Achron Pty Ltd v Serco Water (WA) Pty Ltd
[2001] WASCA 141
•4 MAY 2001
ACHRON PTY LTD -v- SERCO WATER (WA) PTY LTD [2001] WASCA 141
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 141 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:142/1999 | 18 OCTOBER 2000 | |
| Coram: | KENNEDY J IPP J MURRAY J | 4/05/01 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Cross-appeal dismissed | ||
| PDF Version |
| Parties: | ACHRON PTY LTD SERCO WATER (WA) PTY LTD |
Catchwords: | Negligence Industrial accident Contribution proceedings between defendants in respect of damage suffered by the plaintiff Trial Judge apportioning liability equally Apportionment upheld Appeal turns on own facts |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 7(1)(c), s 7(2) |
Case References: | Bakker v Joppich (1980) 25 SASR 468 Bitumen & Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 Hart v Hall & Pickles Ltd [1969] 1 QB 405 James Hardie & Co v Seltsam Pty Ltd (1998) 196 CLR 53 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272 Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 980658; 12 November 1998 Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518 Jones v Dunkel (1959) 101 CLR 298 Keating v Rechichi [1999] WASCA 97 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mounsey v Orange Grove Bricks Pty Ltd (1996) Aust Torts Rep 81-392 RPS v The Queen (2000) 199 CLR 620 Savory v Holland Hannen and Cubitts (Southern) Ltd [1964] 1 WLR 1158 Sharpe v ET Sweeting & Son Ltd [1963] 1 WLR 665 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 Taylor Woodrow Homes Builders Pty Ltd v Chitarra, unreported; FCt SCt of WA; Library No 940374; 20 July 1994 Unsworth v Commissioner for Railways (1958) 101 CLR 73 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ACHRON PTY LTD -v- SERCO WATER (WA) PTY LTD [2001] WASCA 141 CORAM : KENNEDY J
- IPP J
MURRAY J
- Appellant (Third Defendant)
AND
SERCO WATER (WA) PTY LTD
Respondent (Second Defendant)
Catchwords:
Negligence - Industrial accident - Contribution proceedings between defendants in respect of damage suffered by the plaintiff - Trial Judge apportioning liability equally - Apportionment upheld - Appeal turns on own facts
Legislation:
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(1)(c), s 7(2)
(Page 2)
Result:
Appeal allowed in part
Cross-appeal dismissed
Representation:
Counsel:
Appellant (Third Defendant) : Mr P K Walton
Respondent (Second Defendant) : Mr T Lampropoulos
Solicitors:
Appellant (Third Defendant) : Jackson McDonald
Respondent (Second Defendant) : Minter Ellison
Case(s) referred to in judgment(s):
Bakker v Joppich (1980) 25 SASR 468
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200
George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169
Hart v Hall & Pickles Ltd [1969] 1 QB 405
James Hardie & Co v Seltsam Pty Ltd (1998) 196 CLR 53
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272
Case(s) also cited:
Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 980658; 12 November 1998
Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518
Jones v Dunkel (1959) 101 CLR 298
Keating v Rechichi [1999] WASCA 97
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
(Page 3)
Mounsey v Orange Grove Bricks Pty Ltd (1996) Aust Torts Rep 81-392
RPS v The Queen (2000) 199 CLR 620
Savory v Holland Hannen and Cubitts (Southern) Ltd [1964] 1 WLR 1158
Sharpe v ET Sweeting & Son Ltd [1963] 1 WLR 665
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Taylor Woodrow Homes Builders Pty Ltd v Chitarra, unreported; FCt SCt of WA; Library No 940374; 20 July 1994
Unsworth v Commissioner for Railways (1958) 101 CLR 73
(Page 4)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J, with which I am generally in agreement. I desire only to make some additional observations of my own.
2 The respondent had a contract for laying the pipes for a water main in an industrial development being undertaken by the Shire of Swan at Malaga. The trench in which the pipes were being placed was excavated by the appellant, which was the main contractor for the development. A gas main was being laid by another contractor in the same trench, alongside the water main. Two employees of the respondent, Mr M J Palmer and Mr D G McShane were engaged in laying the water pipe. Mr Frank Rice, the plaintiff, who had the contract for laying the gas pipes, was injured when he was struck by water pipes which had rolled down a mound after breaking free from a pack of pipes which the appellant had placed on top of the mound.
