Andrew Martin (Respondent 1) v Francis Kenneth Stratman (Respondent 2) and Rod Manning (Appellant) No. SCGRG 90/468 Judgment No. 4024 Number of Pages 25 Negligence Damages Workers' Compensation (1994) Aust..
[1994] SASC 4024
•4 March 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), PERRY(2) AND MULLIGHAN(3) JJ
CWDS
Negligence - work injury - apportionment of liability - Worker on a fruit block injured when portable elevated platform used in harvesting fruit overturned while being operated, causing injury to the plaintiff - action against the manufacturer of the machine and against the employer - held on the facts that the apportionment of liability of 85 per cent against the manufacturer and 15 per cent against the employer should be varied and that a higher apportionment should be applied to the employer, particularly having regard to the failure by the employer adequately to instruct the plaintiff as to the use of the machine which had previously demonstrated a degree of instability - apportionment varied to 35 per cent against the employer and 65 per cent against the manufacturer.
Damages - assessment of damages - Injury to the plaintiff's lumbar spine following fall from portable platform used in picking fruit - plaintiff hospitalised for a month, although not in need of surgery - persisting back pain, particularly on bending and lifting - held that award of 40 per cent for pain and suffering, representing $15,000 for the past and $25,000 for the future, was reasonable - appeal against the assessment dismissed.
Workers' compensation - Principles defining manner in which compensation received by injured workman to be brought to account when common law judgment pronounced against both the employer and a negligent third party - consideration of Worker's Compensation Act 1971, s.84 - held that sub-paragraph (l)(d) of s.84 only of application in a situation where the liability of the employer was limited to a statutory liability to pay worker's compensation - held that trial Judge was correct in holding that the contribution provisions in s.25 of the Wrongs Act were not of application to payments of compensation - order pursuant to which the plaintiff recovered only the difference between the amount of the judgment and the worker's compensation received and that the situation between the defendants was adjusted by payments which reflected their respective percentages of contribution against the total assessment of damages, was correct.
Worker's Compensation Act 1971 s84 and s82. Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; Hanson v Matthew Bros Contractors Ltd and Anor (1990) 55 SASR 183; Foster v A.T. Brine and Sons Pty Ltd (1972) WAR 157; Marrett v Australian Coastal Shipping Commission and Petterson and Co Pty Ltd (1975) WAR 37; James S. Adams and Co Pty Ltd v State Rivers and Water Supply Commission (1960) VR 542; Philip Morris Ltd v Ainley (1975) VR 345; Price v Commissioner of Highways (1968) SASR 329; Eggleston v Marley Engineers Ptv Ltd and Merrett (1979) 21 SASR 51; D'Angola v Rio Pioneer Gravel (1977) 2 NSWLR 227 and Barisic v Devenport
(1978) 2 NSWLR 111, considered.
HRNG ADELAIDE, 4 May 1993 #DATE 4:3:1994
Counsel for appellant: Mr M I Bell
Solicitors for appellant: Lawson Downs
Counsel for respondent Martin: Mr P J Day
Solicitors for respondent Martin: Mellors
Counsel for respondent Stratman: Mr J A Carr
Solicitors for respondent Stratman: J Carr and Co
ORDER
Appeal dismissed.
JUDGE1 LEGOE ACJ This is an appeal by the manufacturer of a piece of machinery known as a Hydrasquirt hired out to the second-named respondent on that party's fruit block at Monash in the Riverland area. The accident occurred on 24 February 1987. The first-named respondent was injured when the Hydrasquirt toppled over during the course of its being operated by him at about 9 a.m. on the day concerned. Allegations of the first-named respondent's contributory negligence were abandoned at the beginning of the trial. The learned trial judge gave judgment for the first-named respondent in the sum of $121,632 (excluding interest).
2. The issues on appeal are briefly: 1. The liability of the appellant as manufacturer of the equipment. 2. That the damages assessed for pain and suffering, namely $40,000 are manifestly excessive. 3. That the apportionment of damages between the appellant and the second-named respondent, namely 85 per cent against the appellant and 15 per cent against the second-named respondent, who is the employer of the first-named respondent, is an error of law and fact. 4. The terms of the order made by the learned trial judge to apportion damage in accordance with the contribution that each of the parties liable to pay damages should contribute towards the lump sum award including interest.
3. The relevant facts and circumstances leading to the above issues are set out in the reasons of my brother Perry J. It is unnecessary for me to repeat them.
4. I agree with his Honour's conclusions on this appeal as to issues 1, 2 and 4 above. However, whilst my brother Perry J would vary the apportionment so as to attribute 35 per cent to the second-named respondent and only 65 per cent to the appellant, I find myself unable to accept that this court should interfere with the apportionment of those damages as fixed by the learned trial judge in his discretion on the whole of the circumstances as found by him.
5. In order to clarify my view on apportionment I will analyse the principles of law relevant to the liability of a manufacturer of goods, on the one hand, and the liability of an employer who has hired those goods in all the circumstances, on the other hand. The relevant principles of law applicable to the liability of a manufacturer who either sells or hires the manufactured goods.
6. The principle of the manufacturer's liability may conveniently be taken from the reasons of Lord Buckmaster in the classic case of Donoghue v Stevenson (1932) AC 562 at 577 where his Lordship said:
"...the manufacturer, or indeed the repairer, of any
article, apart entirely from contract, owes a duty to any
person by whom the article is lawfully used to see that it
has been carefully constructed."
7. Lord Tomlin at p.599 expressed a similar view. Independent of any warranty, a person who manufactures and sells an article, owes a duty to take reasonable care in its design and manufacture. The duty is not limited to articles intended for personal use by way of consumption or external application, or as apparel, but extends to tools and substances or appliances of any kind, including vehicles and lifts; see Halsbury's Laws of England 4th edn vol.34 para.37 pp.32-33 and the numerous cases referred to in the footnotes to that paragraph.
8. In Hindustan SS Co Ltd v Siemens Bros and Co Ltd (1955) 1 Lloyds LR 167 at 176-178, Willmer J applied the principle in Donoghue v Stevenson (supra) but held for the defendants on the grounds that faulty design of the equipment fitted to the vessel in that case was supplied in a situation where it was reasonably probable that the plaintiff would have an opportunity of intermediate examination of the equipment, which would exonerate the manufacturer otherwise liable under the Donoghue v Stevenson (supra) principle.
9. In Lambert v Lewis (1978) 1 Lloyds LR 610 at 622, Stocker J found that the coupling to a trailer "was defective in design and dangerous in use on the public highway and that these defects were readily foreseeable by an appropriately skilled engineer considering the problem"; see p.622, col.1. In that case, the suppliers had put the coupling into circulation as "needing no maintenance" and "foolproof". The case turned substantially on implied warranty in contract and went on appeal to the Court of Appeal and House of Lords on the issue of the purchaser's right to recover an indemnity from the manufacturer for breach of warranty; see Lambert v Lewis (1982) AC 255, particularly at 275 where Lord Diplock said:
"In what circumstances can a party ('A') to a contract who
has been found liable for a breach of a duty of care owed by
him to a stranger ('X') to the contract, recover from the
other party ('B') to the contract as damages for breach of
warranty the amount of the damages for negligence which 'A'
himself has been ordered to pay to 'X'?"
