Forstaff Blacktown Pty Ltd v Brimac Pty Ltd - [2005] NSWCA 423

NEW SOUTH WALES COURT OF APPEAL

CITATION: Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423

FILE NUMBER(S):
40213/05
40252/05

HEARING DATE(S): 14 November 2005

JUDGMENT DATE: 05/12/2005

PARTIES:
CA 40213/05:
Forstaff Blacktown Pty Limited (Claimant/Appellant)
Brimac Pty Limited (First Opponent/First Respondent)
Paul Lawrence Johnston (Second Opponent/Second Respondent)

CA 40252/05:
Brimac Pty Limited (Appellant)
Paul Lawrence Johnston (First Respondent)
Forstaff Blacktown (Second Respondent)

JUDGMENT OF: Hodgson JA Ipp JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 780/02

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
CA 40213/05:
W P Kearns SC/M L Snell (Forstaff) (Claimant/Appellant)
A M Colefax SC/J Sleight (Brimac) (First Opponent/Respondent)
I G Harrison SC/R N O'Neill (Johnston) (Second Opponent/Respondent)

CA 40252/05:
W P Kearns SC/M L Snell (Forstaff) (Appellant)
A M Colefax SC/J Sleight (Brimac) (First Respondent)
I G Harrison SC/R N O'Neill (Johnston) (Second Respondent)

SOLICITORS:
CA 40213/05:
Goldbergs Lawyers (Forstaff) (Claimant/Appellant)
Hunt & Hunt (Brimac) First Opponent/First Respondent)
McDonnell Schroder (Johnston) (Second Opponent/Second Respondent)

CA 40252/05:
Hunt & Hunt (Brimac) (Appellant)
McDonnell Schroder (Johnston) (First Respondent)
Goldbergs Lawyers (Forstaff) (Second Respondent)

CATCHWORDS:
TORT - negligence - duty of care – experienced worker contracted to third party by labour hire firm – whether breach of duty – Contributory negligence – whether worker’s conduct amounted to a departure from the standard of care of a reasonable man.
CONTRIBUTION - joint or several tortfeasors - third party and employer of injured worker - amendments to Workers Compensation Act 1987 limiting damages recoverable from employer - injury before amendments – worker’s proceedings brought against third party after amendments – third party cross-claims against employer of injured worker seeking to recover contribution – injured worker unable to recover damages against employer - whether contribution pursuant to s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 available - whether s 151Z(2) of Workers Compensation Act precludes contribution (D)

LEGISLATION CITED:
Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Suitors’ Fund Act 1951
Workers Compensation Act 1987
Workers Compensation Commission Rules 2003
Workers Compensation Legislation Further Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1988

DECISION:
The liability appeal and the cross appeal :
(1) Appeal and cross-appeal allowed (2) Notice of cross-appeal to be filed within 7 days (3) Set aside the verdict and judgment entered by Delaney DCJ on 4 March 2005 against the appellant in favour of the respondent (4 )Verdict and judgment for the respondent in the sum of $191,471.54 (5) Respondent to pay 20% of Brimac’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.
The contribution appeal:
(6) Grant leave to appeal (7 )Notice of Appeal to be filed within 7 days (8) Appeal allowed (9) Verdict and judgment on the cross-claim set aside and in lieu thereof verdict and judgment for the appellant on the cross-claim
(10) Respondent to pay the appellant’s costs of the contribution appeal and the appellant’s costs of the cross-claim in the District Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40213/05; 40252/05
DC 780/02
HODGSON JA
IPP JA
McCOLL JA
Monday, 5 December 2005

FORSTAFF BLACKTOWN PTY LTD v BRIMAC PTY LTD & ANOR
BRIMAC PTY LTD v JOHNSTON & ANOR

Paul Lawrence Johnston, an employee of a labour hire company, Forstaff Blacktown Pty Ltd, was injured on 8 November 1999 when working at the premises of Brimac Pty Ltd. Forstaff had provided his services as a labourer and forklift driver to Brimac. Mr Johnston commenced proceedings against Brimac in the District Court on 6 September 2002 claiming damages in respect of his injuries which he alleged were due to Brimac’s negligence. Brimac cross-claimed against Forstaff seeking contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (the “Miscellaneous Provisions Act”). After Mr Johnston was injured, but before he commenced proceedings against Brimac, the Workers Compensation Act was amended by Schedule 1 of the Workers Compensation Legislation Further Amendment Act 2001 (the “2001 amendments”). The effect of those amendments, relevantly, was that an injured worker was not entitled to recover damages at common law against an employer unless his or her injury resulted in a degree of permanent impairment of the injured worker that was at least 15% (s 151H). There was no evidence that Mr Johnston’s injury had resulted in that degree of permanent impairment.

The 2001 amendments commenced on 27 November 2001. Schedule 6, Pt 18C, cl 9, to the Workers Compensation Act provided relevantly that they applied in respect of the recovery of damages after their commencement, even if the injury concerned was received before 27 November 2001, but did not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before they commenced.