3 The learned trial Judge made findings of fact as follows:
"It is quite clear from the evidence that the placing of the pack of pipes on top of the soil mound was in a position where it would have been obvious that there was some danger involved. The sand was fine and unstable and the mound was high. The pipes were placed in a position where they were not securely in contact with the top of the mound but on some occasions there was a gap between the bottom of the pipes and the mound itself. It could be said that the pipes were 'perched' on the top of an unstable mound of sand. The matter was exacerbated by the weight of the pipes and the size of the pack involved. There were a number of potential dangers in my view involved in this operation by the [appellant]. There was the potential possibility of the pipes, when the pack was opened, for the pipes to spill, not only onto the road but also into the trench itself. There was need, in my view, for some protective barrier to be erected, even by means of the placing of pipes to prevent the pipes from running down the hill. People in the area should have been warned, in my view, of the possibility of the pipes rolling down the hill after the pack was opened. Overall, it is clear in my view, that placing the pipes in the position they were, involved a serious risk of injury to people in the area.
On the other hand, upon the arrival of the employees of the [respondent], it should have been obvious in my view, that the pipes were in a dangerous position and that to open the pack in
(Page 5)
- the position where it was was likely to cause injury to some person in the area. I am satisfied that difficulties with the opening of pipes had been experienced by both Messrs Palmer and McShane in the past and it is clear that there was a likelihood of the fact of pipes bursting open. Even on flat ground this apparently represented some danger to the people in the immediate vicinity of the pipes, and in my view, it must have been obvious to employees of the [respondent] that for the opening operation to take place on the top of the mound created an even greater danger. They failed to express any concern as to the location of the pack of pipes and in my view should have requested that the pipes be removed and placed in a safer position before they attempted to open the pack. Having commenced the operation of opening the pack they should have ensured that there were no people in the vicinity who would have been injured had the pipes burst open and the pipes either rolled into the trench or onto the road.
Of particular importance is the fact that the mounds of excavated sand came to the edge of Victoria Road. That road was being used by vehicles and workers. The possibility, indeed, probability, of a loose object rolling down the slope and onto the road should have been obvious to employees of both the [respondent] and the [appellant].
I have considered the pleadings in this particular matter and the various allegations made by the [respondent] against the [appellant], and vice versa. In my view it is clear that the [appellant] was in control of the site and responsible for general safety on it. On the other hand, the employees of the [respondent] were involved in an operation that in itself had the potential for causing injury to other people on site."
4 His Honour went on to hold that the respondent and the appellant had each caused, or contributed to, the plaintiff's injuries, loss and damage and he concluded that each of them was equally responsible for the accident and the injuries, loss and damage caused to the plaintiff.
5 As Murray J has pointed out, these proceedings have followed an unusual course. Mr Frank Rice, the plaintiff, instituted proceedings against the Water Corporation, the respondent and the appellant, seeking damages for personal injury caused by the negligence of each of them. The plaintiff did not, however, pursue his action against the Water
(Page 6)
- Corporation and he subsequently discontinued that action. The plaintiff reached a settlement with the respondent, which consented to a judgment in favour of the plaintiff in the sum of $325,000, exclusive of workers' compensation entitlements, in full and final settlement of the plaintiff's claim for damages. The plaintiff then formally discontinued his action against the appellant.
6 A discontinuance, without more, is not a defence to a subsequent action - see O 23 r 2(2) of the Rules of the Supreme Court. In these circumstances, therefore, the appellant was not able to avoid the provisions of s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) - see George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 at 177 - 178, 185 - 186, 189 - 191 and Hart v Hall & Pickles Ltd [1969] 1 QB 405 at 410 - 411. The appellant, however, is not bound by the amount for which the respondent settled the claim brought against it by the plaintiff - see Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212 - 213 and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 617. Pursuant to the judgment below, it is liable for one half of what would have been an appropriate award in favour of the plaintiff.
7 A request had been made by Mr Palmer to the appellant's foreman to bring the water pipes from where they had been left on the site to a place closer to where the respondent's workmen were then operating. The pipes were six metres in length and had a diameter of 150 millimetres. Each of them weighed approximately 40 kilograms and two men were needed to lift each pipe. Eighteen pipes were held together in a pack, formed by four wooden frames which were held in place by a metal band. The bands were described as being "very highly tensioned" and were designed to hold the pack tightly together. There was evidence, however, that some of the bands were looser than others.
