Collins v Sydney Ports Corporation
[2012] NSWSC 1316
•31 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: Collins v Sydney Ports Corporation [2012] NSWSC 1316 Hearing dates: 21 August 2012 Decision date: 31 October 2012 Jurisdiction: Common Law Before: Harrison J Decision: Parties to bring in short minutes of the orders that they agree give effect to my conclusions, or in the absence of agreement, the orders for which they respectively contend.
Catchwords: WORKERS' COMPENSATION - assessment and amount of compensation - entitlement to cost of funds management - contribution between joint tortfeasors with respect to cost of funds management - entitlement to pre-judgment interest - entitlement to interest on past payments of weekly compensation
PROCEDURE - costs - costs as between plaintiff and first defendant - general rule costs follow the event - costs as between plaintiff and second defendant - costs as between co-defendants - costs apportioned to reflect respective liabilities of first and second defendants
STATUTES - by-laws and regulations - construction - breach of statutory dutyLegislation Cited: Civil Procedure Act 2005
Construction Safety Act 1912
Construction Safety Regulation 1950
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Workers Compensation Regulation 2010
Workplace Injury Management and Workers Compensation Act 1998Cases Cited: Ace Semi Trailer Sales Pty Ltd v Zurich Australia Ltd [2009] NSWCA 381
Collins v Sydney Ports Corporation [2012] NSWSC 115
Corbett v Toll Stevedoring Pty Ltd [2007] NSWSC 749
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Estate of the late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340
Pritchard v Trius Constructions Pty Limited [No 2] [2011] NSWSC 1114
Roads and Traffic Authority v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73
Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079Category: Consequential orders Parties: Philip Collins (Plaintiff)
Sydney Ports Corporation (First Defendant)
Australian Winch & Haulage Company Pty Ltd (Second Defendant)Representation: P R Stockley (Plaintiff)
A B Parker (First Defendant)
M T McCulloch SC with S Maybury (Second Defendant)
Higgins & Higgins (Plaintiff)
Hicksons (First Defendant)
HWL Ebsworth (Second Defendant)
File Number(s): 2009/296483
Judgment
I delivered judgment in the principal proceedings on 24 February 2012: see Collins v Sydney Ports Corporation [2012] NSWSC 115. The parties subsequently identified a series of additional and outstanding matters that arose for consideration and determination following the publication of my reasons. Those matters are as follows:
(a) Whether Mr Collins is prevented from recovering the agreed amount of $100,000 for the cost of funds management from Sydney Ports because of a pleading issue relating to Mr Collins' pre-filing statement.
(b) Whether irrespective of the outcome of issue (a), Australian Winch and Haulage is entitled to recover a proportion of the funds management cost, agreed between Mr Collins and Australian Winch and Haulage to be the sum of $140,000, from Sydney Ports.
(c) Whether Mr Collins is entitled to recover pre-judgment interest from Sydney Ports.
(d) Whether Sydney Ports is entitled to recover interest from Australian Winch and Haulage in respect of past payments of weekly compensation: see s 151Z(2)(e)(i) Workers Compensation Act 1987.
(e) Whether Mr Collins is entitled to costs from Sydney Ports.
(f) Whether Mr Collins is entitled to costs on an indemnity basis from Australian Winch and Haulage.
(g) What costs orders should be made as between Australian Winch and Haulage and Sydney Ports.
(h) Whether Australian Winch and Haulage is entitled to recover from Sydney Ports on its cross-claim a proportion of any costs that Australian Winch and Haulage is found liable to pay to Mr Collins.
(i) What further or other orders are required having regard to the preceding issues and the effect of s 151Z and s 151Z(2) in particular.
This judgment deals with those matters.
(a) Cost of funds management
Mr Collins claims the cost of funds management. Sydney Ports contends, however, that Mr Collins' claim for that cost is defeated by a combination of provisions in the Workplace Injury Management and Workers Compensation Act 1998. Section 315(1) of that Act is in the following terms:
"315 Requirement for pre-filing statement before commencing court proceedings
(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a "pre-filing statement" setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require."
