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CHAPTER 5 - THE COMMONWEALTHS OFFER OF SETTLEMENT
5.1 Paragraph 1(c) of the terms of reference requires the Committee to
report on `whether the Commonwealth's offer to the recipients was fair
and adequate and gave the recipients sufficient time and information to
make a considered response'.
5.2 The offer of settlement, first made in April 1997, relates to a number
of common law `nervous shock' claims made by hormone recipients. The claims
are not claims for actual physical harm resulting from CJD. Rather, they
concern psychological harm caused by the fear of contracting CJD in the
future, as well as medical and like expenses which are continuing and
economic loss.
5.3 Under the offer of settlement, the Commonwealth undertook to pay
compensation if a plaintiff in a nervous shock proceeding actually contracted
CJD. The Commonwealth also undertook to pay the plaintiffs' legal costs
of the nervous shock litigation, regardless of whether or not the plaintiff
eventually contracted CJD. These benefits supplement those available under
the Human Pituitary Hormones Trust Account.
5.4 The Commonwealth did not agree to pay damages in respect of nervous
shock prior to a plaintiff actually contracting CJD.
5.5 Details of the operative provisions of the offer of settlement are
outlined below. Where the offer is accepted by a plaintiff, an Agreement
and Release would be signed, under which:
- The Commonwealth undertakes that, if the plaintiff contracts CJD as
a result of hPG or hGH treatment provided under the HPAC program, it
will pay an amount of compensation to the plaintiff or the plaintiff's
legal representative (cl.3.1).
- The amount of compensation is to be assessed in accordance with the
principles of common law assessment of damages as at the date that the
plaintiff or the plaintiff's legal representative gives notice to the
Commonwealth that the plaintiff has been diagnosed with CJD (cl.3.2).
- The assessment of damages `shall not include any allowance by way
of compensation for any damages, costs or expenses' paid to or on behalf
of the plaintiff or the plaintiff's family pursuant to the Human Pituitary
Hormones Trust Account Fund (`the Fund') (cl.3.3).
- Any question of interpretation of clause 3.1 that cannot be resolved
by negotiation shall be determined by an arbitrator appointed pursuant
to the Arbitration Act 1985 (cl.4).
- The settlement will not affect the plaintiff's entitlement to receive
payments in accordance with the provisions of the Fund (cl.5.1).
- The plaintiff's court proceedings will be struck out (cl.6).
- Commonwealth Serum Laboratories and the Commonwealth of Australia
will pay the plaintiff's costs of the proceedings (cl.7)
- In consideration of the Commonwealth undertaking to pay the plaintiff's
medical expenses if they contract CJD, and paying their legal costs
of the nervous shock proceedings, the plaintiff releases the Commonwealth
from the nervous shock claim, and any claim `of whatsoever kind arising
out of or in respect of this proceeding' including any claim regarding
CJD (other than a claim based on this settlement) (cl.8.1).[1]
5.6 The offer of settlement included clauses concerning the background
to the nervous shock claims and the positions of the parties as to the
merits of their claims and defences. One of these clauses was drawn to
the Committee's attention in evidence.[2]
In the original version of the Agreement and Release, clause 2.2 provided
that `the defendants have denied and maintain a denial of liability in
respect of any claim brought by the plaintiff in the proceeding'. An additional
clause has since been included which provides that `the plaintiff maintains
that the Defendants are liable in respect of any claim brought by the
plaintiff in the proceeding'. A copy of the Agreement and Release is at
Appendix 6.
5.7 The new clause was added by AGS at the request of the CJDSGN and
with the Department's agreement. The Committee has been advised that the
insertion did not change the previous settlement agreement, but rather,
expressed explicitly, for the benefit of the plaintiffs, what was already
implicit. Concern was expressed as to whether there was a need to have
those who had already signed re-sign the agreement. The Department and
AGS have agreed that if a plaintiff who had already signed wanted to sign
the new agreement the AGS would arrange for that course of action. Under
either agreement a plaintiff will be bound by the agreement.[3]
5.8 The Committee notes that the operative provisions in the two agreements
remain the same. In particular, each involves the Commonwealth making
the same undertakings as to common law damages if the plaintiff contracts
CJD and paying legal costs, and each involves the plaintiff granting a
release to the defendants in respect of liability.
5.9 The offer of settlement provides that in the event of a plaintiff
contracting CJD, damages would be assessed on a common law basis. In personal
injuries actions, both `special' and `general' damages are awarded under
the common law. Special damages are capable of precise calculation. They
include out-of-pocket expenses, such as medical expenses, and loss of
earnings up to the date of trial. General damages cannot be calculated
with precision. They include damages for pain and suffering, loss of faculties
and loss of future earnings.[4]
5.10 The offer of settlement makes reference to the entitlement of a
plaintiff under the Fund. The Committee has noted that the Fund provides,
inter alia, for ongoing funding for support groups and counselling
services see Appendix 4.
5.11 The Commonwealth initially made the standard offer to plaintiffs
in nervous shock proceedings in April 1997. It is worth setting out some
of the background to those proceedings as disclosed in evidence and submissions
to the Committee.
5.12 In early 1993 the Melbourne firm now known as Rennick Briggs Lawyers
(`Rennick Briggs') had been acting in proceedings on behalf of the husbands
of several women hormone recipients who had died of CJD. Claims had been
issued that the recipients had been treated negligently and died as a
result of that negligence causing loss to their family members. These
claims were subsequently settled prior to trial in December 1994.
5.13 Members of the recipient community became aware that Rennick Briggs
were acting for the husbands. A number of recipients, most of whom did
not appear to demonstrate symptoms of CJD, retained Rennick Briggs.[5]
In May 1993, Rennick Briggs issued writs in the Supreme Court of Victoria
on behalf of a number of plaintiffs. These writs claimed that the plaintiffs,
all of whom had been treated with hPG or hGH, had suffered psychiatric
injury (otherwise known as `nervous shock') arising from a fear of contracting
CJD.
5.14 Rennick Briggs advised the Committee of two factors which influenced
the issuing of the writs at that time. First, there was concern that if
the proceedings were not issued, they might later become statute barred.
Secondly, there was concern that one or two of the plaintiffs might have
been displaying early symptoms of CJD. 6
5.15 Following the issue of the first writs, Rennick Briggs were retained
by a number of other hormone recipients throughout Australia. Eventually
Rennick Briggs acted for 133 plaintiffs. The firm communicated with its
clients by travelling interstate and providing advice by way of circulars.[7]
5.16 The evidence before the Committee suggests that Rennick Briggs may
have run the proceedings on a contingency basis. The firm told the Committee:
As for Solicitor's fees, we were prepared to await the outcome
of the trial. If APQ was successful, we would have recovered costs on
a party/party basis from the Defendants.[8]
5.17 Rennick Briggs advised the Committee that they obtained the agreement
of counsel and expert witnesses to render their fees but not seek payment
until a result had been achieved which included the recovery of legal
costs and disbursements. The firm advised the Committee that they had
incurred disbursements for travel, accommodation, stamp duty on writs
and other contingent liabilities said to total over $100,000 by early
1997.[9] As detailed in the following
chapter, Rennick Briggs was unable to obtain legal aid from the Commonwealth.