8 The working space available in the vicinity where the accident occurred was constricted. At one time, the option of temporarily closing off the road near which the trench had been excavated was contemplated; but it was not pursued. If packs of pipes had been deposited at the side of the road, it would have been necessary for the respondent's workmen to carry them, one by one, over the mound, which rose to a height of some 2-1/2 metres above the normal ground level. The mound, which ran parallel with, and close to, the trench was made up of yellow sand excavated in the course of digging the trench. This sand was described as being very dry, "like powder, like salt." It was said to give way under foot
(Page 7)
- and was accordingly troublesome to walk on. The mound was also said to be unstable. It was not level. The pipes could not be placed on the opposite side of the trench because there were said to be "lots of cars" and cables in that area.
9 A pack containing 18 pipes had been placed by an employee of the appellant on top of the mound at a time when the respondent's workmen were not present. When they returned to the site to continue their task of laying the pipes, no request was made by them to the appellant to move the pack elsewhere.
10 As set out in the findings of the learned trial Judge quoted above, there was the "potential possibility" for the pipes, when a pack was opened, to spill not only onto the road, but also into the trench. His Honour further found that difficulties with the opening of pipes had been experienced in the past by both Mr Palmer and Mr McShane and that it was clear that there was a likelihood of "pipes bursting open". I am unable clearly to identify the evidence which would sustain the last of these findings. However, on the facts, it was foreseeable that pipes, on their being removed from the pack might, in a variety of circumstances, roll off the top of the mound either onto the road, or into the trench alongside the mound, with the risk of injury to any person in their way. A risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough that the risk is not far-fetched or fanciful - see Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431.
11 The evidence of Mr Palmer was that they would not cut away all of the metal bands around the pipes, because the pipes then "would all just fall apart". The practice was to cut two or three of the bands with a hacksaw, and then to pull the pipes out of the pack individually. The bands were under tension, and he said they would always leave at least one band around the pipes.
12 In the present case, Mr Palmer's evidence was that the band being cut "just went quickly", and that, when it snapped, two or three of the pipes rolled down the mound into the trench, while three or four pipes rolled down towards the road, where the plaintiff was standing. Mr Palmer was not asked either in examination-in-chief or cross-examination concerning any knowledge he might have had in relation to the risk of the bands and the wooden frames coming apart and releasing the pipes. He said he did not think a band had ever broken spontaneously, explaining that this was why it had been such a shock when the accident happened.
(Page 8)
13 The evidence of Mr McShane was not entirely consistent, although, in the end, this was not really of great significance. He commenced by saying that he had been the person using the hacksaw, that he had cut two of the bands, and that he was about to cut the third band when the bundle of pipes burst open. He said he had intended to cut only three bands, because they had found previously that they were then able to pull individual pipes out through the pack by, as he described it, wriggling them out. He later said in his evidence, "When cutting the third band, the whole bundle just burst open." The third version was that, when he had cut the third band, the bundle collapsed.
14 Mr McShane said that he stood to one side of the band and not directly in front of it when cutting the band, because when it snapped it could otherwise have hit him in the face. At the time of cutting the bands in this instance he had been standing on the trench side of the pack. He agreed that the bundle could only have collapsed as a result of the fourth band having loosened, with the clip holding it having been released before he had arrived at the scene. On the evidence, it was open to the Judge to find that difficulties with the opening of packs of pipes had been previously experienced.
15 Mr Rice claimed that all of the pipes in the pack had rolled down on his side of the mound of sand. Mr Palmer had spoken of only three or four having rolled down towards the road; but nothing presently turns on this discrepancy. Mr Rice also spoke of two pipes rolling down with "a piece of timber with a couple of nails coming out of it", which was obviously a reference to a broken wooden frame from the pack.
16 The appellant contended that the learned trial Judge had erred in finding that it was in control of the site and/or responsible for general safety on the site. The evidence of Mr R W Affleck, the consulting engineer who was involved in the project, however, when asked whose responsibility it was to deal with a safety issue arising on the site concerning whether the activities of one contractor presented a danger to employees of another contractor, said:
"Well, I don't see that the issue of whether its safety or the level of the works or the rate of the works or the timing of the works, I don't see them as any different. We expected [the appellant] to make sure that the work was done as it was intended to be done. It was their job to organise the job."
