C S v Anna BIEDRZYCKA [2011] NSWSC 1213

Supreme Court New South Wales

Medium Neutral Citation: C S v Anna BIEDRZYCKA [2011] NSWSC 1213 Hearing dates: 15, 16 and 17 November 2010; 20th May 2011; 2 and 16 June 2011; 12th August 2011; 27 September 2011 Decision date: 17 October 2011 Jurisdiction: Common Law Before: Latham J Decision: I vacate the orders made on 20 May 2011. I make the following orders: 1. Verdict and judgment for the third defendant on the Amended First Cross Claim against the fourth defendant by way of contribution in the amount of $188,400.00. 2. The fourth defendant to pay pre-judgment interest to be calculated pursuant to s 100 of the Civil Procedure Act on the judgment sum. 3. The fourth defendant to pay the third defendant's costs of the Amended First Cross Claim in relation to the claim for contribution on a party-party basis up to 14 January 2010 and thereafter on an indemnity basis. 4. Verdict for the second defendant on the amended First Cross Claim against the fourth defendant in relation to the claim for contribution. 5. Verdict for the second and third defendants on the Amended First Cross Claim against the fourth defendant in relation to the breach of contract claim. 6. Verdict for the fourth defendant on the amended Second Cross Claim against the second and third defendants in relation to the breach of contract claim. 7. The second defendant to pay the fourth defendant's costs on the Amended Second Cross Claim in relation to the breach of contract claim on a party-party basis. 8. The Stay of the Judgment in favour of the fourth defendant against the plaintiff is discharged 9. Otherwise, no order as to costs. Catchwords: TORTS - negligence - cross-claim for contribution - transmission of a medical condition scheduled under Public Health Act 1991 - medical centre - duty of care owed by provider of administrative services and facilities - failure to keep current and accurate patient records was a necessary condition of the occurrence of the harm - indemnity clause does not defeat claim for contribution - apportionment of responsibility and damages - CONTRACTS - breach of service agreements by second defendant's company and by third defendant - breach of service agreement by fourth defendant - second defendant cannot recover personally for breach as not party to agreement - principle of circuity of action does not apply as measure of damages is not precisely the same - principle of equitable contribution does not apply as second and third defendants bore greater burden of liability Legislation Cited: Civil Liability Act 2002 Public Health Act 1991 Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 Caltex Refineries (Qld) Pty Ltd v Stavar & Ors. [2009] NSWCA 258; 75 NSWLR 649 Climax Management v Scansash [2002] NSWCA 167 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Elayoubi v Zipser [2008] NSWCA 335 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd [2010] NSWSC 155 Graham v Hall [2006] NSWCA 208; 67 NSWLR 135 Imperial Furniture Pty Ltd v Automatic FireSprinklers Pty Ltd (1967) 1 NSWLR 29 James Hardie & Co Pty Ltd v Roberts [1999] NSWCA 314; 47 NSWLR 425 Laresu Pty Ltd v Clark [2010] NSWCA 180 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McCamley v Harris [1997] NSWSC 360 Mobbs v Kain [2009] NSWCA 301 Oxley County Council v Macdonald [1999] NSWCA 126 Redken Laboratories (Australia) Pty Ltd v Docker [2000] NSWCA 100 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 The Eastern Extension, Australasia and China Telegraph Co. Ltd v Federal Commissioner of Taxation [1923] HCA 62; (1923-24) 33 CLR 426 Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; 186 CLR 574 Walmsley v Cooper (1839) 11 A. & E 221 Zanner v Zanner [2010] NSWCA 343 Category: Principal judgment Parties: C S - Plaintiff Anna Biedrzycka - 1st Defendant Colin Gross - 2nd Defendant Harry Johnson - 3rd Defendant Idameneo (No. 123) Pty Ltd - 4th Defendant Representation: Counsel: A Sullivan QC / Ms J Lonergan - Plaintiff GM Watson Sc / NE Chan - Defendants Solicitors: Slater and Gordon Lawyers - Plaintiff TressCox Lawyers - 1st Defendant Avant Law Pty Ltd - 2nd and 3rd Defendants HWL Ebsworth Lawyers - 4th Defendant File Number(s): 2007/264861