Delaney DCJ found Brimac had breached the duty of care it owed Mr Johnston and that Mr Johnston had not been guilty of contributory negligence. He assessed Brimac and Forstaff’s culpability as 80% : 20% respectively and ordered Forstaff to contribute to that extent to Mr Johnston’s damages.

Brimac appealed challenging the primary judge’s decision on breach of duty and contributory negligence (the “liability appeal”).

Forstaff sought leave to appeal from the primary judge’s order that it was obliged to contribute to the extent of 20% of the amount payable by Brimac to Mr Johnston (the “contribution appeal”). In the event that the contribution appeal succeeded, Brimac foreshadowed a cross-appeal in Mr Johnston’s appeal seeking a reduction in the amount it was adjudged liable to pay him by virtue of s 151Z(2)(c) of the Workers Compensation Act.

HELD per McColl JA (Hodgson and Ipp JJA agreeing) allowing the liability appeal, the contribution appeal and the cross-appeal:

On liability

Brimac owed a duty of care to Mr Johnston akin to that owed by an employer.

TNT Australia Pty Limited v Christie [2003] NSWCA 47 applied.

Brimac breached its duty of care to Mr Johnston because it failed to devise a system of work which avoided the risk that he would be injured when seeking to carry out his duties.

Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 applied.

O’Connor v Commissioner of Government Transport [1954] HCA 11; (1954) 100 CLR 225 and Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267; (2002) Aust Torts Reports ¶81–673 distinguished.

On contributory negligence

Mr Johnston was guilty of contributory negligence (assessed as 20%) because his conduct demonstrated a departure from the standard of care of the reasonable man.

Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 applied.

Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 distinguished.

On contribution

The same damages regime had to be adopted to assess damages pursuant to s 151Z(2)(c) and (d) of the Workers Compensation Act. In assessing damages pursuant to s 151Z(2)(d) regard had to be paid to the fact that Mr Johnston’s proceedings were commenced on 6 September 2002 so that the 2001 amendments applied.
Clout Industrial Pty Ltd (In Liquidation) v Baiada Poultry Pty Ltd [2004] NSWCA 89; (2004) 61 NSWLR 111 explained and applied.

As Mr Johnston did not establish that he suffered from a 15% permanent impairment as a result of his injury, he would not have been entitled to recover any damages from Forstaff: s 151H, Workers Compensation Act. As no damages would have been assessed pursuant to s 151Z(2)(d), there were no damages to which Brimac could look for contribution.

ORDERS

The liability appeal and the cross appeal

Appeal and cross-appeal allowed.
Notice of cross-appeal to be filed within 7 days.
Set aside the verdict and judgment entered by Delaney DCJ on 4 March 2005 against the appellant in favour of the respondent.
Verdict and judgment for the respondent in the sum of $191,471.54.
Respondent to pay 20% of Brimac’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

The contribution appeal

Grant leave to appeal.

Notice of Appeal to be filed within 7 days.

Appeal allowed.

Verdict and judgment on the cross-claim set aside and in lieu thereof verdict and judgment for the appellant on the cross-claim.
Respondent to pay the appellant’s costs of the contribution appeal and the appellant’s costs of the cross-claim in the District Court.

**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40213/05; 40252/05
DC 780/02
HODGSON JA
IPP JA
McCOLL JA
Monday, 5 December 2005

FORSTAFF BLACKTOWN PTY LTD v BRIMAC PTY LTD & ANOR
BRIMAC PTY LTD v JOHNSTON & ANOR

Judgment

HODGSON JA: I agree with the orders proposed by McColl JA, and, subject to what I say below, with her reasons.
In my opinion, the requirement in para.(d) of s.151Z(2) of the Workers’ Compensation Act that the amount of the contribution that a person other than the worker’s employer is entitled to recover from the employer “is to be determined as if the whole of the damages were assessed in accordance with the provisions of Division 3 as to the award of damages” must be read in conjunction with pars.(a) and (c) of s.151Z(2), which refer to proceedings that the worker takes or is entitled to take against that person; and par.(d) must thus be understood as referring to a hypothetical assessment of damages in those proceedings. Where, as in this case, those proceedings against that person were taken by the worker after 27 November 2001, par.(d) must be taken as referring to a hypothetical assessment of damages in proceedings taken after 27 November 2001. That view is consistent with Clout Industrial Pty. Ltd. (In Liquidation) v. Biaida Poultry Pty. Ltd. [2004] NSWCA 89, 61 NSWLR 111.
This means that contribution recoverable under par.(d) will be nil if the injury did not result in a degree of permanent impairment of the injured worker that is at least 15%; and if the contribution recoverable under par.(d) is nil, then par.(c) requires that the damages that the worker may recover from the person other than the employer are to be reduced by the whole of the amount of the contribution the person would have been able to recover from the employer but for the effect of par.(d). This gives rise to questions as to who bears the onus of proof.
In a case such as the present, where the contribution proceedings against the employer are heard together with the proceedings brought by the worker against the person other than the employer, it is clear in my opinion that, if it is not proved by someone in the proceedings that the injury resulted in a degree of permanent impairment of 15% or more, the contribution claim will fail under par.(d); and if the person making the contribution claim proves that the employer would otherwise have been liable to contribute a certain percentage, the worker’s damages under par.(c) will (for consistency) have to be reduced by that percentage. Thus, there will as a practical matter be an onus on the worker to prove that the 15% threshold is passed. If the worker does not prove this, the person making the contribution claim may achieve a reduction in damages recoverable by the worker without having to prove that the 15% threshold is not passed, albeit at the expense of liability for the employer’s costs of the contribution proceedings.
However, in my opinion the position concerning onus of proof may be different if the proceedings brought by the worker against the person other than the employer are heard on their own, in the absence of or prior to the hearing of contribution proceedings brought by that person against the employer. It seems to me that that person, as defendant in the proceedings brought by the worker, must have the onus of proving the elements set out in par.(c) in order to obtain any reduction of damages: that is, there will be no reduction of damages as discussed in par.[3] above unless the defendant proves that it would, but for Part 5 of the Workers’ Compensation Act, be entitled to recover an amount from the employer and that the contribution actually recoverable is nil. In those circumstances, it seems to me that the defendant would have to prove that the injury did not result in a degree of permanent impairment of 15%; although I accept that it may be possible to do this by way of inference from the general evidence in the case, where the worker has not sought and failed to obtain the certificate required to establish this degree of impairment. In that respect, I think the position may be different from that supported by McColl JA; although it is not necessary finally to determine that matter in these proceedings.