(Page 9)
- It was then put to him, "So in answer to my specific question, if the activities of one contractor presented a potential danger to employees of another contractor, whose responsibility was it to deal with that?" His response was that it was the appellant's responsibility. A letter from the appellant to the engineers was also admitted into evidence. It contained the following paragraph:
"We confirm that we have established and will continue, our liaison with these authorities [Telstra, Western Power, Alinta Gas and WAWA] in accordance with our contract, to achieve a smoothly managed and safe operation, in an effort to minimise the disruption to adjacent businesses."
"Liaison with all the Public Utility Authorities will be a requirement of this contract and the contractor shall allow a sum in the schedule for this task. Co-ordination of the works will be the responsibility of the contractor and he shall be responsible for managing the authorities such that a continual, orderly operation takes place without delay."
18 Under cl 28.1 of the general conditions, which were incorporated in the contract, the Shire was required to give to the appellant "possession" of the site, but limited to the extent that it conferred a right only to such use and control as should be necessary to enable it to execute the work under the contract in accordance with the provisions of the contract. Clause 15 of the general conditions dealt with the requirement for the contractor (the appellant) to provide barricades, guards and fencing for the safety of persons and of property. By an amendment to the general conditions, the Shire was given the right to permit access to the site by other contractors and other persons. The appellant had been given possession of the site some four months prior to the accident.
19 In his examination-in-chief, Mr Affleck had been asked who was responsible for on-site safety and the co-ordination of contractors. His reply was that they were not the responsibilities of the consulting engineers and that it was the contractor's job (that is to say, the appellant's job) to manage the works. There was no cross-examination of Mr Affleck on behalf of the appellant as to any safety requirements and the appellant itself called no evidence at all at the trial. In my opinion, it was open to the learned trial Judge to find that the appellant did have a responsibility
(Page 10)
- for general safety on the site and in particular for co-ordinating work on the site.
20 In my view, the evidence before his Honour was sufficient to justify his conclusion that the respondent was entitled to recover a contribution from the appellant in respect of the damage suffered by Mr Rice. Opinions might well differ as to the extent of the contribution to be ordered in this case. On the facts outlined, I am not, however, persuaded that the learned trial Judge fell into error in reaching the conclusion which he did.
21 I agree with the orders proposed by Murray J.
22 IPP J: I have had the benefit of reading the reasons of both their Honours Justice Kennedy and Justice Murray. I am in agreement with their reasons and have nothing further to add.
23 MURRAY J: A Mr Rice was employed as a gas service layer by a company who had a contract to lay gas pipes on a piece of land where a number of contractors were at work preparing the site for a subdivision. As I understand it, the land was owned by the Shire of Swan. It was to be an industrial subdivision. The appellant was the principal contractor in one sense, although it did not subcontract the work of other contractors on the site. The trial Judge found that the appellant was responsible for a considerable amount of the work on site and maintained some heavy machinery there. Its foreman exercised control of the site, at least in a defacto sense, although a company of consulting engineers had been appointed to superintend the implementation of the work required to be performed on the site overall. The trial Judge accepted evidence that it was upon the appellant that overall responsibility for the work rested. It was to coordinate the work of other contractors. It generally controlled the site and if the activities of a contractor presented a potential danger to workers and others on the site, it was found to be the appellant's responsibility to take whatever remedial action was reasonably practicable.
24 During the course of his work on the site on 23 May 1996 Mr Rice was laying gas pipes in a trench which had been dug by workers employed by the appellant. It was a common trench which was to take a variety of services. The respondent had a contract to lay water pipes in the trench. There was an accident in which Mr Rice received serious personal injuries. I shall return later to the findings made by the trial Judge as to how that came about.
(Page 11)
25 Mr Rice sued three defendants, the Water Corporation, which had made the contract with the respondent under which its employees were working on the site, the respondent itself and the appellant. The defendants all denied liability for negligence and the respondent initiated contribution proceedings against the appellant, relying, of course, upon the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(1)(c) which, so far as material, provides that:
"Where damage is suffered by any person as the result of a tort…any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is … liable in respect of the same damage… ."
- Mr Rice discontinued his actions against the Water Corporation and the appellant, which therefore remained a party to the proceedings only by virtue of the contribution notice and the claim against it by the respondent.