5.18 One of the claims in which Rennick Briggs acted was brought by a
plaintiff known as APQ. The writ in APQ's case was issued on 15 September
1993. APQ alleged that she had been treated with hPG between 1980 and
1985. She claimed that she had suffered severe injury, loss and damage
from (among other things) severe stress syndrome, severe psychiatric reaction,
depression, anxiety and shock. The claims also included medical and like
expenses which are continuing and economic loss. APQ did not allege that
she actually suffered from CJD.[10]
5.19 The Australian Government Solicitor (AGS) acted for the defendants
(CSL Ltd and the Commonwealth of Australia) in APQ's case and the other
matters commenced by Rennick Briggs.
5.20 Rennick Briggs considered that APQ's case had relatively good prospects
of success, and ran it as a test case. APQ had been treated with hPG in
the 1980s when, arguably, the Commonwealth should have been aware of the
risk of CJD.[11] The Australian
Government Solicitor did not accept that APQ's case was a test case. It
took the view that if APQ had succeeded, her case could not be relied
upon by plaintiffs who had been treated with hGH or hPG before 1981.[12]
5.21 Because Rennick Briggs treated APQ's case as a test case, it was
ready for hearing before any of the 132 other nervous shock cases filed
by that firm.
5.22 In late 1994, the AGS applied to Justice Harper of the Supreme Court
to strike out APQ's claim, arguing that it did not reveal a cause of action.[13]
In February 1995, Justice Harper dismissed the strike-out application.[14]
Justice Harper's reasons for decision are referred to below.
5.23 In mid 1996 the court set down APQ's case for a hearing commencing
on 7 April 1997. The AGS advised the Committee that the hearing would
have taken between 12 and 17 weeks, generating between $11.8 million in
legal costs for the parties.[15]
Rennick Briggs estimated that the trial would last 8 to 12 weeks.[16]
In its submission, the AGS predicted that legal costs would be exceeded
if the matter went on appeal. AGS also stated that the Commonwealth would
have appealed any adverse decision.[17]
5.24 The Committee understands that the New South Wales firm of Macedone
Christie Willis Lawyers (`Macedones') have commenced proceedings in the
Supreme Court of NSW on behalf of nine pituitary hormone recipients and
act for some former clients of Rennick Briggs who have not accepted the
Commonwealth's offer.
5.25 The Committee received a number of submissions and heard evidence
at its public hearings concerning the settlement negotiations between
the Commonwealth and hormone recipients who had brought nervous shock
claims.
5.26 In order to understand the background to the negotiations that took
place between the Commonwealth and APQ, it should be noted that APQ applied
to the Attorney-General's Department for legal aid, and legal aid was
ultimately refused. As a result of the failure of the legal aid application,
APQ, and her legal advisers, faced considerable liabilities relating to
trial disbursements. Issues relating to the Commonwealth's refusal to
grant legal aid are considered the following chapter.
5.27 On 6 June 1995, Rennick Briggs offered to settle APQ's nervous shock
claim if the defendants paid APQ $85,000 and her legal costs. This offer
was rejected by the defendants.[18]
5.28 On 18 March 1997, which was about three weeks before the hearing
was due to begin, Rennick Briggs told the AGS that it was prepared to
advise its clients to settle for a global payment of $2,000,000, which
included legal costs. This was put on the basis that the rights of clients
who might contract CJD were reserved. The AGS calculated that this worked
out to $15,100 per plaintiff. Taking into account legal costs, the AGS
estimated that the offer amounted to $11,000 per plaintiff.[19]
5.29 On 27 March 1997, the AGS received instructions from the Department
of Health and Family Services to make an offer of settlement to APQ. On
28 March 1997, some nine days before the hearing was due to begin, senior
counsel for the defendants conveyed the offer of settlement to senior
counsel for APQ. On 3 April 1997, APQ's acceptance of the offer was communicated
to the AGS.[20]
5.30 On 4 April 1997 the AGS wrote to Rennick Briggs offering to settle
on the same terms with all Rennick Briggs' clients. The AGS advised the
Committee that the Commonwealth did not, at that time, impose a deadline
for acceptance.[21] In evidence,
the relevant AGS solicitor, Mr Geoff McDonald, told the Committee that
it was an oversight for the AGS not to set a deadline at this stage. This
was because it was necessary for the AGS to prepare approximately 135
agreements embodying the offer of settlement ready for Messrs Rennick
Briggs to send out to their clients that night. Mr McDonald told the Committee:
We were working flat out all of that day producing the required
documents. It was a two-page, three-line letter which accompanied the
release agreements. It was by oversight that I did not put a time on.[22]
5.31 On the same day, 4 April, Rennick Briggs wrote to their clients,
advising them of the Commonwealth's offer. After setting out the terms
of the offer, the letter stated `we must have your instructions no later
than 24th April 1997'.[23] This
deadline of 24 April was imposed by Rennick Briggs for its own purposes,
and not by the Commonwealth. Rennick Briggs' letter did not explain the
reason for this deadline.
5.32 Rennick Briggs' letter of 4 April, a copy of which is at Appendix
7, also advised that:
- plaintiffs were free to accept or reject the offer;
- the Commonwealth's offer did not include compensation for psychiatric
injury;
- however, it did provide plaintiffs with a right to compensation should
they contract CJD;
- the right to compensation would not depend on such liability issues
as when a given plaintiff was treated, or with which hormone they were
treated;
- in this regard, a UK High Court decision (made 19 July 1996) was relevant
because it decided that only people treated for the first time after
1 July 1977, and who contracted CJD, were entitled to compensation;
- trial disbursements were expected to be substantial, and in the light
of the lack of legal aid, Rennick Briggs was not in a position to conduct
any further cases to trial.
The letter concluded that Mr Jack Rush, QC, Mr John Philbrick of Counsel,
and Rennick Briggs strongly recommend that plaintiffs accept the proposal.[24]
5.33 On 18 April 1997, the AGS sent a further letter to Rennick Briggs
advising that the Commonwealth would seek to set proceedings down for
trial where a plaintiff refused a settlement offer. This letter also advised
that `in the event that the Commonwealth is successful in defending the
action or the plaintiff discontinues the action, the Commonwealth will
pursue recovery of its legal costs'.[25]
5.34 On 28 April 1997, Rennick Briggs wrote to clients who had rejected
or not yet accepted the Commonwealth's offer. Rennick Briggs drew attention
to the Commonwealth's threat regarding the recovery of legal costs. They
also advised clients who wished to reconsider and accept the Commonwealth's
offer to notify Rennick Briggs by 14 May 1997. Clients were also told
that Rennick Briggs would be filing a Notice of Ceasing to Act after that
date.[26] A copy of this correspondence
is at Appendix 8.
5.35 Subsequently, Rennick Briggs filed Notices of Ceasing to Act in
those proceedings in which clients had not accepted the Commonwealth's
offer of settlement. In relation to proceedings where the Commonwealth's
offer had been accepted, consent orders were filed with the court bringing
the proceedings to an end in accordance with the offer.
