Mahony v J Kruschich

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.

Begg C.J. at C.L., allowing an appeal from Master Allen, struck out the cross-claim, holding that the case was governed by the judgment of this Court in Dillingham Constructions Pty. Ltd. v. Steel Mains Pty. Ltd. [12] . The Court of Appeal distinguished Dillingham and restored the order of Master Allen [12a] .

1. (1975) 132 C.L.R. 323. 2. [1984] 1 N.S.W.L.R. 622.

In Dillingham, a plaintiff sued his employer in negligence for damages for personal injury sustained in an accident that occurred in the course of his employment. The plaintiff had in fact been injured in two accidents, the earlier accident having occurred in the course of the plaintiff's employment by a previous employer. The plaintiff had already recovered a judgment against his previous employer and the judgment had been satisfied. When the second employer was sued, it cross-claimed against the previous employer, claiming contribution under s. 5(1)(c) and alleging that the injuries sustained in the first accident had caused physical deterioration which carried the potential of further deterioration of the kind evident as the result of the second accident. The cross-claim by the second employer against the previous employer was struck out as untenable. Barwick C.J., with the agreement of Gibbs, Stephen and Mason JJ. said [1] :

It is, to my mind, beyond question that the cross-defendant [the first employer] could not have been sued by the plaintiff for the injury which he had received by the negligence of the cross-claimant [the second employer] whilst in his employ. The cross-defendant quite clearly was not, in my opinion, a tortfeasor in relation to the plaintiff and his injury thus received at the hands of the cross-claimant.

But it was said in argument and strongly asserted that the injury of the workman by the cross-claimant was an event foreseeable as at the time of the receipt of the workman's injury sustained whilst in the employ of the cross-defendant: and that therefore the damage subsequently suffered by the workman whilst in the cross-claimant's employ was the same, or at least in part the same, as the damage suffered by him whilst in the employment of the cross-defendant. To my mind, this has only to be stated to be rejected. Even if the results of the subsequent injury could have formed part of the damage suffered by the workman by reason of the cross-defendant's negligence, it cannot and does not follow that the cross-claimant, as a tortfeasor in respect of the subsequent injury, can recover any contribution from the cross-defendant to the damages which he may be called upon to pay for the injury caused. By no stretch of language can the earlier injury be said to be the same injury as the later injury. There are two injuries, two unrelated acts of negligence, two separate and distinct torts, though occurring to the same man at different times.

Dillingham makes it clear that damage in s. 5(1)(c) is not to be equated to the "damages" awarded by a court. In negligence, "damage" is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between "damage" and "damages" is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff, so that a single sum is awarded in respect of all the foreseeable consequences of the defendant's tortious act or omission. But concurrent tortfeasors whose negligent acts or omissions occur successively rather than simultaneously may both be liable for the same damage, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other. 1. (1975) 132 C.L.R., at p. 326.

Although Dillingham was argued on the pleadings, the view which the Court must have taken of the facts pleaded was that the injury suffered in the second accident was not a foreseeable consequence of the first employer's negligence. It had been argued that the injuries sustained in the first accident "carried the potential of further deterioration of the kind evident as the result of the second tort" [2] , but the Court refused to treat the further deterioration consequent on the second accident as a result of the first accident. The original injury was taken to extend no further than "the possibility or probability of further deterioration" [3] , so that the compensation payable for the injury sustained in the second accident might have been lessened "because of the deteriorated condition of the worker already present at the time of the receipt of the further injury": per Barwick C.J. [3] . It is not to the point that the first employer had, in the Court of Appeal, made a concession that its liability could be shown by evidence to include the deterioration following the second accident: see Kornjaca v. Steel Mains Pty. Ltd. [4] . That concession was not acted on in this Court.

1. (1975) 132 C.L.R., at p. 326. 2. (1975) 132 C.L.R., at p. 327. 3. (1975) 132 C.L.R., at p. 327. 4. [1974] 1 N.S.W.L.R. 343, at p. 345.

A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v. Holland & Hannen & Cubitts [5] . But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v. Hearse [6] . Whether such a line can and should be drawn is very much a matter of fact and degree [7] . In Dillingham, the plaintiff's condition after the subsequent injury was regarded as falling outside the area of foreseeable consequences of the earlier act of negligence: there were "two injuries, two unrelated acts of negligence" [2] . Barwick C.J. said [8] :

I ought to add that in point of fact I cannot accept that, however much the workman's deteriorated condition caused by the first tort exposed him to the possibility of further harm, an injury of the nature of that suffered by the plaintiff in the employ of the cross-claimant was relevantly foreseeable. Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury: cf. Lothian v. Rickards, per Griffith C.J. [10] . Thus Gibbs J. in Dillingham [11] accepted the suggestion that if a pedestrian were run over by two drivers consecutively, and both were negligent, the injuries caused by the negligence of the second driver would be damage for which both drivers are liable if those injuries were also the foreseeable consequence of the first driver's negligence. 1. 1970 S.C. (H.L.) 20, at p. 25. 2. (1961) 106 C.L.R. 112, at pp. 124-125. 3. (1961) 106 C.L.R., at p. 122. 4. (1975) 132 C.L.R., at p. 326. 5. (1975) 132 C.L.R., at p. 327. 6. (1911) 12 C.L.R. 165, at p. 176. 7. (1975) 132 C.L.R., at pp. 329-330.

