Thomson v Glandore P/L

[1996] QSC 260

IN THE SUPREME COURT
OF QUEENSLAND

No. 1977 of 1996
Brisbane

Before the Hon. Justice Mackenzie

[Thomson v. Glandore P/L & Ors.]

BETWEEN:

HEATHER ELIZABETH THOMSON  
  Plaintiff
AND:  

GLANDORE PTY. LTD. (In Liquidation)
  First Defendant
AND:
  NOEL F. LANGLEY
  Second Defendant
AND:
  JOHN R. WARREN
  Third Defendant
  COSTS ORDERS - MACKENZIE J.

Judgment delivered 22 November, 1996

CATCHWORDS: Costs orders - medical negligence trial - plaintiff successful as against second defendant and partially successful against third defendant - plaintiff wholly unsuccessful against first defendant -  second and third defendants wholly unsuccessful in contribution proceedings against first defendant.

Counsel:Mr S. Williams QC with him Mr J Kimmins for the plaintiff. 

Mr D Fraser QC with him Mr P Gaffney for the first defendant.

Mr N.M Cooke QC with him Mr D Tait for the second and third defendants.

Solicitors:Taylors for the plaintiff.

Ebsworth and Ebsworth for the first defendant.

Flower and Hart for the second and third defendants.

Hearing date: 20 November,  1996.

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No. 1977 of 1995

Before the Hon. Mr Justice Mackenzie

[Thomson v. Glandore P/L & Ors.]

BETWEEN:

HEATHER ELIZABETH THOMSON
  Plaintiff

AND:

GLANDORE PTY. LTD. (In Liquidation)
  First Defendant

AND:
  NOEL F. LANGLEY
  Second Defendant

AND:
  JOHN R. WARREN
  Third Defendant

COSTS ORDERS -  MACKENZIE J.

Judgment Delivered 22 November, 1996

When judgment was entered in this matter on 20 November 1996, I reserved the orders on costs.  By way of background to the orders for costs, some explanation of certain aspects of the trial are set out.
          At the instance of the three defendants, and over the opposition of the plaintiff, questions were left for the jury's consideration for the purpose of identifying, separately, whether each defendant was negligent in respect of the retention of the pack in the plaintiff's abdomen.
          The first and third defendants were exonerated by the jury's answers to Questions 1 and 4.  The second defendant was found negligent by the answer to Question 2.
          The issue whether the second and third defendants were negligent in other respects was also left to the jury.  As the first defendant had been sued only in respect of the retention of the pack, it was not involved in this issue.  The second and third defendants were both found negligent in terms of Questions 3 and 5.  The most likely basis was the pre-hysterectomy events having regard to the paucity of evidence to establish Particulars 10(d) and (h), which relate to negligence in the period after the plaintiff left hospital with the pack still in her body.  Although Mr Williams submitted to the contrary, the judgments entered reflect the view that the third defendant's responsibility was only for negligently advising the operation and for its costs, and not for the consequences of its negligent performance.
          The result of the action is as follows:-

•As to negligence during the operation:

1.The plaintiff failed against the first defendant;

2.The plaintiff succeeded against the second defendant;

3.The plaintiff failed against the third defendant.

•As to negligence in other respects:

1.The plaintiff succeeded against the second defendant;

2.The plaintiff succeeded against the third defendant.

•As between the first defendant and the second and third defendants, the first defendant successfully resisted their claims for contribution.

Although the particulars of negligence pleaded in the Statement of Claim against the second and third defendants were identical except in one respect, the evidence relating to negligence in the pre-hysterectomy period differed in detail as between the second and third defendants in some respects but in other respects was similar or complementary.
          Application was made by the plaintiff for a Sanderson or a Bullock order in respect of costs payable to the first defendant with a preference for the former.  The first defendant did not resist this, but the second and third defendants submitted that costs should follow the event.  They also submitted that costs of the contribution notice should only be recoverable from the second defendant.
          I have had regard to the discussion of Bullock orders in Gould v. Vaggelas (1984) 157 CLR 215 in considering the appropriate orders. I am satisfied that in this action it was reasonable and proper, to ensure recovery of the damages sought, to join the first defendant as well as the second and third defendants. Having regard to the conduct and the outcome of the matter, the case is not one where it is unfair to impose liability for costs on the second defendant for the costs of the successful first defendant. In making the orders, I have had regard to what I consider to be the justice of the case in light of the outcomes on the issues. I have also had regard to Mr Cooke's submissions that the plaintiff's costs against the third defendant should be taxed on a lower scale because of the amount recovered. In all the circumstances of this case, I do not accept that such an order is appropriate.
          The orders are:-

1. I order the second defendant to pay the plaintiff's costs of and incidental to the action against him (including reserved costs, if any) to be taxed, such costs to include costs which the plaintiff is ordered to pay to the first defendant pursuant to order 3 hereof;

2. I order the third defendant to pay two-thirds of the plaintiff's costs of and incidental to the action against him (including reserved costs, if any) to be taxed;

3. I order the plaintiff to pay the first defendant's costs of and incidental to the action against it, to be taxed;

4. I order the second and third defendants to pay the first defendant's costs of and incidental to the contribution proceedings to be taxed.