IPP JA: I agree with McColl JA save that I express no opinion as to the matters concerning onus of proof raised and discussed by Hodgson JA.
McCOLL JA: Paul Lawrence Johnston, an employee of a labour hire company, Forstaff Blacktown Pty Ltd, was injured on 8 November 1999 when working at the premises of Brimac Pty Ltd. Forstaff had provided his services as a labourer and forklift driver to Brimac. Mr Johnston commenced proceedings against Brimac in the District Court on 6 September 2002 claiming damages in respect of his injuries which he alleged were due to Brimac’s negligence. Brimac cross-claimed against Forstaff seeking contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (the “Miscellaneous Provisions Act”).
The proceedings were heard by Delaney DCJ on 22 – 23 September 2004. His Honour delivered judgment on 24 February 2005. He found Brimac had breached the duty of care it owed Mr Johnston and that Mr Johnston had not been guilty of contributory negligence. He assessed Brimac and Forstaff’s culpability as 80%: 20% respectively and ordered Forstaff to contribute to that extent to Mr Johnston’s damages.
There are two matters before the Court. Brimac appeals from the primary judge’s decision challenging his conclusion that it was liable in negligence to Mr Johnston and, too, complaining that his Honour erred in failing to find Mr Johnston guilty of contributory negligence. Its Notice of Appeal also complained about the assessment of damages but that aspect of the appeal was not pursued.
Forstaff seeks leave to appeal from the primary judge’s order that it was obliged to contribute to the extent of 20% of the amount payable by Brimac to Mr Johnston. In the event that Forstaff obtains leave to appeal and is successful in its appeal, Brimac has foreshadowed a cross-appeal in Mr Johnston’s appeal claiming that it is entitled to a reduction of $62,659.35 in the amount it was adjudged liable to pay him by virtue of s 151Z(2)(c) of the Workers Compensation Act 1987.
Statement of the case: the liability appeal
The only oral testimony given in the proceedings was Mr Johnston’s. The primary judge noted that there was no contrary account to his description of his work environment and the circumstances in which he was injured and accepted that evidence. His Honour summarised Mr Johnston’s evidence as follows:
“6.The plaintiff was born on 5 October 1954 and left school at the age of sixteen. He has had some thirty-four years’ experience in the workforce, mostly as a forklift driver and labourer. His services were engaged by [Forstaff] in March 1998. That company carried on the business of personnel hire and he was sent to work at [Brimac’s] premises at Arndell Park on 8 November 1999.
7.The plaintiff was instructed by [Brimac’s] supervisor to clean up the yard at Arndell Park. He used a wire cage and a forklift. The case was about 1.2 metres square with wire mesh on three sides and had a pressed steel floor with legs. These legs would allow forklift tynes to be inserted under the cage. The cage was not, however, a man cage specifically designed to allow persons to enter the cage with stability assured. The rubbish to be collected included building debris and broken pallets.
8.The plaintiff said that the forklift did not have a backing plate to which any cage being carried on its tynes could be secured. He said that [Brimac] did not have available a specific purpose man cage.
9.The plaintiff said that an industrial waste bin was on-site and he was expected to put the rubbish into this bin. The dimensions of the bin were not specifically given in evidence but the bin was described as a typical industrial waste bin to be found in most industrial sites nowadays. The bin was located near a truck loading dock. Trucks were occupying the dock at the time the plaintiff was working.
10.I now turn to the plaintiff’s account of his accident. The plaintiff said that he had picked up rubbish from the yard and placed it in the cage. He then took the cage to the industrial bin. He elevated the forks of the forklift so that both the forks and the edge of the cage rested on the edge of the industrial bin. He then alighted from the forklift and got into the cage (after walking around the edge of the bin) so that he could manually remove the rubbish from the cage into the bin. The cage was balanced on the tynes of the forklift and was also on the edge of the bin. It was not secured to anything. As the plaintiff stood in the cage turning his body to pick up and throw rubbish from the cage into the bin the cage began to move. As soon as the plaintiff realised that this was occurring he jumped from the cage into the bin, but the cage fell into the bin after him and he was thereby injured as the cage struck him.
11.In cross-examination, the plaintiff said the cage could not be fixed to the forklift because there was no backing plate behind the forklift tynes or forks. He also said that [Brimac] did not have available a man cage system which could have been used in substitution for the cage provided.”
The primary judge noted that it was Mr Johnston who decided to clear up the site using the cage.Mr Johnston also said he could not have put the cage onto the loading dock because there were trucks there being loaded and unloaded. He said that he raised the cage to the height of the bin in order to empty it. The primary judge then recorded the following exchange in Mr Johnston’s cross-examination:
“Q.And you knew then that was as I described it, a real no no to get onto the load?
A. Yes.
Q.And it’s a real no-no to get on the load because a person moving on the load can cause it to be unstable?
A.Yes, which is why I had it leaning on the bin to minimise that.”
The primary judge noted that Mr Johnston said he knew the cage could be unstable, that he was not using something described as a man cage and that “any forklift driver would know that moving about in a cage not secured could endanger both the person in the cage and any person driving the forklift”. He agreed that he had not pursued the option of going to his foreman and saying that the bin could not be unloaded until one of the trucks came out of the loading dock.
Mr Johnston also knew the cage was overhanging the tynes of the forklift truck by about 200 millimetres (the judgment records “20 millimetres” but that appears to be an incorrect transcription of the evidence and that the whole cage was on a slope to the horizontal facing backwards – presumably towards the industrial waste bin.
The plaintiff tendered a report from Mr Pearson, an engineer. He expressed the opinion that the manner in which Mr Johnston used the forklift and cage was an unsafe system of work, that the forklift should have had a backing plate and that there should have been a point on the forklift to which the cage could have been secured. The primary judge accepted Mr Pearson’s evidence, noting that Brimac had tendered an expert report which did not relevantly contradict it. There is no challenge to his Honour’s conclusion in this respect.

