Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ. Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 11 Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ.

The second respondent, Branko Glogovic, is the plaintiff in a negligence action pending in the Common Law Division in the Supreme Court of New South Wales against his employer, J. Kruschich (Demolitions) Pty. Ltd. ("Kruschich"). By his statement of claim the plaintiff alleged that he sustained injuries on 4 April 1976 when he was employed in the demolition of the old power station at Lithgow. The plaintiff gave particulars of his injuries and disabilities. He alleged that his injuries required considerable medical treatment.

Among the medical practitioners who treated him was Dr. Mahony, the appellant. Kruschich brought a cross-claim against Dr. Mahony alleging, inter alia, that during the years 1977 to 1982 Dr. Mahony treated the plaintiff by various medical, surgical or diagnostic procedures and "was negligent in and about carrying out the aforesaid procedures to and treatment of the plaintiff". Kruschich alleged that Dr. Mahony's negligence "caused or contributed to the continuing injuries and incapacities alleged by the plaintiff and for which he sues the defendant". Kruschich claimed against Dr. Mahony a complete indemnity or, alternatively, contribution pursuant to s. 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 N.S.W. ("the Act"). Section 5(1)(c) is in a familiar form:

Where damage is suffered by any person as a result of a tort (whether a crime or not)—

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.