5.36 On 21 and 23 May 1997 the AGS wrote to three former clients of Rennick
Briggs advising that the Commonwealth would allow them until 30 May 1997
to accept the offer.[27]
5.37 The Committee received evidence that about 90 of Rennick Briggs'
clients have accepted the Commonwealth's offer of settlement.[28]
5.38 On 4 April 1997, Macedones contacted the AGS and asked whether the
offer to clients of Rennick Briggs also extended to their clients. A complicating
factor here was that doctors and hospitals had also been joined as defendants.
Accordingly, it was necessary for the AGS to liaise with the Medical Defence
Union.[29]
5.39 On 30 April 1997, the AGS wrote to Macedones making the Commonwealth's
settlement offer. The letter gave 14 days to respond. On 8 May 1997, Macedones
requested an extension to 28 May. The AGS granted an extension to 30 May
1997. On 4 June the AGS extended this further until 30 June 1997.[30]
5.40 The Committee is not aware of any clients of Macedones yet having
accepted the Commonwealth's offer.
5.41 On 26 June 1997, upon a notice of motion by Senator Bishop, the
Senate called on the Government to leave open the offer of settlement
until hormone recipients had had an opportunity to consider the Government's
response to this report.[31]
5.42 The Committee heard evidence that, in accordance with the Senate's
request, the Commonwealth has left the offer open pending the final results
of this Committee's inquiry.[32]
5.43 The submission of the Department of Health and Family Services advises
that on 23 May 1997 the offer of settlement was extended to people formerly
treated under the AHPHP who had not commenced legal action against the
Commonwealth and continue not to do so.[33]
5.44 In evidence, the Committee heard of a number of concerns relating
to the settlement process and the fairness and adequacy of the Commonwealth's
offer.
5.45 In considering whether the Commonwealth's offer was fair and adequate,
the plaintiffs' prospects of success in the nervous shock proceedings
are relevant.
5.46 The Committee heard conflicting evidence on this issue. The Committee
cannot offer any conclusion on the merits of these legal arguments. However,
it is useful to outline them.
5.47 First, the AGS contended that a plaintiff would have to establish
that the risk of CJD was reasonably foreseeable when the plaintiff was
given hormone treatment. The AGS argued that, in addition, there needed
to be relationship of `proximity'. Without reasonable foreseeability and
proximity, there could be no duty of care to a plaintiff.[34]
5.48 In relation to the question of reasonable foreseeability, the AGS
argued that the date of treatment or arguably the date of collection of
glands and the manufacture of batches received by each plaintiff was relevant.[35]
5.49 In this regard, the Committee notes that Justice Morland of the
UK High Court held that, subject to detailed evidence about their particular
cases, claims on behalf of recipients of human growth hormones who began
therapy in the UK after 1 July 1977 and had developed CJD should
succeed.
5.50 Secondly, the AGS maintained that a plaintiff would have to show
that the Commonwealth had failed to exercise reasonable care when the
plaintiff was treated with hormone. In other words, it would have to be
shown that if there was a foreseeable risk, the Commonwealth did not take
adequate steps to address this risk. The AGS advised the Committee that
it would be necessary to establish this to show that there was a breach
of duty.[36]
5.51 Thirdly, the AGS contended that a plaintiff would have to demonstrate
that he or she suffered from a recognisable psychiatric injury in order
to succeed in a nervous shock claim.
5.52 The AGS told the Committee that Macedones had recognised this requirement
by insisting that any former client of Rennick Briggs must obtain a medical
report from a psychiatrist verifying that the plaintiff does suffer from
nervous shock.[37]
5.53 Fourthly, the AGS contended that a plaintiff would have to establish
that the common law actually compensated for nervous shock where a plaintiff
fears, but has not actually contracted, CJD.[38]
5.54 The Committee received much conflicting evidence on this issue.
5.55 The AGS submitted that, for policy reasons, the courts seek to confine
the situations in which damages are recoverable for pure nervous shock,
when there is no physical injury:
Basically, the law as it stands in Australia and Britain does
not allow a claim for nervous shock merely because a person is advised
of a distressing fact, such as in the present cases, remote as it may
be, the risk of contracting CJD. What is required is a single phenomenon
(such as an accident) with accompanying "proximity", and not
simply a mere apprehension by a plaintiff that he/she may suffer a disease
at some indeterminate time in the future.[39]
5.56 The AGS maintained that the policy of restricting damages for nervous
shock was based on a fear of `unlocking the floodgates':
The clear reluctance of the courts to permit a claim based on
a fear of contracting a disease is understandable. For example, all
the residents of Canberra who had asbestos insulation in their ceilings
may claim an entitlement to damages because of the fear of developing
mesothelioma. Vietnam and Gulf War veterans could sue for fear of developing
toxic poisoning. The financial impact on the Commonwealth and on Australia
in general would be devastating. Further, the impact on industry and
professional groups could well be devastating.[40]
5.57 The AGS estimated that, if nervous shock claims were upheld in relation
to fear of CJD, the Commonwealth's liability may be in the region of $100
million. Accordingly, the Commonwealth would be likely to appeal any judgement
in favour of a plaintiff to the High Court.[41]
The AGS also emphasised that `in any concept of fairness we have regard
to the taxpayer as well as the plaintiff'.[42]
5.58 The AGS noted a recent decision of the US Supreme Court about a
railway employee, who had been exposed to potentially cancer-causing asbestos
dust in the course of his employment. The worker failed in an action claiming
damages for emotional distress as a result of the fear of cancer because
he had no symptoms of a relevant physical disease.[43]
5.59 On the other hand, APQ's counsel, Mr Jack Rush QC, was of the view
that APQ would succeed on this aspect of her case. He noted that `there
are interesting and novel aspects of law and no lawyer can give a guarantee
in such matters'.[44]
5.60 Mr Rush QC drew some support from the decision of Harper J of the
Supreme Court of Victoria not to strike out APQ's claim. Harper J noted
two cases that supported claims for nervous shock even though there was
no physical injury.[45] In those
cases the relevant psychiatric damage came from the sudden perception
of a shocking event. In one of the cases referred to, the plaintiff had
been a passenger in a train which had rolled backwards at high speed,
putting her in fear of physical injury, although such injury did not ensue.
Harper J questioned whether it was necessary to show that APQ's psychiatric
state related to such an event. He took the view that APQ might still
have a sustainable claim. In any event, APQ might amend her pleadings
to allege `the sudden receipt of distressing information'.[46]
5.61 It should be noted that the decision of Harper J did not uphold
the plaintiff's claim as such. It merely held that it was strong enough
to justify it going to trial. Harper J did not hold that APQ would necessarily
succeed at trial on the facts or on the law.
5.62 The Committee received some evidence suggesting that if a plaintiff
were to succeed in court in a nervous shock claim, they would be precluded
from bringing a claim for actual physical harm should they later contract
CJD. The Committee also heard evidence that damages in nervous shock cases
are often less than generous.