10. In Griffiths v Arch Engineering Co. Ltd (1968) 3 All E.R. 217 at 220, Chapman J after reviewing the older cases and commenting that the law of negligence can no longer be pigeon-holed to precisely drawn categories such as purchasers, children, friends or neighbours of purchasers, tenants, hirers, invitees, licensees, voluntary bailees for reward or even bare uses etc. his Lordship stated that nowadays, the basic questions are always the same, namely:
"(1) Was there a reasonably foreseeable risk that the person
in fact injured would sustain injury if no precautions were
taken to guard against the risk?; and
(2) Was the defendant so situated that it was incumbent on
him to take reasonable precautions to guard against that
risk?"
11. His Lordship answered both questions (1) and (2) in the affirmative against the engineer and manufacturer of the pneumatic portable grinding machine which was used for welding work on a pier and which was the subject of that case; see p.222i.
12. In Australia the law in such circumstances has been conveniently stated by Deane J in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16 at 50:
"Where a duty of care exists under the common law of
negligence, it requires the taking of reasonable care to
avoid a reasonably foreseeable and real risk of injury. That
being so, a relevant duty of care will have existed in a
particular case only if there was reasonable foreseeability
of a real risk that injury of the kind sustained would be
sustained by a member or members of a class which included
the particular plaintiff. If the common law duty of care
were an unqualified one owed to the world at large,
reasonable foreseeability of injury of the kind sustained by
a plaintiff would be the sole determinant of the existence
of a relevant duty of care; it would be both a sufficient
and the exclusive criterion of whether a particular
defendant owed a relevant duty of care to a particular
plaintiff. It is, however, plain that that is not, and has
never been, the common law. Some effective dditional limit
or 'control mechanism' must be recognized as applying to at
least come categories of case; see Caltex Oil (Australia)
Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529 at 574;
Jaensch v Coffey (1984) 155 CLR 549 at 552-553, 583-584; and
Candlewood Navigation Corporation Ltd v Mitsui Osk Lines Ltd
(1986) AC 1 at 24-25."
13. In a case which was apparently not referred to the learned trial judge, nor to this court, Millhouse J gave a decision which, in my opinion, clearly delineates the area of a manufacturer's liability to a 'stranger'; see Shepherd v S J Banks and Son Pty Ltd and Anor (1987) 45 SASR 437. In that case, a youthful plaintiff, an apprentice greenkeeper, was injured when a lawn aerating machine pinned down his left foot and leg. The plaintiff sued the manufacturer on the grounds that the machine was unsafe as no guard had been provided between the spiked roller and the operator who was required to walk backwards as the machine moved towards him. Millhouse J found that the manufacturer was negligent on that basis; see p.439. His Honour took the statement of law from the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 where the learned justice of the High Court said that a breach of duty of care arises when, firstly, the tribunal of fact asks itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff, and secondly, if that question is answered in the affirmative, then the tribunal of fact must determine what a reasonable man would do by way of response to the risk. Further, his Honour noted that the perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence along with expense, difficulty and inconvenience of taking alleviating action and other conflicting responsibilities which the defendant may have. When these matters are balanced out the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. Millhouse J then, at p.440, in his own inimitable style posed these questions to the particular findings of fact that he had made about the machine and the manufacturers conduct in relation to its manufacture and distribution. His Honour applied the approach of Lush J in Todman v Victa Ltd (1982) VR 849 at 851, namely:
"The question is whether the machine has been designed and
constructed with a degree of care appropriate to the dangers
to minimize the risks."
14. As Millhouse J did not consider the machine was originally so constructed he came to the conclusion that the defendant was negligent.
15. These cases and many others were considered and discussed in the judgment of Cooper J who wrote the judgment of the Full Court of the Supreme Court of Queensland in Sousaari v Steinhardt and Anor (1989) ATR 80,268. In that case a manufacturer had manufactured trailers to transport sugar cane transport bins. The trailers were sold to the defendants who were farmers. In a similar situation to the case at bar and to Shepherd v S J Banks and Son (supra) the plaintiff, an employee, sued the manufacturer and the employer, namely, the farmer. At p.68,859 Cooper J reviewed the cases on breach of warranty and fitness for purpose and at the bottom of the second column of that page stressed the importance of the distinction between a claim based in negligence and one based on breach of contractual condition. Reference was made to the statement of Lord Fraser in Junior Books Ltd v Veitchi Ltd (1983) 1 AC 520 at 533, where his Lordship described the manufacturer's duty as one owed to all who are his "neighbours". This duty is imposed by the general law and is in addition to contractual duties to other parties to the contract. A plea of conflict with contractual duties is not recognized by the law.
"But a duty not to produce a defective article sets a
standard which is less easily ascertained, because it has to
be judged largely by reference to the contract."
16. After noting at p.68,860 that the statement of Lord Aitkin in Donoghue v Stevenson (supra) that to state the duty of the appellant as a manufacturer was to state the duty too narrowly. Cooper J referred to a number of authorities in that regard. His Honour said at p.68,861 that the requisite degree of proximity exists between a manufacturer and the user of the article produced -
"because the user is so closely and directly affected by the
act of designing and manufacturing an article that the
manufacturer ought reasonably to have the user in
contemplation as being affected when the manufacturer is
directing his mind to the sufficiency of the design and
manufacturing process, the safety of the product and the
circumstances of distribution at the time when he places the
product into circulation for use or consumption."
17. Further, the measure of the duty is the objective standard of the reasonable man, ibid. But there is no absolute duty on a manufacturer to design or manufacture a defect-free or accident-proof product. There is -
"no common law regime of strict liability for products which
are inherently dangerous and a manufacturer is not an
insurer against injury. The circumstance that the product
is inherently extremely dangerous, or, that the gravity of
the risk of injury which negligence creates is serious, only
requires a higher duty of care be exercised ..."
18. Cooper J at p.68,862 went on to consider the extent of the duty of the manufacturer of the article for the intended manner of its use and purpose. His Honour said:
"Discharge of the duty requires the designer to think
through the suitability of the design, the problems and
risks associated with the design; the graver the foreseeable
consequences of failure to take care, the greater the
necessity for special circumspection."
19. See also Todman v Victa Ltd (supra) per Lush J at 852 and to a similar effect Murphy J at 857: The standard is that of a reasonably competent engineer; see Windward v TVR Engineering (1986) BTLC 366 CA and Griffiths v Arch Engineering (supra). After reviewing further authority and the facts of the case, Cooper J concluded at p.68,864 that the respondents were liable to the plaintiff for damages in negligence for providing the plaintiff with defective machinery to perform his work. The risk was foreseeable. The duty owed to the respondents had been made out.