Section 318 of that Act is relevantly for present purposes as follows:
"318 Parties limited to pre-filing statement and defence
(1) For the purposes of court proceedings on a claim for work injury damages:
(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and
...
(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.
(2) The court is not to grant leave under this section unless satisfied that:
(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and
(b) the failure to grant leave would substantially prejudice the party's case."
The point of difference between Mr Collins and Sydney Ports is whether or not Mr Collins' pre-filing statement was materially different from the statement of claim upon which he relied in these proceedings, in that the pre-filing statement contained no claim for the cost of funds management. If it was materially different, the further question arises as to whether Mr Collins should in the circumstances be granted leave to file an amended statement of claim that includes a claim for such cost.
Neither Mr Collins' pre-filing statements nor any proposed statement of claim annexed to any such statements made in terms any claim for the cost of funds management. He conceded as much. However Mr Collins argued that the medical material concerned with this issue was not reasonably available to him when the pre-filing statement was served. He also contended that it was or should have been apparent from the medical material ultimately served by him that such a claim was to be made and that the case was in any event conducted on that basis.
The fundamental question that arises is whether or not the statement of claim upon which Mr Collins relies "is materially different from the proposed statement of claim that formed part of the pre-filing statement served by" him. Sydney Ports contends, and it does not appear to be controversial, that Mr Collins filed an amended pre-filing statement that included the report from Cutcher and Neale, and that neither document particularised a claim for the cost of funds management. A later amended statement of claim also contained no reference to such a claim.
Sydney Ports submitted that at the time of filing the pre-filing statement Mr Collins had available to him the a report of Sharon Flanagan, a clinical psychologist and neuropsychologist, dated 27 December 2001 and a Workers Compensation Commission Medical Assessment Certificate that dealt with his intellectual impairments and the difficulties for him that flowed from these impairments as at 23 July 2006. The report referred to a number of cognitive difficulties from which Mr Collins suffered and the certificate referred to symptoms of memory and concentration problems and some difficulties with planning and judgment. The certificate also contained the following opinion:
"He has difficulties with calculations - particularly working out how much a certain item might cost. In order to avoid getting muddled now he said he simply passes over a ten or twenty dollar bill."
Sydney Ports argued in these circumstances that "the material concerned" included at least these documents and was material that was reasonably available to Mr Collins when his pre-filing statement was served. It followed from this contention that that s 318(2)(a) of the Act had not been satisfied.
Sydney Ports also argued that this point had always been flagged by it as a basis of opposition to the claim for the cost of funds management being raised against it, so that no argument could be propounded to suggest that Sydney Ports had waived or abandoned the point. For example, the issue was referred to during submissions on the seventh day of the trial in the following passages at 356-7:
"PARKER: There's also an issue as to future funds management, that's my client, your Honour.
HIS HONOUR: Do you mean entitlement to funds management at all?
PARKER: At all.
HIS HONOUR: We haven't had any evidence about that, have we?
PARKER: It's a legal question, your Honour, under the work injury damages legislation and the Workers Compensation Act.
HIS HONOUR: Not capacity.
PARKER: No, no, it's not capacity, it's whether they're entitled
HIS HONOUR: Whether it's a head of damage that's available?
PARKER: Yes, whether it's future economic loss, basically.
HIS HONOUR: Is it claimed?
CAMPBELL: Yes, your Honour, it's claimed.
PARKER: There's an issue about that too, but I don't want to deal with that.
HIS HONOUR: If it's claimed it would have to be based on a medical position, wouldn't it?
CAMPBELL: I suppose then, your Honour, I'd probably need to tender the joint report from the neuropsychologists. It's dealt with in other places but they deal with it very succinctly.
HIS HONOUR: But I'm right about that, aren't I?
PARKER: Can I just get instructions about that because I'm trying to avoid a situation.