26 Some time later, on 18 March 1999, the respondent consented to the entry of judgment in favour of Mr Rice for the sum of $325,000 exclusive of workers' compensation entitlements in full and final settlement of the plaintiff's claim for damages. The appellant was not a signatory of the memorandum of consent filed pursuant to the Rules of the Supreme Court (WA), O 43 r 16. Its solicitors took the view that the sum agreed by the respondent to be paid to the plaintiff was too large. However, that judgment having been entered, the appellant did subsequently seek leave to appeal against it on the ground that it might be bound. That appeal has not been proceeded with, the motion for leave being adjourned sine die upon its return before the Full Court on 20 May 1999.
27 At about the same time as these events were occurring the respondent obtained a listing of the contribution proceedings before the District Court for trial "on the issue of liability only." The matter came on for trial in July 1999 and on 27 August 1999 the trial Judge delivered his reasons and ordered that the appellant make a contribution to the respondent "to the extent of 50 per cent of the [respondent's] liability in damages to the plaintiff".
28 Costs were reserved, presumably upon the basis that an order for the payment of party and party costs could not be made until there was a subsequent assessment of the amount of damages to which the order for the apportionment of liability as between the appellant and the respondent would apply. If that was the reasoning, it would be difficult to understand at the time when the orders were made, as the appellant's liability to make a contribution had been found against it, contrary to its assertion by way
(Page 12)
- of defence that it was not guilty of negligence contributing to the plaintiff's injuries and so, not being liable to pay damages to the plaintiff, it was not liable to make a contribution in respect of the liability of the respondent.
29 Further, the order made by the Court was not merely that the appellant contribute as to 50 per cent towards the discharge of the respondent's liability in respect of the "damage" suffered by Mr Rice (ie, his personal injuries productive of loss to him), but that the appellant contribute to the respondent 50 per cent of the respondent's liability in "damages" to Mr Rice (ie, the sum of money awarded to or recoverable by Mr Rice to compensate him for the injury and loss suffered). The distinction is a clear one and is made in s 7 of the Act itself; eg, s 7(1)(b) deals with the situation where there are successive actions and contrasts the fact that those actions are brought in respect of the damage suffered by a person as the result of a tort with "the sums recoverable under the judgments given in those actions by way of damages". Similarly, the proviso to s 7(1)(c) is that no claim for contribution can be made by "a person who is responsible for damages in tort" if he or she is, or might be, found guilty of an indictable offence.
30 In any event there is both an appeal (by leave) and a cross-appeal against those orders. The appellant seeks to have the contribution proceedings against it dismissed. There are nine grounds of appeal. The first eight need not be set out here. They address various aspects of the fact-finding process and challenge the apportionment of liability by the trial Judge by reason of alleged errors of fact. It is convenient to deal with these grounds before addressing the ninth ground of appeal, added by leave at the hearing, and the related grounds of the cross-appeal.
31 The findings of fact by the trial Judge were as follows. It will be recalled that while Mr Rice was working for the contractor laying gas pipes in the trench, employees of the respondent were working in the vicinity laying water pipes in the same trench, the excavation of which had produced along its length a mound of loose and unstable sand of variable dimensions.
32 The pipes being laid by the respondent were about 6 metres long and there was a supply of them on site in bundles, three pipes deep and six pipes wide. They rested laterally on lengths of timber at the extremities of which, and therefore running vertically up the three pipes stacked one on top of each other, were other pieces of timber of an appropriate length. On top of them, and therefore resting on top of the pipes, was another
(Page 13)
- lateral piece of timber. All the pieces of timber were tied together by steel straps. There appear to have been generally four frames to each bundle of 18 pipes, which were therefore secured by the timber frames and the straps in rectangular packs.
33 To get at the pipes individually the respondent's workers would cut the steel straps. Unsurprisingly, when that was done, because of the tension on the steel straps, the weight of the pipes and the otherwise inherent instability of the pack, once some or all of the straps were cut the pipes would very often roll out of the pack. The respondent's workers were well aware of the danger and would position themselves so that pipes would not roll on to them.
34 The location where the accident occurred was some distance from the place where the packs of pipes were stored. The respondent's workers had been opening the packs and bringing the pipes individually to the place in the trench where they were to be laid, but because of the increasing distance from the place of storage they secured the cooperation of the appellant, through its foreman, to use its machinery to transport at least one pack of pipes to a place adjacent to where they were working.