20. When reviewing the question of causation, Cooper J said at 68,864 at the bottom of the second column:
"Mere knowledge of a danger created by the appellant and a
voluntary incurring of the danger are not sufficient to
excuse the appellant, for the appellant's design and conduct
may have acted to induce the plaintiff and the respondents,
as reasonable men, to incur the danger."
21. In the case at bar, counsel for the appellant has examined extensively the findings that were made by the learned trial judge and criticised his conclusions on the evidence which was before the court. I agree with my brother Perry J that the findings made by the learned judge were correct and amply supported by the evidence of the plaintiff (first respondent) which evidence was accepted by the learned trial judge, although he did state that he thought that the plaintiff's recollection was "almost certainly incomplete", as well as the evidence of the expert, Mr Maddern. The finding that the Hydrasquirt was inherently unstable was fully justified on the evidence. In particular, that the risk was foreseeable, was consistent with the principles of law which I have referred to above. I would therefore apply to this case, the reasons expressed by Millhouse J in Shepherd v Banks (supra). It should be noted that in that case, the learned trial judge was unable to say precisely how the accident occurred. It has been clearly stated in a number of authorities that it is not necessary for the plaintiff to prove the exact sequence of events which led to the negligent act if in all the circumstances there was a foreseeable risk established on the evidence and that the defendant was in breach of its duty; see Parker v Housing Trust
(1985) 41 SASR 493 at 509 and the authorities therein mentioned, and see Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121 at 130 per King CJ.
22. I turn now to consider the question of apportionment of the liability between the appellant and second-named respondent. Apportionment of liability. The first respondent's particulars of negligence against his employer, the second-named respondent, may briefly be summarised under five headings: 1. that the respondent Stratman failed to give any instruction to the plaintiff; 2. that he failed to supervise the plaintiff; 3. that he failed to make enquiries or adequate enquiries concerning the operation of the machine from the supplier; 4. that he failed to maintain his fruit block and his trees in an appropriate condition for the use of a Hydraplat or Hydrasquirt; and 5. that he failed to advise the plaintiff (first-named respondent) of the instability of the machine.
23. The relevant findings of the second-named respondent's negligence have been set out in full in the reasons of my brother Perry J I shall not repeat them. Basically, the learned trial judge came to the conclusion that for the various reasons set out in his reasons for judgment, the second-named respondent should have been alerted "to the basic inadequacy of the machine and to the possibility of an accident, particularly when it was in the hands of a casual employee". The learned trial judge added that the second-named respondent gave the first-named respondent "no warning or advice about the machine's instability". It is also apparent that the second-named respondent did not consider that he needed to give any such warning or advice in the circumstances. Accordingly, the learned trial judge found the second-named respondent failed to take sufficient care for the safety of the first-named respondent. But those findings fall short of a finding that the second-named respondent had a real opportunity of "intermediate inspection" which should have alerted him to the "inherent instability" of the Hydrasquirt.
24. On these findings the learned trial judge concluded that the appellant's responsibility was "much greater than Stratman's" and apportioned the liability 15 per cent against Stratman and 85 per cent against the appellant. The appellant's relevant ground of appeal is number 12 which reads:
"That the Learned Trial Judge erred in apportioning
liability between the appellant and the respondent Stratman
on the basis of a 15/85 apportionment in the respondent
Stratman's favour. The Learned Trial Judge failed to
sufficiently take into account the two likely scenarios in
relation to how the accident happened when apportioning
liability. The Learned Trial Judge failed to sufficiently
take into account the lack of supervision and training
provided by the respondent Mr Stratman to the respondent
Martin, whom the Learned Trial Judge found to be 'a casual
and inexperienced fruit picker from Adelaide'."
25. Counsel for the second-named respondent submitted that although the second-named respondent had had some experience using Hydraplats or Hydrasquirts without serious mishap, he had had experience himself at turning one of these machines in sandy conditions and having a wheel come off the ground. Indeed, he had said that this was not rare or remarkable. The second-named respondent in fact made use of this information in giving training instructions to both the first-named respondent and to another casual employee by the name of Swinden who was working on the fruit block at the time. But this knowledge and experience did not raise with the second-named respondent concern that this machine was so unstable that it would fall over. In counsel's submission, the evidence was such that if the machine was used in an extreme way then it may have a tendency to topple. It was a matter of the operator of these machines using common sense from what was apparent from the make and structure of the machine.
26. In his evidence, the first-named respondent said that the second-named respondent did not give him any instructions in relation to how to use the Hydrasquirt but that "after Mr Stratman 'walked off', Adam Swinden showed me what the levers and the pedals did ... If you are lifting them up, you go backwards. If you do left down, right up, you go left. If you do right up, left down, you go right. That was it". A little later, the first-named respondent said that when he was spoken to by Mr Stratman, the machine was in the vacant area at the end of the fig patch. He said that over and above hearing Mr Swinden say that the machine was dangerous, he did not receive any warnings from Mr Stratman or any of the employees as to the use of the machine. Nor was anything said about its stability. The first-named respondent said that he used the machine for four or five consecutive days. He always used the same machine and always left it in the same spot where Swinden had left it after saying that it was too dangerous. The first-named respondent said that on the day in question he had been using the machine all day for the purpose of picking the tops off the trees with it.
27. The second-named respondent gave evidence that he had used standard practice for training both employees on the use of these machines. He had taken them up to the shed where he explained and demonstrated the function of the machine. He demonstrated the function. He then had a practice session and showed the employees what the machine did and why it was difficult to start at times, including demonstrating the controls. He gave evidence that he himself had not had any experience of instability whilst using the machine as such but he had experienced "circumstances which could lead further to instability".
28. He described an occasion when he drove one of the borrowed Hydraplats over the edge of a lawn but not square on so that the drop of one wheel of six inches produced an alarming sway. He added -
"but the machine was quite stable at that. So, while it was
most unpleasant and I would not recommend the procedure, it
didn't convince to me of what was fairly obvious, that the
thing should have been inherently stable. I believed that
they were designed to work within an envelope just as an
aircraft flies within an envelope."
29. The second-named respondent then gave evidence that after instructing both employees at the shed he had taken them to the plantation itself to watch their first effort at performing what had been earlier demonstrated to them. The session at the plantation took "about 15 minutes, or a bit over". The work had proceeded from that point onwards.
30. The evidence of a Mr Filippo Nobile was basically confirmatory of the second-named respondent's evidence as to the training and instructions that had been given.
31. The learned trial judge made no finding as to the credibility or accuracy of the evidence of either the second-named respondent Stratman or his employee, Mr Nobile.
