X and Y (by her Tutor X) v PAL (On question of costs) [1991] NSWCA 302

X and Y (by her Tutor X) v PAL (On question of costs) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY (1), CLARKE (2), AND MEAGHER (3) JJA 28 May 1991, 7 June 1991

[1991] NSWCA 302 Costs

Mahoney JA I agree with Clarke JA.

Clarke JA When the Court delivered judgment in these matters it reserved the question of what order should be made in respect of the costs of the trial for further consideration after the parties had made submissions.

We have now heard those submissions. Broadly, the appellants seek an order that they recover all their costs of the trial upon the basis that they were successful. The respondents, for their part, submit that it is appropriate that the respondents pay 5 per cent of the appellants' costs of the trial and that the appellants pay 95 per cent of the respondents' costs of the trial. The primary basis for the respondents' submissions was that they had been successful in the issue which occupied in excess of 95 per cent of the time taken at the trial.

Before dealing with the competing submissions it is convenient to point out that there were, in essence, four issues in contest at the trial. They were: (a) Whether Y was born with syphilis as a consequence of the negligence of the respondents; (b) Whether Y's deformities and brain syndrome resulted from syphilis; (c) Whether the first and third respondents owed a duty of care to Y; and (d) Whether X suffered nervous shock as a result of the respondent's negligence.

This Court ruled in favour of the appellants on issues (a), (c) and (d) and in favour of the respondents on issue (b). In so doing they upheld the trial judge's conclusions on issues (a) and (b) but reversed them on issues (c) and (d). In the result the appellants succeeded in their actions to the extent that each obtained a small judgment.