5.63 In this regard, the AGS advised the Committee:
It is ... arguable at law that if the plaintiffs were to succeed
in their claim for nervous shock they would, if they contracted Creuzfeldt-Jakob
Disease in the future, be estopped from claiming damages for the physical
effects of the disease. In other words a lesser sum as compensation
for nervous shock would prevent the plaintiff from recovering a greater
amount of damages for the physical injury.[47]
5.64 A similar view was expressed by Rennick Briggs to their clients.
In response to questions from the Committee, Mr Glen of that firm drew
the Committee's attention to the letter dated 14 June 1997 from Rennick
Briggs to plaintiffs. He told the Committee that that letter stated that
if a client succeeds at trial for psychiatric injury, neither that client
nor that client's family would have any further claim for compensation
in the instance that the client falls ill with CJD thereafter.[48]
5.65 If this is the case, a plaintiff will need to decide which right
is more valuable to them. Where a plaintiff's priority is to ensure that
their medical expenses etc are covered if they contract CJD, and if it
is true that the law requires them to elect, it might be argued that the
Commonwealth's offer is reasonable.
5.66 The level of damages recoverable in actions for psychiatric damage
is also relevant in assessing the Commonwealth's offer of settlement.
5.67 Mr Glen of Rennick Briggs gave evidence to the Committee that juries
were notoriously conservative in assessing damages for nervous shock in
the Supreme Court of Victoria. He stated that `it might be anywhere between
a low of $5,000 and a maximum of $75,000 to $80,000just to give you a
broad spectrum'.[49]
5.68 The CJD Support Group Network submitted that `since psychiatric
injury suits usually have small payouts the few successful litigants who
might go on to develop CJD would be financially disadvantaged'.[50]
5.69 It might be argued that the Commonwealth's offer was fair, even
though it failed to compensate for psychiatric injury, because (on one
view of the law) the prospects of a plaintiff recovering for psychiatric
injury were poor.
5.70 On the other hand, it could be argued that the Commonwealth is morally,
even if not legally, obliged to compensate recipients for psychiatric
damage.
5.71 In its submission, the National Pituitary Hormones Advisory Council
noted with concern the fact that the offer did not include a component
for psychiatric damage, and argued:
In considering the reasonableness of the Commonwealth's offer,
the Council is conscious of the fact that what may be perceived as the
moral responsibility of the Commonwealth to compensate hormone recipients
is a separate question from the Commonwealth's potential legal liability
should any of the existing claims go to trial.[51]
5.72 The Committee heard evidence that many recipients hold extremely
strong feelings about the fact that the offer did not include damages
for psychiatric damage. For example, Mr David Ralston, a growth hormone
recipient, expressed an opinion which was voiced by many other recipients
when he described the offer as `an insult' and `an indication of the failure
of the system to recognise and understand the ongoing traumatic impact
that the CJD episode has had on so many lives'. He noted that `the offer
totally ignores the basis of the litigation'.[52]
5.73 The CJD Support Group Network was particularly concerned that, in
addition to the benefits promised under the Commonwealth's offer, recipients
be given `compensation and some expression of regret on the part of the
government for the distress and anxiety they have suffered and continue
to suffer'.[53]
5.74 The Committee heard graphic evidence from a number of witnesses
on the suffering of recipients. For example, one witness told the Committee
that after learning of the risk of CJD:
I sank into a deep depression, suffering from severe headaches,
sleeplessness, stomach ulcers, despair, et cetera. The though that one
day I might have to tell my daughters that they may be at risk also
breaks my heart. I now have to bear the shame of informing doctors,
dentists and medical personnel that I am at risk of CJD... Unless a
test for this disease is found, my girls and I will never be free from
the fear and worry.[54]
5.75 The Committee has no doubt that numerous pituitary hormone recipients
have suffered emotionally as a result of the position they have been put
in.
5.76 For those recipients, if any, who have not suffered psychiatric
injury and whose major concern is how they will be taken care of if they
develop CJD, the offer may be seen as reasonable. It is difficult for
the Committee to assess how many recipients, if any, fall into this category.
The CJD Support Group Network gave the following evidence:
Very few recipients would claim to be totally unaffected by their
knowledge of their risk of CJD. Clearly the impact on some people's
lives has been huge, where others have put it to the back of their minds
and carried on much as before. Many people would feel uncomfortable
about consulting a psychiatrist and even less comfortable about documenting
their psychiatric health.[55]
5.77 The Committee also heard evidence of a strongly held belief among
pituitary hormone recipients that, irrespective of the settlement offer,
the Commonwealth was already obliged in one way or another to pay compensation
to recipients who actually contracted CJD.
5.78 There was a strong feeling, then, that the Commonwealth was offering
nothing new. The CJD Support Group Network submitted:
The supposed benefit to recipients in the settlement was the
offer of `pain and suffering' compensation and `common law damages'
without the need for legal action, in the event that they contracted
CJD and subsequently died. There has been a well founded assumption
by recipients that common law damages would have been paid in the event
of their death from CJD because the Commonwealth had paid damages to
the four original victims of the AHPHP.[56]
5.79 The Committee notes that, apart from the CJD risk, the offer of
settlement does not take into account other long term side effects allegedly
associated with assisted conception and possible cancer.
5.80 The release in favour of the Commonwealth in the offer of settlement
appears to be very broad and it may extend to physical illnesses other
than CJD. However, the Committee did not receive any detailed evidence
on this point.
5.81 The Committee heard evidence of concerns relating to the deadlines
for acceptance of the Commonwealth's offer of settlement.
5.82 It will be recalled that:
- the offer in APQ's case was made about a week and a half before APQ's
cases was due to begin;
- the AGS's offer to Rennick Briggs' other clients made on 4 April 1997
did not, due to an oversight, impose a deadline, although Rennick Briggs
imposed its own deadline of 24 April;
- on 28 April Rennick Briggs advised clients that it proposed to cease
to act after 14 May if they did not settle;
- on 30 April 1997 the AGS gave clients of Macedones 14 days to accept
the offer, although this was extended to 30 June (and a number of Macedone's
clients may have been aware, at an earlier date, of the Commonwealth's
offer to Rennick Briggs' clients);
- on 21 and 23 May 1997 the AGS wrote to former clients of Rennick Briggs
imposing a deadline of 30 May (it is not clear whether they had been
advised of the offer by Rennick Briggs' letter of 4 April);
- following the Senate's request, the option for hormone recipients
to accept the Commonwealth's current settlement offer has been left
open until they have had the opportunity to consider the Government's
response to this report.
5.83 The CJD Support Group Network gave evidence to the Committee setting
out the sequence of events from the perspective of its members. The Network
emphasised that its members were largely unaware of details of preparations
for APQ's trial and that the settlement of APQ's case came as a shock:
The announcement of APQ's settlement with the Commonwealth and
CSL came as a shock to litigants... The first indication most recipients
had that all was not well was a letter from Rennick Briggs dated 4 March
1997...in which they asked each of the litigants to contribute $750
towards the costs of the actual hearing... This letter was the first
indication that the legal aid applications had been unsuccessful...
The request for money surprised most litigants... Our understanding
is that on 27 March, Easter Thursday, the Commonwealth instructed its
counsel to make a settlement offer to APQ's counsel. The offer seems
to have been made over the Easter break. We understand that APQ was
herself asked to come to Melbourne on 2 April, and only after her arrival
was she made aware of the offer. She accepted the offer on that day.