32. It is important to note that the learned trial judge concluded that the Hydrasquirt was inherently unstable by reason of its design, and that that design instability contributed to the accident. His Honour further held that that instability could have been improved and even rectified by the simple and inexpensive means set out in his reasons for judgment. If the appellant had made these modifications, as indeed he should have, to reduce or exclude his own liability in the matter, then the second-named respondent would clearly have had no duty or concern to give any special instructions. The inherent instability would not then be reasonably foreseeable by the competent engineer. However, this does not necessarily mean that because the appellant did not make any modifications, the second-named respondent had a duty or concern to give special instructions. The second-named respondent is not, nor was he presumed to be, an engineer. It was not found that he could have alerted himself to the necessity of such modifications. Nor should he necessarily have known and appreciated the means by which these modifications in design could have been effected before putting the machine to use on his fruit block. Obviously, the second-named respondent hired the machine in good faith, believing that it would be fit for the purpose intended. No intermediate inspection by the second-named respondent could have or even should have alerted him to the necessity of making these modifications to prevent harm.
33. Viewed in this light and taking into account all the circumstances, I am quite unable to agree that Stratman's departure from his duty of care to his casual employee was very significant. There is nothing to show that the incident some two days prior to the accident, when the other employee Swinden refused to use the Hydrasquirt because it was apparently too dangerous, alerted Stratman or should have alerted Stratman to the inherent instability in the basic design of the machine as found by the learned trial judge. It did alert him to the use of some care in operating the Hydrasquirt. I pose the question "What instruction or advice could Stratman, the employer, have given to his employee (the first-named respondent) after Swinden had refused to use the machine?" The first-named respondent was present when Swinden had spoken to Stratman about the machine. The warning made by Swinden was, in my opinion, sufficient to alert the first-named respondent to take care in the use of the machine. But it did not totally relieve Stratman from his duty to warn Martin to take care. The primary negligence was that of the appellant in hiring out the machine which a competent engineer would realise was inherently unstable. The second-named respondent's duty as employer must be weighed up in the light of these particular circumstances.
34. In the cases referred to above relating to liability of a manufacturer in relation to a faulty design of machinery or equipment, there is some discussion of the situation where a purchaser or hirer of the machinery employs a third party who is a stranger to the contract of sale or hire, and fails to take appropriate action in respect of a defect in design which becomes apparent; see Lambert v Lewis (1982) AC 225 compare Sousaari v Steinhardt and Anor (supra) and other cases discussed therein. In my opinion, the learned trial judge was clearly entitled on the evidence before him to come to the conclusion that the appellant's responsibility was much greater than Stratman's.
35. The question then arises as to whether the actual apportionment of 15/85 per cent in Stratman's favour is so out of balance with the appellant's much greater responsibility as to lead this court to interfere and reassess the apportionment.
"It is a question of the degree of fault, depending on a
trained and expert judgment considering all the
circumstances, and it is different in essence from a mere
finding of fact in the ordinary sense. It is a question, not
of principle or proportion, of balance and relative
emphasis, and of positive findings of fact or law, but of
weighing different considerations. It involves an individual
choice or discretion, as to which there may well be
differences of opinion by different minds. It is for that
reason, I think, that an appellate court has been warned
against interfering, save in very exceptional circumstances,
with the judge's apportionment." (per Lord Wright in British
Fame (Owners) v MacGregor (Owners) (1943) AC 197 at 201) Lord
Wright's approach has been consistently applied by this court; see
Pollard v Ensor (1969) SASR 57 in the dissenting judgment of Bray
CJ where the learned Chief Justice discussed the relevant
principles applicable to variations of degrees of responsibility
by an appellate court which principles were later confirmed by
this court 18 unanimously in Engelhardt v Garret and Finn (1974) 9
SASR 148 at 153-154, and Grantham v State of South Australia and
Anor (1975) 12 SASR 74 at 86-88 per Bray CJ: "I can find no
error of law in the learned Judge's apportionment and I accept his
findings of fact. I can see no reason for interfering with them."
36. And also at p. 92 per Zelling J and p.97 per Jacobs J. On the authority of the abovementioned cases, I am quite unable to agree with my brother Perry J that this court should interfere and vary the learned trial judge's apportionment as to liability. It was certainly not, in my opinion, the sort of situation which could be described as "exceptional" from the point of view of determining the degrees of responsibility for the accident. Clearly, the first-named respondent was injured because of the inherently unstable design of the machine. It is immaterial, to my mind, as to exactly how the accident happened, although the learned trial judge did find that it happened in either one of two ways. Whichever way led to the toppling over of the machine I am clearly of the opinion that the greatest proportion of responsibility for the accident lies with the appellant. The other issues on appeal. As to the assessment of damages relating to the $40,000 awarded for pain and suffering and to the form of order made by the learned trial judge, I entirely agree with my brother Perry J that the appellant's submissions should fail. I would adopt, with respect, my brother Perry J's consideration of the relevant case law on the form of order which was made by the learned trial judge in this case.
37. For these reasons I would dismiss the appeal.
JUDGE2 PERRY J This is an appeal by one of two defendants against a judgment given against them in favour of the plaintiff who was injured in the course of an accident which occurred on 24 February 1987 on a fruit block operated by the second respondent, Stratman at Monash. The accident occurred when a piece of equipment upon which the plaintiff, the first respondent to the appeal, was standing, fell over. The equipment had been manufactured and supplied on hire by the appellant to Stratman.
2. The learned trial Judge found both the appellant and Stratman to be liable for the plaintiff's injuries. On contribution proceedings between the two defendants, he apportioned liability on the basis of 85 per cent against the appellant and 15 per cent against Stratman.
3. The learned trial Judge assessed the plaintiff's damages (excluding interest) at $121,632. Included in the assessment was an allowance of $40,000 by way of general damages for past and future pain and suffering. The appellant appeals against that component in the award of damages.
4. The appellant further appeals against orders made by the learned trial Judge which were intended to give effect to his finding as to apportionment between the defendants, while at the same time preserving Stratman's right to off-set certain worker's compensation payments totalling $56,387. I will come to the detail of those orders in due course. At the time of the accident, the plaintiff was 24 years of age. Early in January 1987 he and another young friend, a Mr Swindon, went from Adelaide to the Riverland in search of casual work picking fruit. They were taken on by Stratman, whose fruit block was planted with vines and fig trees. The plaintiff and Swindon were put to work harvesting figs.
5. It appears that the appellant was in the business, amongst other things, of hiring out to fruit growers equipment to assist with harvesting. About a week before the accident he hired to Stratman two machines. Both machines were constructed in much the same fashion, and functioned in a similar way. One, however, was larger than the other. The larger machine was known as a Hydraplat, and the smaller machine a Hydrasquirt. The machines had been manufactured by the appellant, who sold them as well as letting them out on hire. Since about 1970, he had manufactured some 600 of them. The machines were modelled on a similar piece of equipment imported into Australia from Israel, known as an Afron. The Afron, however, embodied a number of refinements not present in either the Hydraplat or the Hydrasquirt.
6. Although there was at some stage during the trial a degree of uncertainty as to which of the two machines was involved in the accident, the learned trial Judge found that at the time the plaintiff was using the Hydrasquirt. On appeal there has been no challenge by any party to that finding.