HIS HONOUR: If you are able to agree that there's a medical basis for funds management but there's a legal impediment to its recovery, then that's one thing.
PARKER: Yes, your Honour. (Mr Parker sought instructions).
PARKER: We are not disputing the medical basis; we're disputing the legal right to it against my client because of the legislation, your Honour.
HIS HONOUR: Well that can be made the subject of submissions."
Mr Collins responded by submitting that Sydney Ports' opposition to the claim was not articulated at the time that he tendered his medical evidence arguably founding an entitlement to the cost of funds management. Moreover, despite reference to its position in passages such as that cited above, the precise legal basis for Sydney Ports' opposition to the claim was never clarified.
Mr Collins principally contended that the material concerned was not reasonably available to him when the pre-filing statement was served. He relied in that respect upon the joint report of Mr Philip Collins and Dr Jennifer Batchelor dated 26 April 2011 at [9], which identified the prospect of the need for funds management assistance. He implicitly contended that the reference in that report to Mr Collins' funds management capabilities was in stark contrast to the references to cognitive problems in purely general terms to be found in Sharon Flanagan's report and the medical assessment certificate.
So far as concerns the significance of the joint report, the relevant paragraph is in these terms:
"9. ...The test results indicate that there are reductions from pre-injury levels in new learning and memory, working memory and adaptive (executive function) such as problem solving. These reductions require the adoption of compensatory strategies in day-to-day life as described above, and given that his skills are mostly within average ranges, with intact and well above average verbal skills, he is expected to be capable of taking on appropriate systems and thereby managing independently with the exception of independent responsibility for managing large amounts of financial assets." [Emphasis added]
That professional medical opinion is in my view a significant advance upon the mere reference to difficulties with calculating such things as the cost of items at the local shops to be found in either Sharon Flanagan's report or the medical assessment certificate. The joint report does indeed appear to be the first reference to anything approaching, or foreshadowing, the potential need for assistance with the management of any funds to which Mr Collins may have become entitled as a result of this litigation. It does not for that reason appear to have been reasonably available, or indeed available at all, at the time of filing his pre-filing statement.
Mr Collins also cited what he referred to as the usual practice in common law proceedings for personal injuries damages pursuant to which the parties are not put to the expense of dealing with the cost of funds management issue until the primary findings of fact and the assessment of damages have been made. Mr Collins described obtaining evidence on the cost of funds management as "pointless" until the funds have been identified.
With respect to Mr Collins' alternative contentions based upon this so-called usual practice and the effective futility of obtaining assessments of the actual cost of funds management, it seems to me that they confuse the evidence from Furzer Crestani Services upon which Mr Collins relies to quantify these costs with the evidence of a medical kind supporting the existence of such a claim in the first place. That is the material to which s 318(2) of the Act appears to me to be directed in this case, and upon which Sydney Ports understandably relies in aid of its opposition to the grant of leave that is sought. This argument does not assist Mr Collins in the present context.
I am satisfied that the medical material concerned was not reasonably available to Mr Collins when his pre-filing statement was served. I am also satisfied that a failure to grant leave to Mr Collins would substantially prejudice his case. The arithmetically agreed sum for the cost of funds management as between Mr Collins and Sydney Ports is $100,000. The inability to recover that sum in the circumstances of this case would in my view alone be a matter of substantial prejudice to Mr Collins. I consider that the leave sought by Mr Collins to claim the cost of funds management should be granted.
(b) Funds management contribution
Australian Winch and Haulage claims to be entitled to recover on its cross-claim 65 percent of the amount for which Sydney Ports is liable to Mr Collins pursuant to the work injury damages regime, including the cost of funds management for which Sydney Ports is liable. Sydney Ports is a tortfeasor liable in respect of the same damage as Australian Winch and Haulage: s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946. The fact the Sydney Ports has the benefit of a statutory cap on the damages it can be found liable to pay has no effect upon the entitlement of Australian Winch and Haulage to recover contribution from it pursuant to s 5(1)(c) of the Act. Australian Winch and Haulage can, however, never recover more from Sydney Ports than the total damages that could be assessed in accordance with the work injury damages regime. Sydney Ports is liable for the same damage, being Mr Collins' injury: see Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73; Roads and Traffic Authority v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609.
