(b) He erred in holding that the claims against each defendant were distinct.
8 It was submitted on Mr Taylor's behalf that he was unaware of the precise relationship between the New South Wales Touch Association and Mr Keogh, and between them and the Council. Therefore, he did not know which defendant was liable.
9 In support of this submission, reference was made to the fact that the Council disputed the allegation that Mr Keogh had "booked" the Velodrome on the day of the accident and argued that Mr Keogh had required play to proceed on the Velodrome field without the Council's knowledge, even when he knew that the touch footballers were not entitled to be there.
10 While there is some substance in these points, I think that they are answered by the finding of Barr J that Mr Taylor "always intended to and did pursue to the end his claims against the other defendants". In other words, Barr J found that, irrespective of the degree of uncertainty in Mr Taylor's mind, he had determined, independently, to sue all the defendants, and it was not the arguments on the part of the Council that caused him to maintain his claim against the New South Wales Touch Association and Mr Keogh. I am not persuaded that his Honour was wrong in making these findings.
11 It was submitted on Mr Taylor's behalf that the conduct of the Council and Mrs Benedet in denying their liability and pursuing cross-claims against Mr Keogh and the New South Wales Touch Association, created uncertainty in Mr Taylor's mind. For that reason, it was said, it was not safe for him to do anything other than proceed against Mr Keogh and the New South Wales Touch Association. Again, I am not persuaded that this submission is correct. Nothing has been shown to refute the finding by Barr J that Mr Taylor always intended, independently, to pursue his claims against all the defendants "to the end".
12 In regard to the finding that the claims against each defendant were distinct, it was submitted on Mr Taylor's behalf that the variation in the particularisation of negligence of each claim would not preclude the making of a Sanderson order. It was said that the nature of the duty owed to Mr Taylor by all the defendants was the same, and it arose out of the same factual situation.
13 While each claim against each defendant was for breach of a duty of care, each, in a sense, was distinct. The distinction lay in the differences in the scope of the duty of care that each was said to have owed Mr Taylor and the differences in the way that each breached the duty of care owed by it or him. Again, I am not persuaded that Barr J was wrong in considering that the differences between the nature of the claims had a bearing on the exercise of his discretion as to whether a Sanderson order should be made.
14 I am not satisfied that the conduct of the unsuccessful defendants was such as to make it fair to impose some liability on any of them for the costs of the successful defendants. Nor am I persuaded that the joinder of Mr Keogh and the New South Wales Touch Association was reasonable and proper to ensure recovery of the damages sought.
15 In the circumstances I would not grant Sanderson or Bullock orders of the kind sought by Mr Taylor.
16 As regards to the claim for indemnity costs, on 21 December 2001 the solicitors for Mr Taylor served on the solicitors for the Council and Mrs Benedet an offer of compromise in the following terms:
"1. That the verdict and judgment for William Roy Taylor against Canterbury Municipal Council in the Court below be varied by substituting judgment in favour of William Roy Taylor for $275,000.00.
2. In lieu of Order 4 in the Court below, Canterbury Municipal Council be ordered to pay William Roy Taylor's costs of and incidental to the trial, and of and incidental to the Appeal, as agreed or assessed.
3. In lieu of Order 6 in the Court below, Canterbury Municipal Council be ordered to pay the costs of Christopher John Keogh, New South Wales Touch Association and Karen Benedet of an [sic] incidental to the trial and the Appeal, as agreed or assessed."
17 The offer of compromise was made on the basis that the Council alone would be liable for Mr Taylor's damages. No provision was made in the offer for any liability on the part of Mrs Benedet in her capacity as the Executrix of the Estate of the late Franco Benedet. Nevertheless, Mr Taylor seeks orders that both the Council and Mrs Benedet pay his costs of the appeal on an indemnity basis as from the date of the making of the offer. In the circumstances, I do not understand the basis of the claim against Mrs Benedet and I would not accede thereto.
18 Mr Taylor claims an order that the Council pay his costs of the appeal on an indemnity basis as from 21 December 2001. The effect of the judgment of this Court is that the respondent is entitled to entry of judgment against the Council and Mrs Benedet in the sum of $390,532.50 together with interest. The Council is to be responsible for two-thirds of the judgment and Mrs Benedet for one-third. On the assumption that the Council will be able to recover that one-third from Mrs Benedet (should it pay the full amount of $390,532.50 to Mr Taylor), it would have to pay a net sum of approximately $260,354. This sum is less than the $275,000, the subject of the offer of compromise.
19 The offer of compromise did not mirror the effect of the judgment of this Court and in all the circumstances I am not persuaded that the fact that an offer in those terms was made should lead to an order that the Council pay the costs of the appeal on an indemnity basis.
20 The parties are in agreement that orders should be made in terms of paragraphs 1 to 7.3 of the draft minutes of 25 March 2002, a copy of which is attached hereto. I would make such orders but would make no further order.
21 MATHEWS AJA: I agree with Ipp AJA.