On 3 April Rennick Briggs informed some of their clients that the settlement
had been reached, and that it was to be extended to everyone involved,
but that the terms of the settlement were not to be disclosed until
4 April. On 4 April some litigants were informed of the terms by phone.
They were universally disgusted and angry. Many other litigants discovered
from the newspapers on 5 April that APQ had settled and on what terms,
and that the offer was open to them... The letter sent on 4 April 1997
by Rennick Briggs...set out the circumstances surrounding the settlement
and gave litigants less than two weeks to decide whether to accept or
reject the offer... The Support Group Committee which had received a
fax copy of the 4 April letter, queried the basis of the deadline and
were informed that it was purely arbitrary. We made Rennick Briggs aware
that in our opinion the time was too short, particularly because it
included school holidays in many states... The next written communication
from Rennick Briggs went out on 28 April. ...These letters informed
litigants that Rennick's intended to cease to act for them after 14
May.[57]
5.84 The Committee notes that these concerns go more to the conduct of
Rennick Briggs than that of the Commonwealth. Rennick Briggs responded
that the information contained in the letter of 4 April could hardly be
considered as bullying or intimidatory tactics, and pointed out that all
their clients had the choice to accept or reject the offer.[58]
Between 4 April and 15 May the firm `received many phone calls from clients
and spent a considerable amount of time explaining to them the ramifications
of the Government's proposed offer of settlement as well as the ramifications
which could flow from their non acceptance of the Government's offer'.[59]
The Committee notes that Rennick Briggs extended its deadline to 14 May
and the Commonwealth has further extended the deadline for settlement.
5.85 Rennick Briggs also referred to the AGS omission in not setting
a deadline. As has been previously noted, AGS did not initially set a
deadline for Rennick Briggs' clients due to an oversight. However, the
AGS gave evidence to the Committee to the effect that imposing a deadline
on an offer to settle litigation is a reasonable and common practice because
the party making an offer will normally want to know whether they will
have to prepare the matter for court.[60]
5.86 The AGS supported its view by reference to the offer of compromise
provisions under the rules of the Victorian Supreme Court. They provide
that a minimum of 14 days must be allowed for the offer to be accepted.
The AGS submitted that in its experience of personal injury litigation
it was extremely rare for an offer of compromise under the Supreme Court
rules to permit more than 14 days to accept the offer. It was also argued
that, presumably where the offer is made outside the rules, there is usually
a 7 to 14 day time limit. 61
5.87 The AGS concluded:
In the AGS's view a period of 812 weeks in which to consider
an offer is a particularly lengthy period given the plaintiffs have
highly experienced legal advisers to advise them of the consequences
of acceptance or rejection.[62]
5.88 The Committee also heard evidence expressing concern at the Commonwealth's
threat to enforce costs against plaintiffs in the event that they should
seek to discontinue without accepting the Commonwealth's offer, or should
proceed with their action and fail. As noted, that threat was contained
in a letter from the AGS to Rennick Briggs dated 18 April 1997 see Appendix
8.
5.89 The CJD Support Group Network gave evidence to the Committee arguing
that the AGS letter, which Rennick Briggs passed on to its clients, was
`obviously not intended for a general audience, and the commentary provided
by Rennicks created great fear among litigants'.[63]
This was linked to a concern that Rennick Briggs, by ceasing to act for
those who did not settle, had `abandoned' their clients.
5.90 Mrs Sue Byrne, the National Coordinator of the CJD Support Group
Network, alleged that many of the approximately 90 people who had accepted
the Commonwealth's offer felt `very strongly that they were intimidated
into doing so and did so very much against their will'.[64]
In particular, she told the Committee:
People were told that the sheriff could enter their homes and
seize their goods if the Commonwealth decided to pursue them for costs.
. . . I might point out that it did not come from the Commonwealth or
the AGS; it came from our solicitors, who abandoned us on the day that
the test case settlement was signed. They decided that they were no
longer going to act for us. They did not want to know about it. We got
virtually no information from them from that date until the time the
Senate inquiry was announced. There was no information forthcoming from
them except that we had no choice but to settlethe only option was to
settle.[65]
5.91 These themes of the intimidating power and authority of the Commonwealth,
the feeling of having no real alternative but to accept the settlement
offer, and that legal avenues to pursue the case had been shut recurred
through a number of submissions.[66]
5.92 The Network's submission criticised Rennick Briggs for not outlining
the processes by which costs could or would be recovered from plaintiffs.
For instance, it may not have been clear to plaintiffs that it was necessary
for the AGS to obtain a court order first, and it was alleged that there
was no attempt to quantify costs. It was suggested that Rennick Briggs
had exaggerated the costs threat to induce clients to settle. Further,
the Network suggested that it was in the financial interests of Rennick
Briggs to induce clients to settle because that would ensure that their
costs were paid.[67]
5.93 Some of these allegations were put to Mr Michael Glen, a partner
with Rennick Briggs. He maintained:
We just did not have the funds to continue. The firm Rennick
Briggs did not have the funds, APQ did not have the funds, we were without
legal aid and the application for trial disbursements to be waived in
some part was refused.[68]
5.94 Mr Glen noted that there was precedent for the Commonwealth pursuing
its legal costs.[69] However,
he denied that his firm would have used alarmist tactics. Of the solicitor
who had carriage of the CJD matters, Mr Glen said:
He would never have used those alarmist type tactics, such as
`The sheriff is going to come in and sell your property.' It may have
been that, in response to statements such as, `I can't afford to pay
for it,' or `Does my house go?', he said, `Probably not, but do you
have any other assets?' [He] would not deliberately and I know him very
well say something that would unnecessarily alarm or place fear in someone
along those lines.[70]
5.95 Mr Glen acknowledged that his firm may have made reference to the
possibility of the Commonwealth causing the sale of a plaintiff's home,
or an attendance by the Sheriff. However, he maintained that this would
probably only have been in response to particular questions raised by
clients either over the phone or when the firm visited Hobart shortly
after APQ's settlement. The clients naturally wanted to know `the end
result' should the Government continue with threats to pursue unsuccessful
or discontinuing litigants for their costs. Mr Glen stated :
We did not consider the Commonwealth's threat to pursue our clients
for costs an idle one, as the AGS indicated in their letter of 18th
April 1997 that not only would they pursue any Plaintiff for their costs
if the Commonwealth is successful in defending their action but
they would also pursue any Plaintiff for costs if any Plaintiff at some
point of time in the future discontinues the action.71
5.96 Mr Glen argued that it would have been `negligent and remiss' of
the firm if it had not advised its clients of the contents of the AGS'
letter of 18 April 1997.[72]
5.97 The Committee questioned the AGS about this matter. The AGS gave
evidence that the letter of 18 April was the sole communication on costs.[73]
The AGS also noted that on the face of it there would be an obligation
on the Commonwealth to pursue costs owing to it. Such an obligation could
be implied from the Audit Act.[74]
It was noted that there are provisions in the Audit Act for the write-off
of debts where it is not economical to recover a debt, including a debt
in the form of legal costs. In cases of hardship the matter would be referred
to the Minister or higher up the line. It was also argued, in effect,
that Rennick Briggs should have been aware of that.[75]
5.98 The Committee did not receive extensive evidence on the financial
position of the plaintiffs and whether it would have been economical for
the AGS to pursue costs against them. The Committee notes the following
excerpt from the letter dated 4 April 1997 from Rennick Briggs to its
clients may be relevant:
We can say that APQ's assets were typical of most people in that
she had a half share in the family home and a car. Such assets were
sufficient for the Registry to deny a waiver of...Court fees.[76]
5.99 The AGS described for the Committee how the process by which the
payment of costs for plaintiffs who settle was undertaken. A claim would
be submitted by the plaintiff's lawyers upon which negotiations would
occur on the costs and disbursements for each of the individual plaintiffs.