Australian Winch and Haulage submitted, and I accept, that it was entitled to recover from Sydney Ports an amount that is just and equitable having regard to the extent of Sydney Ports' blameworthiness for the injuries suffered by Mr Collins, including a proportion of the damages assessed against Sydney Ports for the cost of funds management. I have already assessed that level of contribution at 65 percent.
(c) Pre-judgment interest
Mr Collins claims interest upon his award of damages for past economic loss, past employer superannuation contributions and his Fox v Wood entitlement. The sums to which Mr Collins is entitled under these heads have been arithmetically agreed. Mr Collins' entitlement to interest on these sums is contested by Sydney Ports.
The right to pre-trial interest conferred by s 100 of the Civil Procedure Act2005 is limited and modified by s 151M of the Workers Compensation Act. That provision is as follows:
"151M Payment of interest
(4) (a) Interest is not payable (and a court cannot order the payment of interest) on damages unless:
(i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or
(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or
(iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.
(b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to all damages of any kind.
(c) For the purposes of this subsection, an offer of settlement must be in writing."
Mr Collins relies in this case upon s 151M(4)(a)(i). It is not in dispute that Sydney Ports did not make an offer of settlement to Mr Collins in writing or indeed at all. Mr Collins contends that Sydney Ports had information sufficient for their purposes to enable a proper assessment of his claim to be made and had a reasonable opportunity thereafter to make an offer. In the way in which the argument proceeded before me, I did not perceive Sydney Ports to contest these particular matters.
However, in opposition to the claim for interest Sydney Ports contends that this is a case in which it was not "appropriate" for an offer to be made, in accordance with the use of that term in the paragraph referred to earlier. It relied by analogy upon the facts considered by Studdert J Corbett v Toll Stevedoring Pty Ltd [2007] NSWSC 749.
In that case his Honour concluded that it was not appropriate for an offer of settlement to have been made by a particular defendant having regard to the fact that that defendant was only one of five defendants named in the proceedings and there were cross claims between the defendants seeking, among other things, contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act. Moreover, his Honour was also persuaded by the fact that damages, if recoverable against defendants other than the particular defendant, were to be assessed without the restraints imposed on the assessment of damages under the Workers Compensation Act. In addition, there was no evidence in that case that the plaintiff would have accepted an offer from the particular defendant limited to damages for economic loss had it been made and there was no evidence that any other defendant made an offer of settlement to the plaintiff or was willing to contribute to a settlement. Because of the cross-claims, had the particular defendant settled with the plaintiff, it would also not have concluded proceedings from its point of view. Finally, liability and contribution were contentious issues, as evidenced by the manner in which the trial in that case had been conducted.
In my opinion the case cited by Sydney Ports offers no general statement of principle that reliably informs my consideration of the present application. Corbett was a case in which Studdert J uncontroversially concluded in effect that the interaction and operation of a series of competing and complicating factors made it inappropriate to require the particular defendant in that case to pay costs, having regard to the terms of s 151M. Corbett was a case that turned upon its own particular facts.
There does not appear to me to be any compelling reason to suggest that it was inappropriate in this case for Sydney Ports to make an offer of settlement at some stage of the proceedings. It is true to say that there were two defendants involved and that damages against each of them fell to be assessed by reference to different statutory regimes. That is not an uncommon occurrence in industrial litigation in this State and is not obviously a factor that derogates from the appropriateness of making an offer of settlement. The matter may be different if there was never any prospect that Sydney Ports could have made an offer to settle the proceedings that could have been understood or accepted. That is not the case here.