7. The learned trial Judge gave the following description of the machine in question:
"The Hydrasquirt was a simple horizontal steel frame on
three wheels, triangular in plan, with a boom 2.43 metres
long, pivoted above the castor wheel, that could be elevated
to a height of about 3.2 metres above the ground. At the
free end of the boom was a platform upon which a person
could stand to pick fruit. The platform had a light
framework or guard mounted on it to which were attached
removable bins to hold the fruit. This particular
Hydrasquirt was powered by hydraulic motors. The three
wheels were fitted with pneumatic tyres. Only the two
forward wheels were powered. The castor or swivelling wheel
normally ran behind, but the machine could work in reverse.
The driving wheels were about 1.5 metres apart, and from the
front axle to the castor wheel's supporting pivot was 1.68
metres. The motor was adjusted by the manufacturer to
operate the machine over the ground at a speed of about 2.6
kph. It was designed to be operated from the platform by
means of hand and foot controls. There was nothing like a
normal accelerator or throttle at the disposal of the
operator so, unless when perhaps in the hands of a very
experienced operator, it was a matter of the power to a
wheel being either wholly on or wholly off. Each wheel,
however, was powered separately and had its own lever in the
cabin to control it. There was no steering wheel. To turn
the vehicle one simply operated one of the drive wheels
alone or, if a sharper turn were wanted, by simultaneously
putting the other wheel into reverse. The boom could also be
raised or lowered from the cabin. It was better to travel
over the ground with the boom down, but it was possible to
move the machine with the boom in the elevated position."
8. At the time of the accident, the plaintiff was working in the fig plantation which was adjacent to a vineyard. The ground sloped away slightly from the fig trees to the vines. The fig trees were about 5 metres in height. In using the Hydrasquirt, the technique was to approach a tree with the boom in the fully elevated position. The driving wheels would be allowed to run under the lower branches, and the machine would then be stopped. While in the stationary position, the boom would be lowered so that from the cabin the operator could reach the upper branches. He would place the fruit as it was harvested into the bins attached to the front of the cabin. After picking the fruit within reach, the boom would be elevated, the machine reversed out and the operation then repeated until the tree was completely picked.
9. The plaintiff was working alone, and the immediate circumstances of the accident were by no means clear. The accident happened at about 9 o'clock in the morning.
10. The plaintiff's evidence was that he had just finished filling the two containers provided for the fruit, and had raised the boom to its maximum elevation and was in the process of reversing backwards from the tree when the accident occurred.
11. In the course of his evidence he gave the following description:
"A. Then I was in the process of reversing backwards.
Q. How did you do that.
A. Lift the hammers (the controls) up both at the same time
to go backwards, like I done on any other tree, but it was a
bit bouncy and I didn't think I was moving and when I looked
down I saw that the left hand front drive wheel was off the
ground and the next thing I know the tree was going away
from me, and I looked over my right shoulder and the ground
was coming towards me.
Q. Which way did you fall.
A. I fell straight over to the right.
Q. You mentioned that you looked over the side and you saw
the left wheel off the ground.
A. Yes.
Q. What sort of view did you have of the left wheel.
A. I only just seen it, you know, I could only just see the
wheel down by the tree and it wasn't a very good view, but
at that time definitely off the ground.
Q. Roughly how far was it off the ground.
A. Three or four inches. I could see there was light under
the wheel. It was off the ground. That's how I knew that.
Q. Was your vision of that wheel obscured by any branches.
A. No.
Q. When you started to fall, what did you do.
A. I shouted as loud as I could because I knew I was going
to be injured because of the height that I was at. I didn't
know to what extent and I shouted as loud as I could so that
someone could hear me, preferably Mr Orrick because he was
the closest person working to me, about three or four rows
out, and I am not too sure, but if he didn't hear me, I
might have been there all day if I was knocked out. But he
didn't hear me shout. He heard the hydrablade hit the
ground.
HIS HONOUR Q. The whole machine capsized, not just the
cabin.
A. No, I stayed in it. It went over.
Q. At the point where it capsized, was the boom fully
extended.
A. Yes, it was."
12. It is important to note, as it clear from that passage, that the plaintiff fell with the machine, not from it.
13. Expert evidence was given by two engineers who offered opinions as to the stability of the Hydrasquirt and possible shortcomings affecting its safe operation. Evidence was given by the appellant and his mechanic a Mr Milich as to their experience with the operation of the machine in the Riverland during the years leading up to the accident.
14. The result of the evidence was to leave the question of the immediate cause of the overturning of the machine the subject of contradictory opinions which were largely irreconcilable. The learned trial Judge commented that the evidence gave rise to
"..."a degree of confusion and contradiction about the cause
of the accident that was unusual even for a case of this
kind. Practically the only thing upon which the witnesses at
the site could agree was the fact that the machine did
capsize in the vicinity of one of the fig trees opposite the
vineyard."
15. The conflicts in the evidence extended to the opinions offered by the two engineers. However, the learned trial Judge's preference at the end of the day for the evidence of one expert, Mr Maddern, over the other was not challenged by the appellant.
16. The learned trial Judge clearly accepted the plaintiff's account of what happened, but he thought that the plaintiff's recollection was "almost certainly incomplete". In particular, he thought that, contrary to the plaintiff's belief, it might well have been the case that he was "turning the machine to quite an appreciable degree when it overturned, and that he travelled more than a couple of feet".
17. The learned trial Judge was then led to the view which finds expression in the following passage from his reasons (865):
"The two most likely, or rather least unlikely, explanations
are that the Hydrasquirt got entangled in a branch of the
tree and was, as it were, pulled over; alternatively, that
the plaintiff was (contrary to his belief) reversing and
turning at the same time, and that as the Hydrasquirt
cleared the tree one of the wheels ran into a hole or
depression or over a ridge or other obstruction and that
this combination of circumstances, aided by the natural
slope of the ground, induced or exploited an instability
which caused the Hydrasquirt to capsize. As I have
indicated, it is not easy to reconcile either theory with
the lay and expert evidence but I am satisfied that the
accident happened in one of those two ways. I incline to the
first theory but it does not greatly matter which possible
explanation is correct. I should say that the fact that the
machine ended up on its side on the track some little
distance from the tree is perhaps surprising but is not
inconsistent with either theory."
18. The learned trial Judge went on to conclude that the Hydrasquirt, largely by reason of its design, was inherently unstable, and that the instability contributed to the accident. He further held that the instability could have been improved by relatively simple design modifications.
19. The negligence found against the appellant was that he failed to design and manufacture the machine in a way which would have made it more stable, and in failing to give any warning to Stratman when he took the machine on hire, of its instability, and of the care which should be taken in its operation to avoid its capsizing. The appellant gave no warning pamphlets to Stratman, nor did he attach any warning on the machine itself.
20. The learned trial Judge found, in my opinion correctly, that it was foreseeable that the machines "would be used in a variety of physical conditions and by young and inexperienced pickers". He held that it was no answer for the appellant to point out that reported accidents had been few.