35 It is not entirely clear why it was necessary to do so, but the appellant's employees positioned the pack on top of the mound of sand. Not only was the mound itself unstable, but there was the obvious danger that if a pack was opened and pipes rolled off the bundle, they might roll down the sides of the mound and thus present a danger to a person in the area below the mound, whether in the trench or on the opposite of the mound from the trench by a road, where Mr Rice was positioned. Workers employed by the respondent opened the pack by cutting the straps. The pack burst open and a number of pipes rolled down the sides of the mound. The only warning Mr Rice received was a shout which caused him to look at the mound to see pipes rolling towards him at some speed. He managed to avoid one, but was struck by others and injured.
36 Of course the respondent had already consented to judgment for the plaintiff being entered against it, but the trial Judge found that it was negligent because its workers arranged for and permitted the pack of pipes to be placed in an unsafe location and then commenced to open it, aware of the danger that it might burst and that the pipes might roll. They commenced to open it, taking care only for their own safety and failing to ensure that others in the area were not in positions of danger.
(Page 14)
37 So far as the appellant was concerned, it was found to be negligent in that, by its servants, it placed the pipes in the position of danger, knowing that the pack was to be opened. The appellant ought reasonably to have foreseen that in that event, individual pipes might roll down the side of the mound, creating a danger to persons in their way. If it was to be the case that the pipes were placed in the position of obvious danger in which they were on top of the mound, his Honour thought the appellant ought reasonably to have constructed some form of barricade around the area where the pipes were placed or, if, as the appellant contended, that was impracticable having regard to the looseness and instability of the mound of sand, the appellant, his Honour thought, should have ensured that persons who might be in danger when the pack was opened were warned of the risk. His Honour thought the appellant and respondent were equally liable in negligence to the plaintiff.
38 The appellant does not suggest that the trial Judge erred in his approach to the comparative evaluation of the negligent contribution that each of the parties made to the injuries received and the harm suffered by Mr Rice. The judgment to be made by the Court is that derived from the application of the Act, s 7(2) which, so far as material, provides that:
"In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable; …."
39 In Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272; 6 December 1999, Pidgeon J, with whom Malcolm CJ and Murray J agreed, held that in view of the way s 7(2) is worded and the similarity of the wording to the provisions of s 4(1) of the Act, which is concerned with the assessment of contributory negligence, the approach to the task of assessment was the same. His Honour therefore relied on the decision of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494 in holding that the task was one of evaluating the respective contributions made by each negligent party to the harm suffered. At par [36] Pidgeon J went on to refer to the earlier High Court decision of Pennington v Norris (1956) 96 CLR 10 at 15 - 16 as authority for the proposition that the Act "intended to give a very wide discretion to the Judge or jury entrusted with the original task of making the apportionment." It would be expected, his Honour held, "that much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable and [the] cases will be rare in which the apportionment made can be successfully challenged."
(Page 15)
40 In my opinion this is not one of those rare cases.
41 The appellant argues that under the contract between it and the Shire of Swan, it could only exercise control over the activities of other contractors to the extent necessary for the execution of the work and the coordination of their activities. It asserts that there was no express authority to exercise a general control over the site. That is so, but in my opinion it is not to the point. The appellant's breach of duty arose out of its activity in bringing the pack of pipes to the position where it was placed and in placing the pack where it did, knowing that it was to be opened so that individual pipes might be laid in the trench. There was an obvious danger that when that was done, individual pipes would be dislodged from the pack, being unrestrained by the binding, and would roll down the side of the mound. There was clear evidence to support the finding of foreseeability in respect of the risk involved.
42 This was a clear case, in my view, in accordance with the conclusion of the trial Judge, that the negligence of both appellant and respondent contributed to the harm suffered by the plaintiff. If the pack of pipes could not be removed to a safer position, the suggestion of a barricade around the pipes arose for consideration. If that was not reasonably practicable, the solution was readily available. Because it ought reasonably to have foreseen the risk of harm, the appellant was obliged, as was the respondent, to ensure by warning those involved that no person was in a position of danger when the pack was opened. That was not solely the responsibility of the respondent through its employees. They were not the only people who had the practical capacity to implement the obvious solution. I would not uphold these grounds of appeal and it follows that in my opinion, the apportionment of liability to which the trial Judge arrived in the contribution proceedings should be upheld.
43 Ground 9 of the appeal is a complaint about the form of his Honour's judgment. The contention is that the trial Judge erred in ordering the appellant to contribute as to 50 per cent towards the respondent's "liability in damages to the Plaintiff". The ground puts it that the trial Judge:
"…was only required to determine the extent to which the respective acts and omissions of the parties contributed to the happening of the accident, as distinct from the sum upon which such assessment should operate, which sum was to be separately determined upon the trial of the issue of quantum."