Moreover the liability of the defendants and the issues raised on the cross-claim do not appear to me to have been particularly contentious. Indeed, the liability of Sydney Ports to Mr Collins in the circumstances of this case would appear to me to be somewhat uncontroversial. The existence of claims for contribution between the defendants as tortfeasors liable to Mr Collins would also not appear to me to have made it inappropriate for Sydney Ports to offer to settle the proceedings at some stage.
In my view Sydney Ports should pay interest to Mr Collins upon the unpaid items in the arithmetically agreed sum of $190,477.
(d) Interest on past payments of weekly compensation
Sydney Ports originally commenced recovery proceedings against Australian Winch and Haulage, which was discontinued by consent and amalgamated with Sydney Ports' cross-claim. This became the amended second cross-claim filed 18 January 2011. Sydney Ports claims indemnity for the compensation payments, paid by it to Mr Collins, pursuant to s 151Z(1)(d) and interest on such payments pursuant to s 100 of the Civil Procedure Act.
However, the operation of that provision is modified by s 151Z(2)(e), which is in these terms:
"(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
...
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise-the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution-subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution."
The end result of these matters in the particular circumstances of this case is as follows. First, to the extent that Mr Collins seeks to enforce his judgment against Sydney Ports, the amount of payments made acts as a defence to the action and Sydney Ports is only required to pay the difference. Secondly, to the extent that Mr Collins seeks to enforce his judgment solely against Australian Winch and Haulage, the provisions of s 151Z(2)(e) will apply. Thirdly, it is plain that the amount of contribution recoverable by Australian Winch and Haulage is greater than the amount of any indemnity that would otherwise be owed under s 151Z(1)(d). Finally, therefore, s 151Z(2)(e)(ii) provides a defence to Sydney Ports on Australian Winch and Haulage's claim for contribution, to the extent of the indemnity that would otherwise have been available.
The net effect of this, according to Australian Winch and Haulage, is that Sydney Ports must fail on that part of its amended second cross-claim that seeks recovery of compensation from it. Sydney Ports has no entitlement to damages. Because Sydney Ports' liability to Mr Collins is greater than the compensation payments it has made, it only has a defence.
Section 100(1) of the Civil Procedure Act provides as follows:
"(1) In proceedings for the recovery of money...the court may include interest in the amount for which judgment is given..."
In the circumstances of this case, Sydney Ports is not entitled to a judgment and there is accordingly no sum that Sydney Ports can claim or upon which interest accrues.
(e) Costs as between Mr Collins and Sydney Ports
Under UCPR 42.1, costs follow the event unless it appears to the Court that some other order should be made. However, the issue of Mr Collins' entitlement to costs against Sydney Ports is in the first instance governed by the Workers Compensation Regulation. Relevantly the provisions of that regulation are as follows:
"104 Costs where claimant no less successful than claimant's final offer
If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant's final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the insurer to pay the claimant's costs on the claim assessed on a party and party basis.
105 Costs where claimant less successful than insurer's final offer or insurer found not liable
(1) If a claimant obtains an order or judgment on a claim that is less favourable to the claimant than the terms of the insurer's final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the claimant to pay the insurer's costs on the claim assessed on a party and party basis.
(2) If a claimant does not obtain an order or judgment on a claim (that is, if the court finds the insurer has no liability for the claim), the court is to order the claimant to pay the insurer's costs on the claim assessed on a party and party basis.
106 Costs in other cases
Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.
107 Deemed offer where insurer denies liability and no mediation
If:
(a) the insurer wholly denies liability, and
(b) the matter is not referred to mediation, and
(c) the claimant obtains an order or judgment on the claim,
costs are to be awarded in accordance with this Subdivision as if:
(d) the insurer had made a final offer of settlement at mediation of $0, and
(e) the claimant had made a final offer of settlement at mediation of the amount of damages specified in the pre-filing statement served under section 315 of the 1998 Act.
...
