Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

The cross-claim should not be struck out because it was possible that, if Kruschich's negligence and Dr. Mahony's negligence were proved, some aspect of the plaintiff's condition would be a foreseeable consequence of both and therefore the same damage for the purposes of contribution under s. 5(1)(c). The damage for which both tortfeasors may be liable can be identified and apportioned in the cross-action despite any global damages award in the plaintiff's action.

Jurisdiction
Australia
Procedural Posture
High Court Appeal Concerning a Cross Claim for Contribution in a Negligence Action / Appeal From the Court of Appeal Decision Restoring Master Allen's Order; Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['contribution Between Tortfeasors' 'successive Tortfeasors' 'medical Negligence' 'novus Actus Interveniens' 'foreseeability of Damage' 'striking Out a Cross Claim']
['tort Law' 'negligence' 'civil Procedure'] ['contribution Between Tortfeasors' 'successive Tortfeasors' 'medical Negligence' 'novus Actus Interveniens' 'foreseeability of Damage' 'striking Out a Cross Claim']

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Procedural Posture

High Court Appeal Concerning a Cross Claim for Contribution in a Negligence Action / Appeal From the Court of Appeal Decision Restoring Master Allen's Order; Appeal Dismissed

Legal Issues

  1. 1 ["Whether Kruschich's cross-claim against Dr. Mahony for indemnity or contribution under s. 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 N.S.W. should be struck out as untenable." "Whether negligent medical treatment that allegedly exacerbated the plaintiff's injuries could constitute damage for which both the original tortfeasor and the treating doctor may be liable." 'Whether the fact that damages are awarded as a global sum prevents identification of the damage in respect of which contribution may be ordered.']

Ratio Decidendi

The cross-claim should not be struck out because it was possible that, if Kruschich's negligence and Dr. Mahony's negligence were proved, some aspect of the plaintiff's condition would be a foreseeable consequence of both and therefore the same damage for the purposes of contribution under s. 5(1)(c). The damage for which both tortfeasors may be liable can be identified and apportioned in the cross-action despite any global damages award in the plaintiff's action.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']