(Page 16)
44 On the other hand, by its cross-appeal, the respondent contends that the trial Judge erred in not entering judgment in the sum of $228,220.59. That amount is calculated upon the basis that the respondent's liability to the plaintiff had been established to be the sum of $325,000 by the consent judgment entered as between the plaintiff and the respondent. The respondent had paid that sum together with interest at the post-judgment rate. Fifty per cent of the amount of that judgment and interest, which judgment it is contended was binding upon the appellant, is the sum of $228,220.59.
45 Further, the respondent contends that because it was successful in the contribution proceedings and because it recovered more than its offer of contribution dated 28 May 1999 made pursuant to the Rules of the Supreme Court, O 24A, the trial Judge should not have ordered the costs reserved, but should have made an order that the appellant pay the respondent's costs of the contribution proceedings in any event.
46 Although the form in which the trial Judge ordered the appellant to make its contribution to the respondent suggests that the sum upon which the assessment was to operate was the amount of the judgment to which the respondent had consented in favour of the plaintiff, that was clearly not his Honour's intention. He made a consequential order that the contribution proceedings be listed for trial "in relation to the matter of quantum" as between these two parties.
47 What his Honour should have done depends upon the question whether the appellant is right in his view about the proper outcome of the proceedings which, as has been seen, were only listed to try the question of the appellant's liability to make a contribution to the respondent, or whether in the alternative, there could, in effect, be no assessment of that quantum because the appellant was bound by the judgment entered as between the plaintiff and the respondent, albeit without the consent or approval and indeed over the active opposition as to quantum of the appellant.
48 The point has arisen before. The most recent case appears to be James Hardie & Co v Seltsam Pty Ltd (1998) 196 CLR 53. The case came from NSW and concerned the provisions of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) and s 5(2), provisions in terms identical to the operative portions of our s 7(1)(c) and s 7(2). The plaintiff had, as in this case, sued three defendants as concurrent tortfeasors. But in that case, in circumstances different to those applicable here, by consent, the plaintiff recovered judgment against
(Page 17)
- two defendants and judgment was entered for the third defendant against the plaintiff. Those were therefore, final judgments, albeit by consent, and the situation was not, as here, where the plaintiff discontinued as against the appellant.
49 In James Hardie it was accepted at trial that one of the defendants against whom judgment had been entered for the plaintiff could pursue a cross-claim for contribution against the third defendant, who had entered judgment against the plaintiff, but the High Court held that view to be in error on the ground that the third defendant, having obtained judgment against the plaintiff in its favour, was not liable to make a contribution because it could not be said to be a tortfeasor liable in respect of the damage suffered by the plaintiff as the result of the tort for which the plaintiff had recovered judgment against the other defendants.
50 As has been seen, in this case the appellant does not argue that, the plaintiff having discontinued against it by notice filed in the proceedings, it is no longer possible to regard it as a joint tortfeasor. It accepts that if, on the merits, the decision of the trial Judge is upheld, with or without a variation in the percentage which it is ordered to contribute towards the respondent's liability in damages to the plaintiff, then it is liable to make that contribution. Its point, however, is that it is not bound by the judgment for the plaintiff against the respondent to which it was not a party. In that context it should be noted, however, that neither the appellant nor the respondent contest the conclusion of the trial Judge, to the extent that his Honour reached it, that the respondent was a tortfeasor liable in damages to the plaintiff, although presumably, as a matter of logic, if the appellant's point is right it could have sought to avoid the liability to make a contribution to the award of damages to which the respondent had consented on the ground that in truth the respondent was not liable to the plaintiff.
51 As I have said, the point taken by the appellant is that, not being bound by the judgment, as it asserts, it is entitled to an independent assessment of the amount to which its liability to contribute to the respondent's liability should be applied (if, as I have already indicated I would hold, that should be the decision of the Court). In relation to that question, while the decision in James Hardie is clearly distinguishable from the present case, it is useful to have regard to some of the statements made by their Honours in the course of their judgments.
52 Gaudron and Gummow JJ at par [24] said of s 5(1)(c) of the NSW Act:
(Page 18)
- "…par (c) is concerned with the identification of parties [liable to contribute] by certain criteria, not the measure of liability to contribution. The content of the entitlement and the mechanism for its enforcement are found in s 5(2). The distinction has not always been fully appreciated."