In particular circumstances, minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable. When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given: see Beavis v. Apthorpe [12] ; Moore v. A.G.C. (Insurances) Ltd. [13] ; Lawrie v. Meggitt [14] ; Price v. Milawski [15] ; Katzman v. Yaeck [16] . It may be the very kind of thing which is likely to happen as a result of the first tortfeasor's negligence: cf. per Lord Reid in Dorset Yacht Co. v. Home Office [17] . That approach is consistent with the view taken in workers' compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident (see Lindeman Ltd. v. Colvin [18] , per Dixon J.; Migge v. Wormald Bros. Industries Ltd. [19] , per Mason J.A.; on appeal [20] ), although medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: Rothwell v. Caverswall Stone Co. [21] ;Hogan v. Bentinck Collieries [22] . In the last-mentioned case Lord Reid, in dissent, expressed the opinion that there is a break in the chain of causation when a doctor is guilty of such negligence as would make him liable in damages. We think, with respect, that that test is too rigid. Some degree of medical negligence in the treatment of an injury may well be a reasonably foreseeable result of the act or omission by which that injury was inflicted, and then no clear line can be drawn to limit the original tortfeasor's liability to exclude the consequences of medical negligence.

1. (1962) 80 W.N. (N.S.W.) 852, at p. 858. 2. [1968] S.A.S.R. 389, at p. 394. 3. (1974) 11 S.A.S.R. 5, at p. 8. 4. (1977) 82 D.L.R. (3d) 130, at pp. 141-142. 5. (1982) 136 D.L.R. (3d) 536. 6. [1970] A.C. 1004, at p. 1030. 7. (1946) 74 C.L.R. 313, at p. 321. 8. [1972] 2 N.S.W.L.R. 29, at p. 48. 9. (1973) 47 A.L.J.R. 236. 10. [1944] 2 All E.R. 350, at p. 365. 11. [1949] 1 All E.R. 588, at p. 592.

However, in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is "inexcusably bad" (Martin v. Isbard [23] ), or "completely outside the bounds of what any reputable medical practitioner might prescribe" (Lawrie v. Meggitt [24] ) or "so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury" (South Australian Stevedoring Co. Ltd. v. Holbertson [25] ) or "extravagant from the point of view of medical practice or hospital routine": Hart and Honore, Causation in the Law (1959), p. 169. In such a case, it is proper to regard the exacerbation of a plaintiff's condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation.

1. (1946) 48 W.A.L.R. 52, at p. 56. 2. (1974) 11 S.A.S.R., at p. 8. 3. [1939] S.A.S.R. 257, at p. 264.

It is neither necessary nor possible to determine at this stage of the action whether any and, if so, what aspects of the plaintiff's present condition ought to be regarded as the foreseeable consequence of both Kruschich's negligence if that negligence be proved and Dr. Mahony's negligence if that negligence be proved. At this stage of the action, the plaintiff's condition and the negligence of both Kruschich and Dr. Mahony are matters of allegation only. There are no facts admitted or proved by which to determine those issues.

If, when the action comes to trial, it is proved that an aspect of the plaintiff's condition is properly to be regarded as a foreseeable consequence of both Kruschich's negligence and Dr. Mahony's negligence, Kruschich will be entitled to seek contribution under s. 5(1)(c) from Dr. Mahony in respect of so much of the damages awarded against it as relates to that aspect.

It was objected that, as an award of damages is made in a global sum, it is not possible to dissect an amount out of the total award, and to identify it as an amount to which both tortfeasors are liable to contribute. It was argued that the "damage" to which s. 5(1)(c) refers is the same damage as that to which s. 5(1)(b) refers - that is, damage in respect of which an action may be brought against both tortfeasors - and that s. 5(1)(c) must have a reciprocal operation: either tortfeasor may recover contribution from the other in respect of the damage to which that provision applies. Then it was said that, as the original alleged tortfeasor, Kruschich, is liable for more "damage" than the damage for which the subsequent alleged tortfeasor, Dr. Mahony, is liable, there is no identity in the "damage" and s. 5(1)(c) cannot operate. It is clear, of course, that any damage for which Kruschich alone is liable could not be the subject of contribution by Dr. Mahony, but there is no reason why the damage for which both alleged tortfeasors are liable cannot be identified and why s. 5(1)(c) cannot operate with respect to that damage. The damage for which both tortfeasors are liable is indeed the same damage, but the circumstance that the first tortfeasor is alone liable for whatever damage is caused before the subsequent tort is committed is no argument against apportioning liability for the damage caused by both tortfeasors. There is no procedural impediment to the ascertainment of the damages which are to be the subject of an order for contribution. In the event of the plaintiff recovering a judgment against Kruschich and in the event of Kruschich proving that Dr. Mahony is a concurrent tortfeasor, the amount of the plaintiff's damages in respect of which a contribution order might be made can be determined in the cross-action. That is not a matter in issue in the proceedings between the plaintiff and Kruschich.

It follows that the cross-claim should not be struck out. If Kruschich be held liable in damages to the plaintiff, Kruschich may be able to prove in the cross-action that if Dr. Mahony had been sued by the plaintiff, he would have been liable for some of the damages recovered by the plaintiff and, in that event, Kruschich will be entitled to an order for contribution under s. 5(1)(c).