The AGS emphasised that each matter which settled must be assessed on
the legal work performed in that matter. This could include issuing the
writ, discovery, interrogatories and directions hearings. The AGS advised
that in round figures, for every case which settled, except for APQ's
case, the plaintiffs lawyers were paid approximately $1600 for costs and
disbursements.[77]
5.100 The Committee notes that it could be argued that Rennick Briggs
would have been remiss not to advise their clients of the Commonwealth's
threat regarding legal costs. The Committee is unable to determine whether,
in individual cases, Rennick Briggs used the threat unduly to influence
clients into settling. Nevertheless, the Committee notes the view expressed
in a number of personal submissions from litigants which indicated that
the question of legal costs was influential in their decision to accept
the settlement offer.
5.101 The legal aid issue is considered in the following chapter. In
brief, concerns were expressed to the effect that the lack of legal aid
in APQ's case was an important factor influencing the settlement of that
case and was certainly the major reason why many others accepted the settlement
offer.
5.102 In its submission, the CJD Support Group Network stated that in
endeavouring to settle CJD matters the Commonwealth had been differentiating
between `on program'- approved and `off program'- unapproved recipients.
In this regard, the Support Group Network stated:
It emerged from the Allars Inquiry that a considerable number
of people received some pituitary hormone treatment outside [the official
program]... However, it seems that the current Departmental policy regarding
off program recipients who are litigating is not to extend the guarantee
of damages to them and not to pay their legal costs... Of those who
are litigating probably only five are off program recipients. Total
numbers of off program recipients are difficult to determine, but they
are probably only about two hundred. Given their small numbers and the
remoteness of risk, the current policy seems unnecessary and mean spirited.[78]
5.103 The Committee was advised that on 11 June 1997 AGS had sought instruction
from the Health Department on whether or not unapproved recipients should
be included in the settlement offer. The Department indicated that it
was considering the matter and that NPHAC had also discussed the matter.
However, the Department considered that, given that litigation in relation
to those who had not accepted the offer was being held in abeyance until
after the Committee reported, it would be appropriate to await the outcome
of this inquiry. In the meantime the Department has sought information
from the CJDSGN `which might explain the position and rationale of recipients
on this matter'. The decision on extending the offer to unapproved recipients
will be taken by the Minister.[79]
5.104 The Committee notes that while there has been about 150 litigants
in the various court actions, the overwhelming majority of recipients
were not involved in litigation for one reason or another. Mr David Ralston,
a member of NPHAC, submitted that:
This in no way means that they did not suffer, and some continue
to suffer, psychiatric injury as a result of being informed of their
possible exposure to CJD. For some non-litigants, I believe that their
suffering may even have exceeded the suffering of some of those who
litigated.[80]
5.105 The Committee understands that for a large number of recipients
the concept of litigation would have been daunting and foreign. In reaching
a decision not to litigate, some recipients apparently considered the
impact of litigating on their employment status and careers, and the impact
that a court case would have on their families. This does not mean that
they may not have suffered significant psychiatric injury. Other recipients
were concerned that they may not be able to prove psychiatric injury because
they had never seen a psychologist or counsellor. David Ralston concluded
that `the same outcome must be available to all recipients regardless
of their current legal circumstances, litigants and non-litigants, those
who have accepted the offer and those who have not'.[81]
5.106 Mr Glen, from Rennicks, summed up the legal perspective when he
wrote that `the the legal process does not determine litigation according
to what is fair and adequate. The law operates within the confines of
legal principles and rules of procedure as applied to the facts of the
particular case.'[82]
5.107 The Commonwealth's offer of settlement was a standard offer. It
was made to plaintiffs who were treated at different times and who may
have had varying degrees of recognisable psychiatric illness.
5.108 Some plaintiffs, especially those treated in the early years of
the program, may not have established a duty of care. Others may have
failed in their nervous shock claims if nervous shock is not compensable
in the relevant circumstances. Alternatively, a plaintiff might have succeeded,
but found that the damages awarded were minimal and the judgement in their
favour prevented them from bringing an action for physical injury if they
subsequently contracted CJD.
5.109 This makes it difficult for the Committee to assess the fairness
of the Commonwealth's offer in a global sense. Viewed against the strict
legal rights of the parties, the offer may be generous in relation to
some plaintiffs and unfair in relation to others.
5.110 The weight to be given to these factors is not a matter which the
Committee can determine in individual cases. These are matters upon which
a recipient would be prudent to obtain legal advice. The Committee notes
that Rennick Briggs advised its clients that Mr Jack Rush, QC, Mr John
Philbrick of Counsel, and Rennick Briggs strongly recommended that its
clients accept the proposal.[83]
5.111 It is difficult for the Committee to assess the Commonwealth's
offer from a legal perspective without making a judgement on the likely
outcome of the nervous shock claims. Ultimately only a court can make
a judgement on such a matter.
5.112 However, there is a broader perspective.
5.113 The Committee notes the argument of the National Pituitary Hormones
Advisory Council that the issue of fairness should be judged in a wider
moral context.
5.114 The Committee considers that any such assessment must take into
account both fairness to the plaintiffs and fairness to the taxpayer.
5.115 The members of the Committee have great sympathy for those plaintiffs
who have suffered psychiatric injury as a result of their possible exposure
to CJD through the hormone program. The anguish of many hormone recipients
and families was brought home vividly by a number of witnesses to the
Committee. Such distress may well have been exacerbated by the feeling
that this kind of injury is seen by the Commonwealth as illegitimate or
exaggerated.
5.116 The Committee notes that some assistance is being provided to recipients
though the Trust Account (see Appendix 4). The Committee acknowledges
that many recipients argued that this is not sufficient and that there
should be a payment of general damages in respect of psychiatric distress
as well as compensation for out of pocket expenses.
5.117 The Committee also notes evidence of the financial cost to a plaintiff,
and possibly the plaintiff's legal and other advisers, in bringing a nervous
shock claim through a court hearing and any appeal. This resulted in some
plaintiffs feeling pressured to accept the offer even though they might
have rejected it if they had the financial resources to litigate. (The
Committee considers this issue further in the next chapter.) No doubt
the costs and pressures of litigation have the potential to add greatly
to the psychiatric stresses on recipients.
5.118 The Committee must also take into account the implications that
a settlement payment for nervous shock would have by way of precedent
for other situations where people may suffer psychologically under the
threat of contracting a disease, whether it be mesothelioma from asbestos
exposure, or toxic poisoning from exposure to chemicals during a war.