109 Multiple parties
Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the claimant and rights of contribution or indemnity appear to exist between the defendants, this Subdivision does not apply to an offer of settlement unless:
(a) in the case of an offer made by the claimant-the offer is made to all the defendants and is an offer to settle the claim against all of them, and
(b) in the case of an offer made to the claimant:
(i) the offer is to settle the claim against all the defendants concerned, and
(ii) where the offer is made by 2 or more defendants-by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the claimant for the whole amount of the offer."
In the present case the insurer of Sydney Ports wholly denied liability and the matter did not proceed to mediation. In those circumstances Sydney Ports contended that regs 107(d) and (e) apply and that "the amount of damages specified in the pre-filing statement served under s 315" should be taken as the amount of $1,035,629, being the total of all amounts referred to in the forensic accounting report of Cutcher and Neale dated 23 May 2008 that was attached to the pre-filing statement. Sydney Ports' written submission in this regard should be noted, and was in the following terms:
"Accordingly the 'offer' contained in the pre-filing statement is the total of the amounts claimed in the report of Cutcher and Neale being a total of $1,035,629. That amount exceeds the agreed damages for the claim against the first defendant and accordingly it is submitted that the plaintiff is not entitled to costs".
The deeming provisions of reg 107 do not apply to an offer made in a case involving multiple parties such as the present. In such a case reg 109 applies. That is because that regulation does not in terms refer to deemed offers contemplated by or made in accordance with reg 107(d) and (e) but refers only to "the case of an offer made by the claimant". Furthermore, reg 109 refers to offers "made to all the defendants" being "an offer to settle the claim against all of them". In the present case Mr Collins made no offer at all and certainly not one complying with reg 109(a).
The mediation provisions of the Workplace Injury Management and Workers Compensation Act do not apply to Australian Winch and Haulage. They could not have been a party to a mediation conducted under the Act if one had occurred. Such a mediation would have been in respect of "work injury damages" for which Australian Winch and Haulage could never have been or become liable. So much flows from s 250 of the Act which defines "work injury damages" as follows:
"'work injury damages' means damages recoverable from a worker's employer in respect of:
(a) an injury to the worker caused by the negligence or other tort of the employer, or
(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer."
Regulation 107(e) refers specifically to "a final offer of settlement at mediation". In my view the deeming provisions of reg 107 cannot be imported into reg 109 because Australian Winch and Haulage could never be subjected to the result of an offer at a mediation to which they could never be a party or in respect of work injury damages for which they could never have been liable. It follows therefore that the subdivision containing these regulations does not apply to a case such as this involving "multiple parties". The effect of this in my view is that the regulations do not apply to an assessment of the question of costs in this case.
Mr Collins was successful. There does not appear to be any reason why in such circumstances, in respect of Mr Collins' proceedings against Sydney Ports, costs should not follow the event in accordance with the Uniform Civil Procedure Rules.
(f) Costs as between Mr Collins and Australian Winch and Haulage - indemnity basis
Mr Collins served a document entitled "Offer of Compromise" upon Australian Winch and Haulage under cover of a letter dated 14 April 2011. Australian Winch and Haulage has contended that although the document purports to be an offer of compromise served pursuant to UCPR 20.26, it does not qualify as such because it is expressed to be an offer "plus costs". Australian Winch and Haulage has submitted that the offer therefore fails to comply with UCPR 20.26(2) which is in these terms:
"(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs."
I was referred to Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194 and Dean v Stockland Property Management Pty Ltd (No. 2) [2010] NSWCA 141. More recently in Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079, Davies J considered the meaning and effect of this rule: see [8] - [32] in his Honour's reasons. His Honour reviewed all of the currently relevant authorities, particularly the conflict apparent between and among decisions of single judges in this Court and decisions in the Court of Appeal. It may be that in due course the issue will have to be made the subject of a determinative consideration by that Court.
