff evidence may be adduced going to the question of whether or not it was unreasonable for the plaintiff to exclude from his original claim against the State the matters now asserted by Dr Stewart in his contribution proceedings. On behalf of the plaintiff argument may be presented as to the relative importance in the consideration of the matter of the risk of conflicting judgments. With the benefit of all the relevant evidence and comprehensive argument there may be a finding at the trial of the action that the consent judgment did not preclude the plaintiff from bringing a further action against the State based on the alleged failings of the State employed nurse at the Howrah Health Clinic. There may be a finding, accordingly, that the consent to judgment and the entry of the judgment did not amount to a complete release of the State and that therefore there is no occasion to consider reducing the plaintiff’s damages under the Act, s3(3).
It is not clear that the State has been released by the entry of the consent judgment from liability in respect of the matters pleaded in Dr Stewart’s contribution proceedings. It would be quite wrong to give summary judgment to the State on an issue which is likely to have to be dealt with at the trial in any event and which issue may be determined differently at the trial. There would be a gross injustice to Dr Stewart if he has to pay the damages in full and despite the fact that there is another tortfeasor cannot recover a contribution. It is appropriate that the issue be left for determination at the trial in the usual way.
The State’s application for summary judgment is dismissed.
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