5.119 The Committee accepts the evidence of the AGS on this matter that
prospective liability in such matters could be extensive taking into account
the activities of the Commonwealth.[84]
5.120 The policy issues in this area are extremely difficult to weigh.
However, in the circumstances and based upon its knowledge of the law,
the Committee is persuaded that the settlement offer was fair and
adequate. However, the Committee acknowledges the concerns that have been
expressed that the settlement does not go to the original basis of the
litigation - psychiatric injury as a result of participation in the AHPHP.
The Committee believes, that in addition to the settlement now being offered
in relation to possible contraction of CJD in the future, the Government
should recognise that psychiatric injury has occurred in some cases.
5.121 The Committee is aware that many original litigants have not and
will not accept the settlement offer. The Committee understands that at
least one, and possibly more, legal firms will continue with their actions
to court. As the situation currently stands, it is apparent that the Commonwealth
is most likely to be involved in protracted and expensive litigation.
In view of this situation, the Committee notes the comments made by the
current Treasurer in 1993:
In relation to this matter, the Commonwealth can either spend
its money on lawyers or on the victims. It will not necessarily be any
cheaper to spend the money on the lawyers; the Commonwealth will be
paying whichever way it goes. As a matter of justice, it would be far
more just and far more helpful to those who have suffered if the Commonwealth
said that on this occasion its beneficence will be directed towards
the victims, the families that have suffered the death and loss of a
loved one, rather than the legal profession defending the claims.[85]
5.122 The Committee accepts that the imposition of a deadline on acceptance
of the Commonwealth's offer is defensible for the reasons given by the
AGS. Otherwise, the AGS would not know which particular cases it should
be preparing to defend. The Committee also notes that the Commonwealth's
offer remains open, albeit as a result of the establishment of this inquiry.
5.123 The Committee is concerned that, between 4 April 1997 and 24 April,
some of Rennick Briggs' clients may have felt pressured and compelled
to settle by reason of the deadline in Rennick Briggs' letter of 4 April.
However, each individual case would need to be considered on its merits,
which is strictly a judicial function.
5.124 Further, although the Committee was provided with Rennick Briggs'
letter of 4 April, there may have been telephone communications between
Rennick Briggs and clients, which may have clarified the fact that the
deadline was not imposed by the AGS. This appears to have been the case
in at least one instance referred to above.[86]
5.125 The Committee is of the view that Rennick Briggs was probably justified
in bringing the threat concerning costs to the attention of its clients.
However, it is difficult for the Committee to assess whether adequate
information was given by Rennick Briggs to their clients, especially on
the question of whether the Commonwealth would pursue them for costs.
This could vary in individual cases where clients made telephone contact
with Rennick Briggs. The Commonwealth's intentions would probably vary
depending on the financial position of particular plaintiffs and the extent
of costs run up by the Commonwealth in individual cases.
5.126 The Committee also noted the view of many recipients who believed
that access to information including their treatment records, such as
the batch numbers of the hormone they were treated with, was required
before they could make an informed determination on whether to accept
the settlement offer.[87] Given
the difficulties encountered by many in accessing this information as
described in Chapter 3, these recipients believed the time was insufficient
to gain this information and reach an informed decision.
5.127 The Committee finds it difficult to see any sound basis for not
making the offer of settlement to those who can satisfy the AGS, or perhaps
an independent arbitrator, that on the balance of probabilities they were
an unapproved recipient. The Committee considers that unapproved recipients
so proven should be regarded in the same manner and provided the same
offer as approved recipients on the AHPHP. This is particularly so given
the failure in their duty of care to the unapproved recipients by the
Department and HPAC through deficiencies in the Program's formal approval
process and the monitoring of doctors conducting the fertility and growth
treatments. Issues involving unapproved recipients and the deficiencies
in the AHPHP are addressed in greater detail in Chapter 7.
Recommendations
The Committee makes the following recommendations:
Recommendation 5: That the settlement offer should not preclude a
plaintiff making any future claim in relation to:
Recommendation 6: That, without conceding the likelihood or otherwise
of a legal action on psychiatric stress succeeding, in addition to the
current settlement offer, the Commonwealth:
(a) make an additional allocation of funds to the existing Trust
Account and that its purpose be widened. The amount of additional funding
should, as a minimum, be equivalent to the cost of defending potential
litigation;
(b) widen the purpose of the Trust Account to permit one-off payments
to be made to recipients who provide evidence that they have suffered
psychiatric injury as a result of treatment under the AHPHP. This payment
be made on a sliding scale relating to the level of psychiatric injury
suffered by the recipient. This payment would be regarded as a form
of ex gratia payment and would not constitute any precedent for similar
action;
(c) consider extending this offer of payment to include recipients
who have suffered psychological stress or significant life disturbance;
and
(d) appoint an independent governing Board to authorise payments
from the Trust to replace authorisation by the delegate of the Minister.
The Board would be responsible for receiving and assessing applications
for recompense.
Recommendation 7: That recipients who have already accepted the settlement
offer would also be eligible for the additional offer as outlined in Recommendation
6, providing they have evidence of psychiatric injury, psychological stress
or significant life disturbance.
Recommendation 8: That unapproved recipients, who are formally identified
and accepted through the process outlined in Recommendations 2 and 14,
be eligible for the settlement arrangements already offered to recipients
as well as those outlined in recommendations 6 and 15.
Recommendation 9: That the Commonwealth formally acknowledge:
(a) the deficiencies in the operation and oversight of the AHPHP;
(b) the experimental nature of aspects of the treatment under the
Program; and
(c) the anxiety and stress that has been caused to hormone recipients.
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FOOTNOTES
[1] A copy of the Agreement
and Release was provided by AGS, supplementary information, 21.8.97 and
is reproduced as Appendix 6.
[2] Dr Peters, supplementary information,
15.8.97; Submission No.24, Attachment I(a)-Letter from AGS to Mrs Byrne,
5.6.97 (CJDSGN); Transcript of Evidence, 13.8.97, pp. 85-87.
[3] DHFS, information tabled at
hearing 25.8.97.
[4] John Fleming, The Law of
Torts, Fifth Edition, pp.216-223.
[5] Rennick Briggs, supplementary
information, 11.8.97, p.3.
6 Rennick Briggs, supplementary information, 11.8.97, p.3.
[7] Rennick Briggs, supplementary
information, 11.8.97, pp.3, 6.
[8] Submission No.11, p.3 (Rennick
Briggs).
[9] Rennick Briggs, supplementary
information, 11.8.97, p.3.
[10] APQ v. Commonwealth Serum
Laboratories Ltd and Commonwealth of Australia, Supreme Court of Victoria,
Harper J, 2 February 1995 (unreported), pp.1-2. Submission No.1, 1.8.97,
attaches copy of Harper judgement.
[11] Submission No.74, ToR 1(c),
Attachment A-Letter from Rennicks to AGS, 18.3.97, p.1(AGS).
[12] Submission No.74, ToR 1(c),
p.4 (AGS).
[13] The application was made
under R.23.01(1) of the Rules of the Supreme Court of Victoria.
[14] APQ v. Commonwealth Serum
Laboratories Ltd and Commonwealth of Australia, Supreme Court of Victoria,
Harper J, 2 February 1995 (unreported).
[15] Submission No.74, ToR 1(c),
p.4 (AGS).
[16] Submission No.11, p.3 (Rennick
Briggs). Rennicks later indicated that the trial's duration would more
likely be 17 weeks, supplementary information, 11.8.97, p.4.