In the meantime it seems to me that the reasoning of Davies J, and the reasoning of the decisions that he followed, applies to the circumstances of this case. In my opinion, having regard to the apparent intention of the rule, there is no conflict between a requirement that an offer must be made exclusive of costs and an offer that is expressed in terms of a particular sum plus costs. In my view the offer of compromise in this case complies with the rules.
The offer does not otherwise purport in terms or by implication to take effect as a Calderbank offer in the event that it did not operate as an offer of compromise in accordance with the rules. In that respect I consider that what Hoeben J said in Pritchard v Trius Constructions Pty Limited (No. 2) [2011] NSWSC 1114 at [40] - [43] applies with equal force in this case. Although it does not arise in the light of my earlier finding, I would not have been prepared to treat Mr Collins' offer of compromise as an offer to settle in some other way in the absence of a clear indication that the offer was intended to have that effect.
Australian Winch and Haulage did not otherwise contend that Mr Collins would not have become entitled to an order for costs on an indemnity basis if the offer that he made were valid and operative according to its terms. I consider in these circumstances that Mr Collins is entitled to his costs against Australian Winch and Haulage on an ordinary basis up to and including 27 April 2011 and thereafter on an indemnity basis.
(g) Costs as between Australian Winch and Haulage and
Sydney Ports
Australian Winch and Haulage claims costs against Sydney Ports, including the costs that it has been ordered to pay Mr Collins. Australian Winch and Haulage has succeeded on its cross-claim for contribution from Sydney Ports. Written submissions filed by Australian Winch and Haulage on this question describe that contribution as "significant". Even though Sydney Ports recovered an order for contribution of 35 percent from Australian Winch and Haulage on its second amended cross-claim, the claim for recovery must fail as previously discussed.
It is common ground that Sydney Ports' earlier recovery proceedings against Australian Winch and Haulage became consolidated with the second amended cross-claim. Those parties agreed that the costs of the earlier recovery proceedings would become the costs in the cause on the second amended cross-claim. In the events that have occurred, the most obvious result would be orders that Australian Winch and Haulage recovers 65 percent of its costs from Sydney Ports on its cross-claim and that Sydney Ports recovers 35 percent of its costs from Australian Winch and Haulage on its cross-claim.
Australian Winch and Haulage suggested a different result should follow. It submitted that because Sydney Ports failed on what it described as "a significant aspect of its amended second cross-claim, being the recovery aspect", the appropriate costs order should be formulated as follows:
(a) Sydney Ports pays 100 percent of the costs of Australian Winch and Haulage on its cross-claim on the ordinary basis;
(b) Sydney Ports pays and bears its own costs of the proceedings, including the cross-claims;
(c) Sydney Ports pays 65 percent of the costs of Australian Winch and Haulage on Mr Collins' claim on the ordinary basis;
(d) Sydney Ports pays 65 percent of the costs order in favour of Mr Collins against Australian Winch and Haulage.
I disagree. There does not appear to me to be any attractive or principled basis upon which it is possible to dissect the respective liabilities of Australian Winch and Haulage and Sydney Ports as between themselves beyond the finding that their liability for Mr Collins' damages should be apportioned in the fractions I originally indicated. Any restriction upon Sydney Ports' ability to recover from Australian Winch and Haulage is not the result of some extensive or expensive collateral aspect of the litigation conducted only between them as part of the principal litigation conducted by Mr Collins. The limitations upon Sydney Ports' ability to recover anything from Australian Winch and Haulage are a function of the final result in the proceedings rather than the consequence of some remarkable and discrete success at the suit of Australian Winch and Haulage. To a large, although by no means exclusive, extent both parties to the cross-claims were united in their defence of Mr Collins' claim. With the exception of the way in which I have already determined that their respective roles differed in causing Mr Collins' damage, there is no warrant for allocating some separate division of responsibility between them on the question of costs.
I consider that the following costs orders should therefore be made:
(a) Sydney Ports should pay 65 percent of the costs of Australian Winch and Haulage on Mr Collins' claim and on its cross-claim and 65 percent of the costs ordered in favour of Mr Collins against Australian Winch and Haulage.