The primary judge held that Brimac owed a duty of care to Mr Johnston akin to that of an employer having regard to the circumstances in which Mr Johnston had entered the premises and the work he was doing. He found that Brimac should have foreseen that Mr Johnston was exposed to the risk of injury by the use of an untethered cage and a forklift without a backing plate and that Brimac should have adopted the methods Mr Pearson suggested, by way of proper plant, equipment and instruction, to avoid it. He held that Brimac’s failure to do so constituted a breach of the duty of care it owed Mr Johnston.
Before the primary judge both Brimac and Forstaff submitted that if Brimac was found to have breached its duty of care, Mr Johnston should be found guilty of contributory negligence on the basis that he elected to use the cage and the forklift although they were defective. His Honour recorded their submissions that Mr Johnston “should have taken a different option rather than seeking to make the system of work provided to him operate to achieve the task which he had been allotted”.
The primary judge said that while Mr Johnston agreed he knew the system he was being asked to use was not perfect and that there were other options he did not pursue, he did not know how the cage came to move. He concluded, applying Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 310, that Mr Johnston had merely been carrying out Brimac’s system of work using the tools and equipment provided and that while he had misjudged the stability of the cage as it rested on the forklift that was not, in the circumstances, sufficient to amount to contributory negligence.
Statement of the case: the contribution appeal
The primary judge then turned to Brimac’s cross-claim against Forstaff. After observing that Forstaff owed Mr Johnston a non-delegable duty to take reasonable care to avoid exposing him to risk of injury in the workplace, he noted that Forstaff had never attended or inspected Brimac’s site to monitor the way in which Mr Johnston was asked to work or to assess the safety of Brimac’s system of work. He concluded that Forstaff should have undertaken such checking and that the extent of its responsibility for Mr Johnston’s damage assessed in accordance with s 5(2) of the Miscellaneous Provisions Act was 20%.
The primary judge assessed damages against Brimac in accordance with the Civil Liability Act 2002. He concluded that the severity of Mr Johnston’s non-economic loss was 28% of a most extreme case (s 16, Civil Liability Act) which led to an award for non-economic loss of $56,000 having regard to the indexed amount provided in the table to s 16 as at 1 October 2004. It was common ground in this Court that, although he did not say so, the primary judge applied s 151Z(2)(c) of the Workers Compensation Act in assessing the damages Mr Johnston was entitled to recover from Brimac.
The primary judge then assessed damages as against Forstaff. Again, although his Honour did not say so, this exercise was presumably that required by s 151Z(2)(d) of the Workers Compensation Act¸ to assess the whole of the damages in accordance with provisions of Pt 5, Div 3 as part of the determination of any contribution Brimac was entitled to recover from Forstaff. Forstaff argued that because Mr Johnston had not been assessed as having a 15% degree of permanent impairment as a result of his injury (s 151H, Workers Compensation Act), he could not be awarded Workers Compensation Act damages, and, therefore, Brimac could not recover any sum from it even if was entitled to contribution under s 5 (1)(c) of the Miscellaneous Provisions Act. Forstaff contended that, even though Mr Johnston was injured on 8 November 1999 before amendments to the Workers Compensation Act (the “2001 amendments”) effected by Schedule 1 of the Workers Compensation Legislation Further Amendment Act 2001 which established the 15% permanent impairment threshold became effective, the 2001 amendments (which commenced on 27 November 2001) applied to his action because he had brought his proceedings after they commenced.