21. The appellant complained that the learned trial Judge erred in finding that the accident occurred in either of two ways, neither of which were said to be "consistent" with the plaintiff's account. In my opinion, that criticism should not be accepted. The plaintiff was describing an incident which had occurred nearly five and a half years beforehand, and was clearly caught by surprise by the machine capsizing when it did. It is highly likely that the plaintiff did not, in those circumstances, appreciate in full the immediate circumstances. In my opinion, the two explanations offered by the learned trial Judge were justified by the evidence, given that the machine unquestionably fell when it did, its position after it had capsized, its known characteristics, and the evidence of Mr Maddern.
22. The appellant further contended that the learned trial Judge erred in failing to determine which of the two most probable explanations which he found, was the correct one. This was because, so the appellant argued, if the machine tipped over after it had become entangled in the branches of a tree, the learned trial Judge should have concluded that in that case the fall was attributable to the manner in which it was driven rather than any alleged instability.
23. In my opinion, that contention is not sound. In the first place, that argument ignores the effect of the failure on the part of the appellant to give proper warnings when he hired out the machine. In the second place, it would not follow from a finding that entanglement in the tree was causative, that inherent instability of the machine should not properly be regarded as a contributing cause.
24. The appellant further put the argument that, if on the other hand the second explanation suggested by the learned trial Judge was to be accepted, namely, that the plaintiff reversed and turned the machine at the same time, during the course of which one of the wheels ran into a hole, a depression, or other obstruction, which, together with the natural slope of the ground may have induced the machine to capsize, the appellant should have been exonerated as on that scenario the overturning should be regarded as a product of the fact that the machine was driven over uneven ground rather than because of any inherent instability.
25. In my opinion, that argument likewise should be rejected as there was nothing to suggest that the conditions in which the machine was being driven in and around Stratman's orchard were unusual conditions in the Riverland. The photographs tendered in evidence indicate that, not surprisingly, there is evidence that the ground around the tree is to a degree uneven, and marked by ruts, wheel tracks and the like. After all, the machines were being supplied for use amongst growing crops, which would be likely to offer a surface far less even than the carriageway of a road or a well-maintained track.
26. It was not necessary for the plaintiff to succeed on the issue of liability that he prove precisely how the accident happened. It was open to the learned trial Judge to find negligence proved against the appellant, if the design and construction of the Hydrasquirt gave rise to an inherent instability which could have been avoided by relatively simple modifications; that however the accident happened, that instability more than likely contributed to its capsize; and that there had been a failure by the appellant to give to persons hiring out the machines proper instructions and warnings as to their safe operation.
27. Insofar as the appellant suggested that the evidence did not support the finding that the machine was inherently unstable, in my opinion, that finding was properly made, particularly bearing in mind the learned trial Judge's preference for the evidence of the witness Maddern. In dealing with this aspect of the appellant's negligence, the learned trial Judge observed:
"I think he should at the outset have submitted to a
qualified engineer a design and specification of the
machines he proposed to build, and have given the prototype
thorough field tests that would adequately anticipate the
various conditions that might be encountered on the
Riverland fruit blocks. I appreciate that Manning has called
as a witness in this case an engineer who has little
criticism to make of his machines, but I think the
likelihood is that most engineers would have recommended
additional safety features. Three that readily suggest
themselves as practicable and not particularly expensive,
and are relevant to this accident, are appreciably increased
weight at the base of the machine, a governor, or load
dependent throttle, that would limit the speed of the
machine when the boom was fully elevated, and a tamper-proof
speed control. Of those probably the most important for
present purposes was adding to the weight of the framework
to make the Hydrasquirt more stable, although keeping the
speed down when the boom was fully elevated was also
important."
28. The findings in that passage were, in my opinion, correct. I would add that, according to the evidence of Maddern, the Hydrasquirt was made to a price which involved a sacrifice of safety considerations. He said in one of his reports:
"I view the hydrasquirt machine as a design apparently made
simply to a price, and in doing so sacrificing safety
considerations quite significantly".
29. The machine was being offered for use in a market in which it was competing with the Afron, and it was open to the learned trial Judge to conclude that shortcuts had been taken in its design and construction in an endeavour to undercut the price of the Afron.
30. As well as the matters referred to by the learned trial Judge in that respect, it appears that the Afron was equipped with a form of clutch which made its operation much less jerky.
31. In my opinion, the appellant has failed to demonstrate an error in the chain of reasoning of the learned trial Judge leading to the finding of negligence against him. I would dismiss this aspect of the appellant's appeal.
32. The appellant also attacked the apportionment reached by the learned trial Judge. Before dealing with that part of the appeal, I will quote the passage in his reasons for judgment which explains the basis upon which he found Stratman negligent:
"I think the plaintiff is also entitled to a judgment
against Stratman. There was nothing about the general
appearance of the Hydrasquirt, or the movement at platform
level with the boom fully extended, to inspire on the part
of either onlooker or operator any great confidence in the
machine's stability. True, Stratman had been using
Hydraplats or Hydrasquirts at harvest time for a year or so
before this accident without serious mishap, and he knew
that there were many of them in use around the Riverland. No
doubt he was entitled to place a good deal of reliance upon
the fact that a presumably responsible manufacturer had put
them on the market. He had not received any warning
pamphlets from Manning or any other hire firm. However, he
had had experience himself of turning one of these machines
in sandy conditions and having a wheel come off the ground.
Indeed, he said that this was not rare or remarkable. He had
known instances, albeit rare, of the boom getting hooked up
in a tree branch and lifting a wheel significantly off the
ground, "and if anybody was so dense as to not notice it,
and went on operating, it could well topple the unit". Only
a few days before the plaintiff's accident Swindon had
refused to continue using this Hydrasquirt. He explained to
Stratman that he had seen a wheel lift off the ground, and
he described the machine to Stratman as dangerous. I think
all of these incidents, taken together, should have alerted
Stratman to the basic inadequacy of the machine and to the
possibility of an accident, particularly when it was in the
hands of a casual employee. It was not as though the
plaintiff had proved himself to be a cautious and attentive
workman who could be relied upon to perceive at once any
untoward movement on the Hydrasquirt's part in time to do
something about it. He was young and inexperienced. Stratman
gave the plaintiff no warning or advice about the machine's
instability. He saw no need to. In my opinion, Stratman
failed to take sufficient care for the safety of the
plaintiff."
33. The finding of negligence against Mr Stratman is not the subject of any appeal.
34. Having made that finding, the learned trial Judge gave no extended reasons for the apportionment which he arrived at, except to say that the appellant's responsibility was much greater than Stratman's.
35. An employer owes a high duty of care towards employees, and the findings of negligence against Stratman turn on departures by Stratman from the duty of care required of him in quite significant respects. It is not unimportant to note that there was evidence that some two days before the accident occurred, not only had Swindon refused to use the Hydrasquirt, saying that it was "too dangerous", but Stratman then turned to the plaintiff and asked him whether he would be prepared to "have a go on it". Stratman then provided the machine for the use of the plaintiff, without giving any instruction whatever as to its use, or as to any precautions which should be taken in the interest of its safe operation.
