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APPENDIX 7 - SETTLEMENT OFFER: RENNICK BRIGGS ADVICE
TO CLIENTS
LETTER FROM RENNICK BRIGGS TO CLIENTS, DATED 4 APRIL 1997
4th April 1997
C.J.D.
We advise that the Defendants have made an offer to settle
APQ's action which she has accepted. Consequently her trial will not proceed
on 7th April 1997.
The same terms of settlement which APQ has accepted are now
extended to you which are as follows:
1. The Commonwealth undertakes in the event of you contracting
CJD as a result of hormone treatment provided under the Human Pituitary
Hormone Programme to pay an amount of compensation to you or your legal
representative.
[2] The amount of that compensation will be assessed in accordance
with the principles of common law assessment of damages as at the date
that you or your legal representative gives notice to the Commonwealth
that you have been diagnosed with CJD. This assessment of damages will
not include any allowance by way of compensation for any damages, costs
or expenses paid to or on behalf of you or your family pursuant to the
Human Pituitary Hormones Trust Account Trust Fund which was announced
by the former Minister for Human Services & Health in November 1994.
In other words, this means you have a right to receive compensation
for pain and suffering, loss of income, loss of support you would otherwise
have provided your family but for the onset of CJD. In addition, medical
and other care costs can be recoverable by you or your family from the
Human Pituitary Hormones Trust Account Trust Fund.
3. Your legal costs will be paid by the Defendants.
If you wish to accept the offer, you will be required to discontinue
your action against both Defendants and execute a Release of both Defendants.
You will also be required to keep confidential the terms of the Agreement.
We enclose herewith stamped, self-addressed envelope and Memorandum
for you to provide your instructions on whether you wish to accept or
reject your offer. We must have your instructions no later than 24th April,
1997.
Consequently, the offer includes no compensation for psychiatric
injury.
However, it does provide you with the right to compensation
in the instance that you contract CJD. That compensation will be calculated
without reference to such liability issues as to the date when you were
treated or with which hormone you were treated.
You will recall our advice about the decision made in the
U.K. HGH proceedings last year where the High Court decided that
people treated for the first time after 1st July 1977 and who contracted
CJD were entitled to compensation. However, those treated prior to
or both before and after 1st July 1977 were not entitled to compensation
if they contracted CJD. The date of treatment is no longer a relevant
issue in determining the amount of compensation you are entitled to in
the instance that you do contract CJD. We have recently learnt that the
UK defendants are appealing the entire Judgement of the High Court.
After the Commonwealth Attorney General's final refusal to
provide legal aid in late December 1996, we endeavoured to raise funding
from various other sources for APQ's trial. We approached other prominent
personal injury law firms in Victoria with a proposal that they assist
us with such funding and in return we would share legal costs recovered
in the event that APQ was ultimately successful. These firms shared our
view that APQ had good prospects of success at trial, however they
could not assist for various reasons including their own plans for the
forthcoming year.
Our request for clients to contribute $750.00 to the costs
of APQ's trial disbursements met with a substantial response in raising
$46,000.00. However, such funds were still insufficient to meet anticipated
trial disbursements.
We made an application to the Registry of the Supreme Court
requesting that it waive the daily trial fees of $273.00 per day. This
required APQ to submit a Statement of Financial Circumstances. This application
was refused by the Registry on the basis that APQ had assets in excess
of the liabilities. 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 those Court
fees.
We made a further application to the Trial Judge seeking an
order that the Defendants pay for transcript costs of the trial for APQ.
The Trial Judge had not made a final decision on that application before
APQ's action settled. As there appears to be no precedent for such an
application, we were not confident that His Honour would exercise his
discretion in favour of APQ.
On the 26th March 1997, the Law Institute of Victoria announced
'Law Aid' which is a new scheme which will provide some funding for trial
disbursements for all Victorian civil litigants. We applied for funding
under that scheme hours after its launch was announced. However that application
was also refused on 1st April 1997.
Both ourselves and others have lobbied Members of Parliament
in relation to various issues relating to CJD. We made every effort in
relation to legal aid, however without success.
APQ's decision to be "the test case" was indeed
a brave and selfless decision, one taken for the benefit of all recipients.
APQ had been advised that there was a risk that if she was unsuccessful
in her proceeding, then the Defendants might seek to recover their costs
from her personally. While we considered this a remote risk, it
needed to be kept in mind in light of the current Government's implementation
of harsh economic rationalist policies in the running of government generally.
APQ, as the "test case", has won the right for all
out litigants to full Common Law damages in the event that they contract
CJD, irrespective of when they were treated and with what substance (HPG
or HGH).
Despite the limited resources available to us and APQ, we
were ready to commence APQ's trial. We maintained that position of preparedness
to go to trial on APQ at all times. We believe that state of preparedness
caused the Defendants sufficient concern that APQ might succeed at trial.
However, it was equally evident that the Defendants were committed to
defending APQ's matter all the way to the High Court. This would involve
a delay of at least a couple of years before a final decision was reached
in APQ. In the end, the lack of legal aid and such further delay made
the situation nearly intolerable for both APQ, ourselves and probably
for many of our clients.
You are free to accept or reject the offer. All those that
accept the offer will recover issuing fees on their Writs previously paid
by them. If you obtained a medical report at our request, we should be
able to recover most of that cost for you.
We return herewith your contribution of $750.00. Thank you
for being prepared to make such a contribution to support APQ.
In light of the lack of legal aid, we are not in a position
to conduct any further cases to trial.
We enclose herewith a Memorandum of Authority requiring you
to complete either Option 1 or 2 and ask that you return it to us no later
than 24th April 1997. If you decide to accept the offer, please complete
the enclosed Agreement and Release and return it with the Memorandum in
the stamped self addressed envelope.
In light of the aforementioned circumstances, Mr Jack Rush,
Q.C. Mr. John Philbrick of Counsel, and ourselves strongly recommend that
you accept the proposal.
As always, please ring us on any matter you may wish to discuss.
Encs.
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