[17] Submission No.74, ToR 1(c),
pp.3-4 (AGS).
[18] Submission No.74, ToR 1(c),
p.3 (AGS).
[19] Submission No.74, ToR 1(c),
p.3 (AGS).
[20] Submission No.74, ToR 1(c),
pp.5-6 (AGS).
[21] Submission No.74, ToR 1(c),
p.6 (AGS).
[22] Transcript of Evidence,
13.8.97, p.160.
[23] Rennick Briggs, supplementary
information, 13.8.97, Attachment 5-Letter from Rennicks to all clients,
4.4.97, p.2.
[24] Rennick Briggs, supplementary
information, 13.8.97, Attachment 5-Letter from Rennicks to all clients,
4.4.97.
[25] Rennick Briggs, supplementary
information, 13.8.97, Attachment 10-Letter from AGS to Rennicks, 18.4.97.
[26] Rennick Briggs, supplementary
information, 13.8.97, Attachment 12-Letter from Rennicks to all clients,
28.4.97.
[27] Submission No.74, ToR 1(c),
p.6 (AGS).
[28] Transcript of Evidence,
12.8.97, p.4 and 25.8.97, p.199.
[29] Submission No.74, ToR 1(c),
p.6 (AGS).
[30] Submission No.74, ToR 1(c),
pp.6-7 (AGS).
[31] Journals of the Senate,
No.114 - 26 June 1997, p.2237.
[32] Transcript of Evidence,
12.8.97, p.65.
[33] Submission No.85, p.27 (DHFS).
[34] Submission No.74, ToR 1(c),
pp.1-2 (AGS).
[35] Submission No.74, ToR 1(c),
p.1 (AGS).
[36] Submission No.74, ToR 1(c),
pp.1-2 (AGS).
[37] Submission No.74, ToR 1(c),
pp.1-2 and Attachment B-Letter from Macedones (AGS).
[38] Submission No.74, ToR 1(c),
p.2 (AGS).
[39] Submission No.74, ToR 1(c),
p.2 (AGS).
[40] Submission No.74, ToR 1(c),
p.2 (AGS).
[41] Submission No.74, ToR 1(c),
p.3 (AGS).
[42] Transcript of Evidence,
13.8.97, p.161.
[43] Metro-North Commuter
Railroad Company v Buckley 1997 U.S. LEXIS 3867; 65 U.S.L.W. 4586
(decided 23 June 1997). The exposure had created an added risk of death
due to cancer, or other asbestos-related diseases, of between 1% and 3%
or 1% and 5%. The Supreme Court held that Mr Buckley could not recover
emotional distress damages unless, and until, he manifested symptoms of
a disease. It was not enough that Mr Buckley had suffered a form of `physical
impact' in that he had been exposed to asbestos dust.
[44] Rennick Briggs, supplementary
information, 13.8.97, Attachment 29 (advice of Mr Jack Rush QC dated 11
February 1997).
[45] Dulieu v White [1901]
2 K.B. 669; Bell v The Great Northern Railway Company of Ireland(1980)
26 L.R.Ir. 428; APQ v. Commonwealth Serum Laboratories Ltd and Commonwealth
of Australia, Supreme Court of Victoria, Harper J, 2 February 1995
(unreported), p.9.
[46] APQ v. Commonwealth Serum
Laboratories Ltd and Commonwealth of Australia, Supreme Court of Victoria,
Harper J, 2 February 1995 (unreported), p.13.
[47] Submission No.74, ToR 1(c),
p.3 (AGS).
[48] Transcript of Evidence,
12.8.97, p.67.
[49] Transcript of Evidence,
12.8.97, pp.67-68.
[50] Submission No.24, p.12 (CJDSGN).
[51] Submission No.42, ToR 1(c),
p.1 (NPHAC).
[52] Submission No.27, pp.3-4.
Similar comments were also made in, for example, Submission Nos.14, p.2;
16, p.1; 34, p.2; 43, p.2; 59, p.2; 88, p.1.
[53] Submission No.24, p.14 (CJDSGN).
[54] Transcript of Evidence,
12.8.97, p.43.
[55] Submission No.24, p.12 (CJDSGN).
[56] Submission No.24, p.8 (CJDSGN).
[57] Submission No.24, pp.14-15
(CJDSGN).
[58] Rennick Briggs, supplementary
information, 11.8.97, pp.6-7.
[59] Rennick Briggs, supplementary
information, 22.8.97, p.3.
[60] Submission No.74, ToR 1(c),
p.7 (AGS).
61 Submission No.74, ToR 1(c), p.7 (AGS).
[62] Submission No.74, ToR 1(c),
p.8 (AGS).
[63] Submission No.24, p.15 (CJDSGN).
[64] Transcript of Evidence,
12.8.97, p.4.
[65] Transcript of Evidence,
12.8.97, p.5.
[66] For example Submission Nos
43, p.3; 51, p.2; 63, p.3; 65, p.2.
[67] Submission No.24, pp.15-16
(CJDSGN). A number of litigants also asserted that `a deal had been struck'
between the solicitors to maximise reimbursement of legal costs, eg Submission
No.70, p.2
[68] Transcript of Evidence,
12.8.97, p.60.
[69] Transcript of Evidence,
12.8.97, pp.61 and 64. See also Rennick Briggs, supplementary information,
22.8.97, p.7.
[70] Transcript of Evidence,
12.8.97, p.65. See also Rennick Briggs, supplementary information, 13.8.97,
pp.2-3.
71 Rennick Briggs, supplementary information, 22.8.97, pp.1-2.
[72] Rennick Briggs, supplementary
information, 22.8.97, pp.1-2.
[73] Transcript of Evidence,
13.8.97, p.158. This point was confirmed by Mr Glen who indicated that
`there is no evidence that discussions took place between [AGS and Rennicks]
in relation to the [18 April letter] and in particular, in relation to
the last two paragraphs' Rennick Briggs, supplementary information, 22.8.97,
p.7.
[74] Transcript of Evidence,
13.8.97, p.162.
[75] Transcript of Evidence,
13.8.97, p.163.
[76] Rennick Briggs, supplementary
information, 13.8.97, Attachment 5-Letter from Rennicks to all clients,
4.4.97, p. 2.
[77] Transcript of Evidence,
25.8.97, pp.199-201.
[78] Submission No.24, pp.8-9
(CJDSGN).
[79] Transcript of Evidence,
25.8.97, p.225 and DHFS, supplementary information, 29.8.97, p.4.
[80] Submission No.27, p.4.
[81] Submission No.27, p.4. See
also Submission No.52, p.2.
[82] Rennick Briggs, supplementary
information, 11.8.97, p.3.
[83] Rennick Briggs, supplementary
information, 13.8.97, Attachment 5-Letter from Rennicks to all clients,
4.4.97, p. 4.
[84] Submission No.74, ToR 1(c),
p.2 (AGS).
[85] House of Representatives
Hansard, 27.10.93, p.2666, Mr Peter Costello.
[86] Submission No.24, pp.14-15
(CJDSGN).
[87] See for example Submission
Nos.2, 21.7.97, p.2; and 18, p.3.