The primary judge rejected that argument. He considered the case was governed by Clout Industrial Pty Ltd (In Liquidation) v Baiada Poultry Pty Ltd [2004] NSWCA 89; (2004) 61 NSWLR 111 and that, because Mr Johnston’s injury was suffered in November 1999 when he could have sued Forstaff without being restricted by the 2001 amendments, Brimac’s claim for contribution was not restricted by the 2001 amendments.He concluded, for reasons he said were expressed in Clout by Giles JA (at [60] – [64]) and Hodgson JA (at [69] – [73]), that s 151Z(2) of the Workers Compensation Act “had no effect on the entitlement to damages having regard to the date on which the cause of action arose”.
Accordingly, his Honour assessed the damages Mr Johnston would have been entitled to against Forstaff on the basis of the modified common law damages regime in Pt 5 of the Workers Compensation Act in force prior to 27 November 2001. He concluded that, again, Mr Johnston’s non-economic loss should be assessed at 28% of a most extreme case which equated to a verdict of $67,298 for non-economic loss. Because of the amount allowed for non-economic loss Mr Johnston passed the pre-27 November 2001 threshold for economic loss under s 151H of the Workers Compensation Act.
With the exception of the different assessments of non-economic loss against Brimac and Forstaff arising from the different statutory regimes applied, the primary judge allowed the same amounts as against Brimac and Forstaff for past medical expenses, future medical treatment, past economic loss (including Fox v Wood), future economic loss and superannuation. The outcome was that he assessed damages against Brimac at $259,998.76 and against Forstaff at $271,296.76. He adjourned the matter to enable the parties to bring in orders for judgment reflecting his findings and to deal with the question of costs.
Short Minutes of Order were entered on 4 March 2005 recording the following:
“1.Verdict and judgment for the plaintiff in the sum of $301,998.76.
2.[Brimac] to pay the plaintiff’s costs as agreed or assessed, subject to any order made by Delaney DCJ.
3.Verdict and judgment for [Brimac] on the cross-claim. [Forstaff] to contribute 20% of Workers Compensation damages (assessed at $313,296.76), viz $62,659.35 and 20% of the plaintiff’s costs and disbursements.
4.[Forstaff] to pay [Brimac’s] costs of the cross-claim as agreed or assessed.
Noted:
5.That the judgment against [Forstaff] has been satisfied by payments of Workers Compensation benefits to the plaintiff in the sum of $74,891.32.
6. That [Brimac] pay to [Forstaff] the sum of $12,231.97.”
Paragraphs 5 and 6 reflected the adjustment required because the compensation Forstaff had paid Mr Johnston exceeded the contribution Brimac could recover from it: s 151Z(2)(e), s 151Z(1)(d).
The liability appeal: submissions
Mr A Colefax SC, who appeared on appeal for Brimac with Mr J Sleight, but not at trial, advanced two primary submissions. First, that Mr Johnston was an independent contractor and that Brimac did not owe him a duty of care to ensure his safety. Secondly, if Brimac was to be regarded as Mr Johnston’s employer, it had not breached any duty of care it owed him having regard to his skill and experience. He acknowledged that the independent contractor argument was not his best point. The liability appeal proceeded on the basis that it was the second point which was pursued.
Mr Colefax drew attention to Mr Johnston’s evidence that the cage should have been secured or tied to the forklift but was not because the safety frame or apron (referred to by the primary judge as the backing plate) had been removed. Mr Johnston gave evidence that there was a frame “there somewhere” and that he didn’t “really know” why he had not obtained it and put it on the forklift before he tried to empty the rubbish on this occasion. Later in cross-examination, Mr Johnston agreed that although he knew that the safety frame was at Brimac’s premises he had not asked for it to be put on his forklift.