- At par [28] their Honours continued:
"Whilst the liability ascertained as between the plaintiff and the claimant tortfeasor is a condition precedent to the assertion by that tortfeasor of its statutory right to recover contribution, the amount of that liability so ascertained is not determinative of the amount recoverable on that statutory action from other tortfeasors. Further, the connection between the liability of the claimant tortfeasor to the tort victim and the standing of the claimant to bring the statutory action for contribution does not carry the consequence that the statutory action is subjected to the same limitation or other procedural regime imposed upon an action by the tort victim against the claimant tortfeasor."
The other member of the majority, Callinan J, did not expressly take the same view, but it is a view implicit in his Honour's reasons and the same may be said of the view expressed by the minority, Kirby and McHugh JJ, who considered that properly construed, the legislation in the circumstances of that case could accommodate a claim for a contribution by the unsuccessful defendant against the defendant in whose favour judgment had been entered for the plaintiff.
53 Reference may also be made to the decision of the High Court in Bitumen & Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200, again, a case from NSW concerned with the provisions to which I have referred above and to which case Gaudron and Gummow JJ referred in their joint judgment in James Hardie. At 212 - 213 of Bitumen & Oil Refineries, again speaking of the NSW Act, s 5(1)(c), the Court in a joint judgment said:
"A decision that the liability imposed by the previous judgment is a liability which par (c) of sub -s (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under sub-s (2) of s 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under sub-s (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff
(Page 19)
- claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of 'just and equitable'."
- This decision was followed by Wells J in Bakker v Joppich (1980) 25 SASR 468, 473 - 475.
54 My conclusions therefore on this point are as follows. The effect and operation of s 7 of the Act is relevantly simply a question of statutory construction, but the meaning and the effect of the section are to be determined against the background that the judgment for the plaintiff against the respondent, in this case, not being a final judgment to which the appellant was a party, was not binding upon it. However, that judgment could be relied upon, as it was in this case, to establish the fact of the respondent's liability in respect of the damage suffered by the plaintiff as a result of the respondent's negligence. In this case, as has been seen, the evidence also canvassed the way in which the respondent was at fault and the trial Judge confirmed that that was his Honour's conclusion on the evidence overall, including the evidence of the judgment entered by consent for the plaintiff.
55 The evidence necessarily dealt with those matters so that the trial Judge might determine in terms of s 7(1)(c) whether or not the appellant was, as was alleged in the contribution proceedings, a concurrent tortfeasor also liable in respect of the damage or injuries suffered by the plaintiff and, strictly speaking, that concluded the proceedings in respect of liability to make a contribution to which s 7(1)(c) refers. His Honour might have stopped there, but there was no impediment to him going on to make an evaluation apportioning the liability to the plaintiff between the two tortfeasors conducting the proceeding before him. This, however, was part of the determination under s 7(2) of the amount of the contribution recoverable. His Honour's conclusions in that regard have been the subject of the appeal and I would uphold them.
(Page 20)
56 As the proceedings in the District Court were constructed, what remains is the assessment of the quantum to which the percentage contribution ordered by the Court is to be applied. In that regard also the appellant is not, in my view, bound by the amount of the consent judgment entered for the plaintiff against the respondent. It remains open under s 7(2) to make that assessment, "In [the] proceedings for contribution under this section", the amount of the contribution recoverable being that which "may be found by the Court to be just and equitable".
57 In my opinion therefore the last ground of appeal is made out and I would allow the appeal to the extent necessary to vary the first order made by the Court on 27 August 1999 so that it would read that, "The Third Defendant do contribute to the Second Defendant to the extent of 50 per cent of the loss and damage suffered by the Plaintiff."
58 It follows that the first ground of the cross-appeal would not be upheld and there remains only the second ground of the cross-appeal complaining that the costs of the contribution proceedings conducted before the trial Judge were reserved, although, as the respondent asserts, it was successful in those proceedings and recovered more than an offer of contribution dated 28 May 1999 made under the Rules of the Supreme Court, O 24A. Again it would follow from the views that I have expressed that this ground of the cross-appeal cannot be upheld. It remains to be seen whether, on an assessment of the amount of the contribution recoverable, the respondent will continue to do better than was offered by recovering a greater contribution in monetary terms than prior to the proceedings the appellant might have accepted, and whether upon that ground any modification of the usual order as to the costs of the contribution proceedings might be made.
4
17
1