36. It must be accepted that this Court does not interfere lightly with an apportionment of liability by the trial Judge, who must generally be regarded as in a better position in which to decide that aspect of the matter. However, it does seem to me that 15 per cent is a very low percentage to award against an employer who adopted such a casual attitude to his responsibilities vis-a-vis the plaintiff. Clearly, Stratman had had sufficient experience of the operation of the machine to be well aware of the need for care in its use. His failure to answer to the obligation imposed upon him to give some instruction as to the machine's use, coupled with a warning as to hazards to be avoided when using it, given the fact that the plaintiff was a young, inexperienced, casual fruit picker, should, in my opinion, have resulted in a higher apportionment of liability against him. While in my opinion a substantially higher percentage must still be attributed to the appellant, I would vary the apportionment so as to attribute 35 per cent to Stratman and 65 per cent to the appellant.
37. I turn to the appeal against damages. Following the accident, the plaintiff was taken by ambulance to Berri Hospital. He was found to have suffered compression fractures of three lumbar discs. It is some indication of the severity of the injuries that he remained at Berri Hospital for a month, following which he spent a few days at Modbury Hospital. It is clear that the plaintiff suffered a good deal of pain and discomfort in hospital, and required pain killers.
38. When he returned home following his discharge from hospital, he could not perform a number of simple tasks, such as pulling his socks on. He did not feel fit for work, despite a certification by his treating surgeon at Modbury Hospital that he was fit for light work.
39. Further testing of the back included a discogram under local anaesthetic. About a year after his discharge from hospital he undertook rehabilitation at Western Region Rehabilitation Centre. Later he tried acupuncture. His condition reached a state of relative stability about a year and a half after the accident. Since then he has experienced back pain, particularly on bending or lifting. He has trouble with sleeping. His evidence was, "I toss and turn the whole night". He continues to take pain relieving tablets and muscle relaxants.
40. He now lives in a unit with his girlfriend. He gets pain when he sits or stands for long periods. An orthopaedic surgeon, Mr Fry, gave evidence at the trial to the effect that although the compression fractures had healed satisfactorily, the plaintiff could expect some ongoing pain and discomfort. It is fair to say that he put the level of disability at somewhat lower than the other orthopaedic specialist who was called, Mr Dobson. The latter thought that as a result of the injury, the plaintiff had been left with a level of residual disability which would affect him on lifting, bending, stopping and repetitive movements. He agreed that standing or sitting could cause problems, and that the plaintiff's residual disability was likely to be permanent, with possibly some deterioration but no improvement.
41. The award of $40,000 for pain and suffering represented an assessment of $15,000 for the past and $25,000 for the future.
42. In my opinion, both amounts are reasonable, and the appellant has failed to make out the appeal against the assessment of damages.
43. The remaining ground of appeal gives rise to a difficult question relating to the manner in which the payment before trial of worker's compensation should be brought to account when a judgment at common law is pronounced both against the employer and a third party.
44. Before trial, the plaintiff received payments under the Workers' Compensation Act 1971 from, or on behalf of, Stratman, totalling $56,387.
45. The Workers' Compensation Act 1971 ("the Act") has since been repealed, but there is no doubt that the relevant provisions of that Act are applicable to this case.
46. S.84 of the Act reads:
"(1) Where the injury for which compensation is payable
under this Act was caused under circumstances creating a
legal liability in some person other than the employer
(which other person is hereinafter called "the third party")
to pay damages in respect thereof, the following provisions
shall apply: (a) the worker may take proceedings both
against the third party to recover damages and against the
employer for compensation;
(b) a worker who receives any money from a third party in
respect of an injury and compensation under this Act shall
repay to the employer such amount of that compensation as
does not exceed the amount recovered from the third party;
(c) upon notice to the third party, the employer shall have
a first charge on moneys payable by the third party to the
worker, to the extent of any compensation which the employer
has paid to the worker;
(d) if the worker has received compensation under this Act,
but no damages or less than the full amount of the damages
to which he is or was entitled, the third party shall be
liable to indemnify the employer against so much of the
compensation paid to the worker as does not exceed the
damages to which the worker is or was entitled but has not
received, and the employer may enforce the indemnity against
the third party by action; and (e) payment of money by a
third party to the employer pursuant to paragraph (d) of
this section shall, to the extent of the amount paid, be a
satisfaction of the liability of the third party to the
worker.
(2) Subsection (1) does not apply in relation to any payment
made to a worker under the Criminal Injuries Compensation
Act, 1978."
47. Correctly in my view, the learned trial Judge held, on the authority of Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd
(1975) 132 CLR 336, that sub-paragraph (1)(d) of s.84 of the Act was only of application in a situation where the liability of the employer was limited to a statutory liability to pay workers' compensation. Although the decision in Murray-More was with respect to corresponding legislation in New South Wales, that legislation is in the relevant respects equivalent to s.84 of the South Australian Act. In particular the High Court held that the words in the New South Wales legislation corresponding to s.84(1), before the commencement of ss.(a), were apt to refer to a case in which the third party was solely liable to the worker to the exclusion of the employer.
48. But the learned trial Judge went on to hold that the decision in Murray-More did not "...necessarily prevent an employer who was successfully sued for negligence or breach of statutory duty by one of his workers from having the workers' compensation payments he has made to the worker set off against the common law damages."
49. The learned trial Judge, again in my opinion correctly, held that it was necessary to give effect to s.82 of the Act which provides, inter alia:
(6) "Any sum received by a worker from an employer by way of
compensation under this Act or under a law of any other
State or of the Commonwealth in respect of an injury shall
be deducted from the sum recoverable by the worker from the
employer by way of damages in respect of the same injury."
50. Both s.82 and the rule of the common law against double compensation compel the Court to bring into account, at least between the employer and the workman, the amount of compensation which has been paid, in the context of any claim by the worker against the employer independently of the Act.
51. The learned trial Judge went on to consider whether or not the respective "rights and interests of the parties" could be adjusted by way of the contribution provisions to be found in Part III of the Wrongs Act. He referred to the fact that in Hanson v Matthew Bros Contractors Ltd and Anor (1990) 55 SASR 183, he had expressed a doubt whether the liability to contribute pursuant to s.25 of the Wrongs Act could properly be applied to payments made under the Workers' Compensation Act. In doing so, he cited Foster v A.T. Brine and Sons Pty Ltd (1972) WAR 157 at 161, and Marrett v Australian Coastal Shipping Commission and Peterson and Co Pty Ltd (1975) WAR 37.