Brimac also relied upon the following passages in Mr Johnston’s cross-examination:
”Q.See you knew, didn’t you, that, to put it colloquially, it’s a real no no to get on a load on a forklift?
A.           When it is raised, yes it is.
Q.Well sir this load – this cage at the time was raised to the height of the bin wasn’t it?
A.           Yes.
Q.           So it was a raised load?
A.           Yes.
QAnd you knew then that was, as I described it, a real no no to get on the load?
A.           Yes.
Q.And it’s a real no no to get on the load because a person moving on the load can cause it to be unstable?
A.Yes, which is why I had it leaning on the bin to minimise that.
Q.Well sir, you agree with me that you knew that a person on the load would make it unstable – could make it unstable?
A.           Could make it unstable, yes.
Q.And that is why it’s accepted practice that no forklift truck driver would allow any person to get on a road load?
A.           Other than in a man up cage
Q.           Yes?
A.           Or a cage that’s secured.
Q.           But you knew that this wasn’t a man up cage didn’t you?
A.           Yes.
Q.And the reason you don’t get on it is because moving on a load can make it unstable?
A.           Yes.
Q.And that’s something that you would expect any forklift truck driver to know, wouldn’t you?
A.           Yes.
Q.If someone got on your load you would be the first to tell them to get off, wouldn’t you?
A.           Yes.
Q.It endangers both that person and the driver of the forklift truck?
A.           Correct.
Q.So there was a – you agree that you could have put this down by the side of the bin and loaded it off by hand, but that would have taken longer, wouldn’t it?
A.           Yes, and it was awkward as well.
Q.Now the other option was to put it on the dock but as you say the trucks were obscuring that?
A.           Yes.
Q.           Sorry, obstructing that dock?
A.           Yeah.
Q.If you just assume for a moment that you would have put it on that dock, you could have then unloaded it over the waist high railing into the bin could you not?
A.           Yes.
Q.           So that was an option if the trucks weren’t were?
A.           If the trucks weren’t there, yes.
Q.           And the trucks move out occasionally?
A.           Yes they do.
Q.And if you were concerned – withdrawn – there was nothing to prevent you going to your foreman, was there, and say can this bin just wait until a truck comes out and then I can put it on the loading dock – sorry – can this cage just wait till a truck comes out and then I can put it on the loading dock?
A.           That was also an option.
Q.           But it was an option that you did not pursue, is that correct?
A.           No, I didn’t pursue it.”
Later, Mr Johnston agreed that he did not expect to be told every time he went to work that nobody should be on the load itself.
Mr Colefax submitted that the nub of the primary judge’s negligence finding was that Brimac had breached its duty of care because it failed to inform Mr Johnston that the manner in which he was carrying out his work was dangerous. He submitted that Mr Johnston knew of the danger, that he was a skilled employee and should be treated as “the author of his own misfortune”. He relied upon O’Connor v Commissioner of Government Transport [1954] HCA 11; (1954) 100 CLR 225 and Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267; (2002) Aust Torts Reports ¶81–673 at [50] ff per Heydon JA (with whom Ipp JA agreed).
Mr Colefax submitted that if Brimac’s challenge to the primary judge’s conclusion that it had breached its duty of care failed, the primary judge ought to have found Mr Johnston guilty of contributory negligence to a significant degree. He argued that the accident had not occurred as a result of a momentary aberration but as a result of a deliberate and persistent course of conduct on Mr Johnston’s part. He contended that the accident occurred on the second or third occasion Mr Johnston had chosen to undertake the cleaning up exercise with full knowledge of the dangers.
Mr I Harrison SC, who appeared with Mr R O’Neill for Mr Johnston, but not at trial, resisted the liability appeal on the basis that while Mr Johnston was an experienced forklift driver, he was not relevantly experienced or skilled in the task Brimac required him to carry out on the day in question. He distinguished O’Connor v Commissioner of Government Transport and Kolodziejczyk v Grandview Pty Limited on the basis that Mr Johnston had been asked to devise a system to carry out the cleaning up work. He submitted that Mr Johnston’s skills did not lie in that area. He contended that Brimac had failed to create a safe system of work and relied, in particular, on the submission that, having regard to Mr Johnston’s lack of expertise in the relevant area, Brimac had breached its duty of care in failing to instruct him how to undertake the task at hand.
Mr Harrison also submitted that the primary judge was correct to conclude that Mr Johnston had not been guilty of contributory negligence. He submitted that short of doing no work at all, there was nothing Mr Johnston could have done to avoid the accident. In essence he argued that the accident had occurred because as Mr Johnston emptied the cage and it became increasingly lighter, the effect of him walking in and out of it from the loading dock, combined with the smooth texture of the forklift tynes and the fact that they had a slight downhill grade meant the cage tipped slightly and started to slide. Mr Harrison contended that Mr Johnston could not reasonably have foreseen this scenario.