(b) Australian Winch and Haulage should pay 35 percent of the costs of Sydney Ports on Mr Collins' claim and on its cross-claim and 35 percent of the costs ordered in favour of Mr Collins against Sydney Ports.
(h) Costs recovery - Australian Winch and Haulage from Sydney Ports
I have earlier come to the conclusion that Sydney Ports is liable to Mr Collins for the payment of his costs. In the light of my reasons and orders referred to above in that respect, this issue of recovery of costs no longer arises. Nor is it necessary to consider Australian Winch and Haulage's submissions concerning the proper interpretation and application of the various views expressed in Re Estate of the late M T Mutton [2007] NSWCA 340 at [251] - [263] per Ipp JA (with whom Spigelman CJ agreed) and Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381.
(i) Further orders
I have earlier indicated that I will require the parties to bring in a form of orders giving effect to these reasons, including any orders taking account of s 151Z, when they have had an opportunity to consider them.
Breach of statutory duty - reasons
At [100] and [101] of my original decision I said this:
"[100] Mr Collins alleged that Sydney Ports were in breach of certain specified statutory obligations. Sydney Ports did not contest this. That emerges from a concession made by counsel for Sydney Ports on 20 June 2011 during the course of submissions when I noted the following:
"HIS HONOUR: I have noted that you accept that the statutory provision applies unless I hear from you otherwise."
[101] Mr Collins provided detailed written submissions on the question of breach of statutory duty to which Sydney Ports did not respond."
It remains necessary for me to express my conclusions on this aspect of Mr Collins' original claim for breach of statutory duty against Sydney Ports.
Section 3 of the Construction Safety Act1912, which has been repealed, but which Mr Collins contends and Sydney Ports does not contest was in force at the date of his accident and applied to it, defined building work as follows:
"'Building work' means-
(a) Work in...installing, adding to, altering, repairing, equipping...that-
...
(ii) is done in relation to a vessel on or adjacent to the vessel while it is at a wharf, or on slips..."
"Vessel" is defined to mean "any ship, barge, pontoon or other construction designed to float".
Regulation 73 of the Construction Safety Regulation provided as follows:
"Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of the persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74-
...
(2) provide and maintain safe means of access to every place at which any person has to work at any time."
Although I was not addressed upon the point I take Mr Collins' claim to be both that Sydney Ports is liable to him for breach of a statutory duty owed to him and sounding in damages and also that Sydney Ports' alleged failure to comply with statutory obligations imposed upon it was evidence of a breach of the duty of care it otherwise owed to him as alleged. In the factual circumstances of this case nothing of significance turns on that distinction.
Mr Collins gave evidence that on 23 July 2001 a report was received in relation to a problem with one of the emergency response tugs. There was apparently a defect with its deck lights, which were not turning on. Mr Collins had the responsibility for such a problem. In order to gain access to the tug Mr Collins was required to traverse the gangway. He did so in the course of investigating the fault in order to rectify it or call a contractor to do so. Maintenance of that type would often see Mr Collins accessing the tug as much as six or seven times a shift. As I have already discussed, Mr Collins was in the course of performing this type of work when the gangway failed causing his injuries.
It is not in doubt in my view that Mr Collins was performing building work inasmuch as he was concerned with repairing something in relation to a vessel while it was at the wharf. It is also beyond doubt that Mr Collins was not provided with a safe means of access to the place where he was intending to work. He was in the course of boarding the tug to attend to the repair of the faulty decking lights if he was able to do so.
Sydney Ports failed in breach of the duty that it owed him to provide or maintain a safe means of access to a place at which Mr Collins was required to work.
Conclusion and orders
The parties should bring in short minutes of the orders that they agree give effect to my conclusions, or in the absence of agreement, the orders for which they respectively contend, at some convenient date to be arranged in consultation with my Associate.
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Decision last updated: 01 November 2012
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