52. There has been a conflict of authority on the question whether or not compensation payments may properly be described as "damages" for the purposes of the contribution legislation. The learned trial Judge took the view that workers compensation payments could not properly be regarded as "damages" for the purposes of the apportionment legislation, and could not therefore be made the subject of an order for contribution under such legislation. In doing so, he preferred observations of Gibbs J in Murray-More, 131 CLR at 351, and two Victorian decisions, namely, James S. Adams and Co Pty Ltd v State Rivers and Water Supply Commission (1960) VR 542 and Philip Morris Ltd v Ainley (1975) VR
345, to the decisions to the contrary in this Court in Price v Commissioner of Highways (1968) SASR 329 and Eggleston v Marley Engineers Pty Ltd and Merrett
(1979) 21 SASR 51. In my opinion, in coming to the view which he did, the learned trial Judge was correct. In particular, I consider that he properly held:
"...it is not open to an employer who has paid workers
compensation to a successful plaintiff to claim indemnity or
contribution towards those compensation payments under
s.27a(3) of the Wrongs Act from a tortfeasor who is
concurrently liable to the worker, whether in a damages
action brought by the worker against the two tortfeasors or
in some separate proceedings. Workers compensation payments
are not "damages" within the meaning of the Wrongs Act."
53. But having assessed damages at $121,632, and to avoid the receipt of a double benefit, he thought it proper that the plaintiff should recover only the difference between that amount and the worker's compensation of $56,387, namely the sum of $65,245. But he saw no reason why the appellant should not pay out a total of $103,387.20, which was 85 per cent of the assessed damages.
54. Provided that in doing so he did not run counter to the decision of the High Court in Murray-More, he thought that he should arrive at a result by which the appellant paid to the plaintiff $65,245, and to Stratman $38,142.20. That amount in Stratman's hands would represent a reimbursement of part of the compensation which Stratman had paid. He would be out of pocket for the balance of the compensation which would, in arithmetical terms, equate to 15 per cent of the judgment, namely $18,244.80. After identifying what he regarded as the desirability of reaching that overall result, His Honour commented:
"However, there are two problems about making orders of that
sort. First, the basic common law principle of liability of
concurrent tortfeasors is that each of them is liable to pay
the whole of the victim's damages. They are bound, as it is
said, in solido and not merely to the extent of a pro rata
share. A judgment along the lines I have just outlined would
be contrary to that principle and involve an important
departure from the general practice of this Court.
Furthermore, the usual solidary order has an important
practical aspect as well. If the successful plaintiff cannot
recover judgment against one of a number of tortfeasors, he
has the others to fall back on. If an order were made in
this case of the kind proposed, the plaintiff would be in
difficulties in the event of Manning for any reason being
unable to make the payments ordered."
55. After some further discussion of the matter, including a reference to D'Angola v Rio Pioneer Gravel Co Pty Ltd (1977) 2 NSWLR 227 and Barisic v Devenport (1978) 2 NSWLR 112, the leaned trial Judge proceeded (884):
"There are occasions when the normal practice as to solidary
orders must yield to the requirements of the particular
case. See the two decisions last cited. I think some
modification of the usual practice is warranted here. As I
have already indicated, differential judgments in this case
are necessary to accommodate the workers compensation
payments made by Stratman. I propose to enter judgment for
the plaintiff against Manning for $103,387.20 and for the
plaintiff against Stratman for $65,245. I shall give a
direction that Manning pay Stratman $38,142.20 and that he
pay the plaintiff $65,245, and that the two payments
constitute a full discharge of Manning's liability to the
plaintiff under the judgment. See s.26 of the Wrongs Act.
Such satisfaction by Manning of the damage sustained by the
plaintiff would operate at common law to discharge
Stratman's liability to the plaintiff as well. See D'Angola
at 234-5. Proceedings by the plaintiff to enforce the
judgment against Manning, beyond the amount of $65,245, will
be stayed until further order. However, it is necessary to
guard against the possibility that the plaintiff may choose
to enforce the judgment against Stratman first. I shall
therefore direct that proceedings to enforce the plaintiff's
judgment against Stratman be stayed until further order, to
the intent that the plaintiff may not seek to enforce that
judgment without leave of the Court, and then only to the
extent required to supply the difference between the amount
of the judgment against Stratman and such sums (if any) as
the plaintiff may have been able to recover from Manning.
The plaintiff, of course, will retain the workers
compensation payments. It is necessary to make those orders
in order to do justice between the parties. In my opinion,
the Court has power to make the orders, and none of the
payments made pursuant to them would constitute a repayment
by the plaintiff of the workers compensation payments made
to him by Stratman or an indemnification of Stratman by
Manning with respect to those payments. The subject of the
orders would be in form, and also I consider in fact, not
the compensation payments but the damages that the plaintiff
is entitled to recover in his action against the defendants.
The circumstance that the orders achieve indirectly under
the Wrongs Act what Stratman may not achieve directly under
the Workers Compensation Act is not to the point." (I assume
that the phrase "able to recover from Manning" should read
"unable to recover from Manning".)
56. In my opinion, the learned trial Judge was correct in the course which he took. It achieved a just result which gave proper effect to the statutory provisions, and in particular s.82 of the Act, without flying in the face of the decision of the High Court in Murray-More.
57. The appellant's argument that, having regard to the fact that under s.82 of the Act the workers compensation payments "were required to be deducted from the sum recoverable by the first respondent from the second respondent by way of damages", the first respondent could only obtain a judgment against the second respondent for the net sum, and that furthermore, contribution from the appellant could then only be sought by Stratman in respect of that net sum, namely, $65,245, must be rejected.
58. In my opinion, there is no reason why the appellant should not be required to pay (whether to the plaintiff or to Stratman) an amount which is equal to the percentage of liability found on the contribution notices as against the appellant, applied to the total assessment of the plaintiff's damages. Putting it another way, I see no reason why the appellant should get the benefit of the payment of workers compensation by Stratman. Any adjustment called for to ensure that the plaintiff does not recover twice, once by way of worker's compensation and again by way of damages at common law, is avoided by adjusting the position as between the plaintiff and Stratman, which is in effect what the working out of the order pronounced by the learned trial Judge achieves.
59. For the reasons which I have given, I would dismiss all grounds of appeal except as to the percentages of liability awarded by way of apportionment on the contribution notices between the appellant and Stratman. As I have indicated, in my opinion, the apportionment awarded against Stratman should be varied to 35 per cent.
60. To give effect to that view will require a re-assessment of the monetary amounts set out in the order after allowing for the adjustment necessary to take account of the worker's compensation payment.
61. In my opinion, the appeal should be allowed and the judgment and order varied to reflect the change in apportionment to 65 per cent and 35 per cent respectively. Consequentially, the judgment and order pronounced by the learned trial Judge should be further varied so that the payment by the appellant to Stratman be reduced from $38,102.20 to $13,815.80.
JUDGE3 MULLIGHAN J I agree that this appeal should be resolved as proposed by Perry J, and I agree with the reasons which he has expressed. I only wish to add that the learned trial Judge approached the problem as to the form of the judgment in view of the payments under the Worker's Compensation Act 1971 in accordance with principle, fairness and common sense.
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