The liability appeal: consideration
Brimac’s effective concession that the primary judge correctly concluded that it owed a duty to take reasonable care to avoid the risk of injury to Mr Johnston akin to that of an employer was, in my view, properly made. The evidence revealed that Mr Johnston had been working for Brimac for several weeks prior to the accident. He was working there five days a week and received his instructions on a daily basis from a leading hand employed by Brimac. He wore safety clothing supplied by Brimac and used its equipment. It is apparent, in such circumstances, that Brimac treated Mr Johnston as its worker: see TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [41].
In such circumstances, Brimac’s duty was clear. It owed a non-delegable duty to take reasonable care to avoid exposing Mr Johnston to unnecessary risks of injury. If there was a real risk of injury to him in the performance of his work, it was obliged to take reasonable care to avoid the risk by devising a method of operation for the performance of the task which eliminated it or provide adequate safeguards. It was required to take into account the possibility of thoughtlessness, inadvertence or carelessness: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12].
O’Connor v Commissioner of Government Transport does not assist Brimac. In that case an experienced plumber employed by the defendant fell through an awning which was affected by dry rot. While acknowledging the duty the defendant owed the plumber as his employer, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ observed (at 229 – 230) that the equipment with which the plumber had been provided was not wanting, that the plumber was experienced and that the question whether the awning would bear his weight was an obvious one. The deceased had been sent to the job in question (which was to reduce the length of an awning) with a party of workmen who included carpenters and several others. The High Court observed that that party was as “expert” or competent to judge of “that simple subject [whether the awning would bear the deceased’s weight] as anybody that could reasonably be sent”. It also expressed the view that the presence of the dry rot, which caused the awning to fail under the deceased’s weight, was as easily ascertainable by him as “by anybody however skilled”. Having observed that there were means at hand which could have enabled the deceased to undertake the work without climbing onto the awning, the High Court said:
“It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”
Heydon JA applied O’Connor in Kolodziejczyk v Grandview Pty Limited. In that case the plaintiff was injured when he fell from an unsecured ladder leaning against a house on which he was installing roof cladding. He had been engaged by the defendant as a sub-contractor to undertake that task. He frequently worked for the defendant in that capacity. The trial judge held that the defendant owed no duty of care to the plaintiff, a decision which was affirmed on appeal by majority (Heydon JA and Ipp AJA; Davies AJA dissenting). Heydon JA (with whom Ipp AJA agreed) also concluded (at [32]) that even if the defendant had owed the plaintiff a duty of care, it had not breached it by not providing an elevated platform or moveable scaffolding fixed to the roof timbers to enable the plaintiff to carry out his work.
It is pertinent to note that the question whether the defendant had been guilty of a breach of its assumed duty of care arose in circumstances where it was acknowledged that the plaintiff was an independent contractor who, with his partner, provided and used his own ladders and tools as necessary to do the roof cladding work. The partners determined the manner in which they did their work when contracted by the defendant. In the course of their work they daily positioned and frequently ascended and descended ladders. They were not subject to any instruction by anybody on behalf of the defendant as to how or when they carried out their work (see [4]). In addition, as Heydon JA observed (see [49]), the plaintiff had thirteen years’ experience in the work in which he was engaged when injured.
In such circumstances Heydon JA, after referring to O’Connor v Commissioner of Government Transport (at 229 – 230), concluded (at [52]) that where there was a danger which was apparent to the plaintiff, indeed one about which he had apparently spoken to the defendant, and having regard to his experience and the simplicity of the measures to be adopted to achieve safety, the defendant had not breached its assumed duty of care. He concluded that the “defendant was entitled to trust the plaintiff to make appropriate provision for his own safety”.
In my view O’Connor or Kolodziejczyk do not determine the outcome of this case. Mr Johnston had been working at Brimac for two or three weeks before the accident happened. Throughout that period, he had driven a diesel forklift supplied by Brimac which had never had a frame. The safety frame had been removed by Brimac to enable the mast of the forklift to go higher when it was being used inside containers. Although Mr Johnston was an experienced forklift driver, the task he was asked to undertake was not one which fell within that expertise. Rather he was instructed to carry out the task of cleaning up Brimac’s premises but given no instructions about how to do so. True he devised the method used to undertake that task. It was a method he had used on a previous occasion and one of which Brimac either knew, or ought to have been aware.

