1.4 Whether the incident on or about 21 November 2002… was caused by the second defendant's negligent manufacture and/or design of the failed part; . . ."
22 The second defendant indicated in the same document that it intended to establish facts that in effect answered those issues favourably to it. The plaintiff contended that issue 1.4 identified by the second defendant was wider than the second defendant had expressed it.
Consideration
23 What if anything did the first defendant say or do in this case that arguably led the plaintiff to sue the second defendant? The first defendant denied liability at all times up until the hearing and even then only conceded breach of duty but not causation. It was entitled to do so. The denial may have served to discomfort the plaintiff and his legal advisers but that was a normal and natural consequence of the litigious process. There was nothing in that position, which the first defendant was entitled to adopt, that necessarily, as opposed to cautiously or conservatively, led the plaintiff to cast wider in search of a possible additional or alternative defendant. Neither the plaintiff nor the first defendant suggested that there was not a respectable argument that the second defendant was or may have been liable. The first defendant was not obliged to concede liability or to make admissions in order to remove the second defendant from contention: see Palmer at par [35] (supra).
24 I do not think that there was any conduct on the part of the first defendant that can be identified or characterised as conduct that makes it fair to impose any liability upon it for the costs of the second defendant. Even taking the wider view of the conduct of the first defendant as any conduct by him or state of affairs in which he was an integral part, none appears to me to be conduct that alone made it proper, or fair and reasonable, that the second defendant be joined to the proceedings. Put another way, there was not in this case any sufficient relationship between the plaintiff's decision to join the second defendant and anything that the first defendant did or refrained from doing. The fact that the plaintiff's decision to do so may have been given some encouragement or support from the first defendant's adoption or endorsement of the plaintiff's allegations against the second defendant in its cross-claim cannot for present purposes be converted by the plaintiff into conduct that caused him to join the second defendant to the proceedings in the first place.
25 The first defendant did not mislead the plaintiff in any way, nor did he conceal anything from the plaintiff, that made it imperative that the second defendant be joined. The statement by Mr Moore in paragraph 3 of his affidavit, that he reached the conclusion that the plaintiff's case could only be properly presented by the joinder of two additional defendants to "cover" the first defendant's allegation that his steering had failed, was no more than a forensic decision based upon an appreciation of the possibility that the first defendant may have had a complete defence to the plaintiff's claim against him. As discussed earlier, and as emphasised by the first defendant in his submissions, defending the plaintiff's case was something that the first defendant was entitled to do and for which he cannot in the present context be criticised. Mr Moore's evidence only supports a conclusion that it may have been reasonable to join the second defendant. However, it must in addition be shown that the conduct of the first defendant was such as to make it fair to impose some liability on him for the costs of the second defendant. I do not consider that it would be fair to do so.
26 The matter can be tested in the following way. What did the first defendant not do that he should have done, or what did he do that he should not have done, whether in the context of the litigation or at any other relevant time, that led to the plaintiff's decision to join the second defendant? The answer in my view is nothing. It is pertinent to observe that Mr Moore was influenced in his decision to join the second defendant by the first defendant's neutral contention that his steering failed, not by a weighted contention that it did so by reason of a design (or any other) fault on the part of the second defendant. Whilst I do not suggest that a contention of the second type would have meant that the plaintiff's present application would necessarily have succeeded, the distinction serves to emphasise that the first defendant did no more than foreshadow a reliance upon what in due course turned out to be accepted by all parties and their experts. Although it may seem like a harsh counsel, whatever the plaintiff decided to do was clearly a forensic decision that he made, or that was made on his behalf, but not a decision that was caused by the conduct of the first defendant. Senior counsel for the plaintiff spoke during his submissions of "the aura of responsibility [on the part of the first defendant] for denying liability causing a plaintiff . . . to look elsewhere for his remedy". As I have already indicated, the first defendant was entitled to deny liability and the plaintiff's search for another defendant was his choice. It was not "caused" in any relevant sense by the first defendant.
Conclusions
27 It follows that the plaintiff should pay the costs of the second defendant.
Orders
28 I have been informed that the quantum of the plaintiff's damages has been agreed. It is appropriate that my final orders include a verdict for the agreed amount. I therefore make the following orders:
1. Verdict for the plaintiff against the first defendant for $3,200,000.