There was some, albeit desultory, evidence that Brimac ought to have been aware of the system he had devised. Mr Johnston gave evidence that he carried out his work in the area of the despatch manager’s office, that he could see the despatch manager and, it might be inferred therefore that the despatch manager could see him. However a finding that Brimac breached its duty of care does not depend upon it having actual knowledge of the method Mr Johnston had devised. It is sufficient that, having regard to the duty of care it owed him, Brimac ought to have known what Mr Johnston was doing.
Unlike O’Connor and Kolodziejczyk, this was a case where the equipment Brimac supplied to Mr Johnston was wanting – the backing plate to which any cage being carried on its tynes could be secured had been removed prior to it being provided to him at the outset of his work at Brimac’s premises. It was reasonably foreseeable that Mr Johnston might be injured when seeking to unload the contents of the untethered cage into the industrial waste bin. Brimac ought to have devised a system of work which avoided that risk.
The fact that the backing plate may have been available somewhere in Brimac’s premises does not detract from the conclusion that it breached its duty of care. Rather, it underscores that proposition. It was incumbent upon Brimac, in my view, to instruct Mr Johnston to attach the backing plate to the forklift if he proposed to carry out the work in circumstances where the cage would not otherwise be securely attached to the forklift. This was a simple step to ensure that Brimac discharged its obligation to provide Mr Johnston with suitable plant and equipment to enable him to carry out his work safely: see Czatyrko v Edith Cowan University (at [16]).
In my view Brimac’s challenge to the primary judge’s conclusion that it had breached its duty of care to Mr Johnston should fail.
I accept, however, the appellant’s submission that the primary judge erred in conclusion that Mr Johnston was not guilty of contributory negligence. This was not, in my view, a case of simple misjudgment as Mr Harrison submitted. Mr Johnston was aware that it was a “real no-no” to get onto the load in the cage because of the risk of destabilising it. He was also aware that the backing frame was available, somewhere on Brimac’s premises, which he could have used to secure the cage to the forklift. This was not a case of “inattention borne of familiarity and repetition”: cf Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 568. While it is relevant to take into consideration the fact that Brimac had failed to discharged its obligation to take reasonable care, it is nevertheless necessary when considering the issue of contributory negligence, to determine whether, and if so to what extent, Mr Johnston’s conduct demonstrated a departure from the standard of care of the reasonable man: Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 at 493 – 494 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
In my view Mr Johnston’s failure to obtain the backing frame and his failure to secure the cage to the forklift in circumstances where he was aware that it would be balanced on the industrial waste bin while he walked in and out of it removing the load amounted to a departure from the standard of care of the reasonable man. I would assess him to have been guilty of contributory negligence to the extent of 20%.
The contribution appeal
Forstaff’s application for leave to appeal concerns the method of assessing damages against an employer on a claim for contribution pursuant to s 5(1)(c) of the Miscellaneous Provisions Act in circumstances where the date of the accident pre-dates the 2001 amendments to the Workers Compensation Act, but the plaintiff’s proceedings were commenced after they took effect on 27 November 2001. This is an important issue. The Court’s attention has also been drawn to two decisions in the District Court, Pender v Simplot Australia Pty Ltd, Finnane DCJ, 12 February 2004 and Hicks v Richardson Pacific Ltd, Nielson DCJ, 28 April 2004 (neither of which was apparently drawn to the primary judge’s attention) in which their Honours adopted the approach for which Forstaff contends. It is important that this Court clarify the position. Accordingly, in my view, leave to appeal should be granted.
The issues foreshadowed in Forstaff’s draft Notice of Appeal filed in support of its application for leave are:
“1.The primary judge erred in failing to apply the transitional provisions in Schedule 6, Part 18C, Clause 9 of the Workers Compensation Act 1987 (as amended) in assessing Forstaff’s liability if sued.
2.The primary judge erred in assessing Forstaff’s liability on the basis that the amendments to the Workers Compensation Act contained in the Workers Compensation Legislation Further Amendment Act 2001 did not have application.
3.His Honour erred in failing to apply sections 151G and 151H as amended by the Workers Compensation Legislation Further Amendment Act 2001 in assessing Forstaff’s liability.
4.The primary judge erred in ordering contribution by Forstaff as a joint tortfeasor other than as if the whole of the damages were assessed in accordance with the provisions of Division 3 of the Workers Compensation Act 1987 (as amended), contrary to section 151Z(2)(d) of that Act.
5.The primary judge erred in failing to make a finding as to whether the Plaintiff had a degree of impairment of at least fifteen percent resulting from injury, when such finding would have been a pre-requisite for the awarding of damages against Forstaff.
6.The primary judge erred in finding Forstaff liable to contribute on the Cross Claim a sum which exceeded that for which Forstaff would have been liable if sued by the Plaintiff direct.”
Mr Kearns SC who appeared on appeal for Forstaff with Mr M Snell, but not at trial, argued that on the proper application of Clout, the primary judge ought to have held it could not be ordered to contribute to the sum Brimac was obliged to pay Mr Johnston. Forstaff submitted that if his Honour had applied the 2001 amendments, the cross-claim would have failed because there was no evidence that Mr Johnston had suffered from a permanent impairment of 15% and, indeed, that the only evidence concerning his impairment was of a lesser figure.
Forstaff submitted that, having regard to the fact that Mr Johnston had commenced his proceedings against Brimac on 6 September 2002, the primary judge had failed to give effect to the clear intention of Schedule 6, Pt 18C, cl 9 to the Workers Compensation Act that the 2001 amendments should apply to proceedings for the recovery of damages taken after the amendments commenced operation on 27 November 2001.
Brimac submitted that the primary judge was correct in applying Clout and that the fact that Mr Johnston’s proceedings were commenced in September 2002 was irrelevant. Brimac submitted, in essence, that Clout turned upon the proposition that a party’s entitlement to contribution was to be determined by reference to when the cause of action accrued rather than by reference to when the proceedings were commenced. As Mr Johnston’s cause of action accrued prior to the 2001 amendment s commencing, they did not apply.
Mr Johnston also submitted that the primary judge had correctly applied Clout.
Legislative context
At the time of Mr Johnston’s accident, Pt 5, Division 3 of the Workers Compensation Act (“Modified common law damages”) governed a worker’s right to recover damages from an employer at common law. It is unnecessary to elaborate extensively on the provisions then in place. Suffice it to say a worker was entitled to recover damages for non-economic loss which was to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded (s 151G(2) as well as for economic loss, subject to ss 151G (3) - (5).
The modified common law damages regime contained in Pt 5 did not affect the assessment of common law damages against anyone but a plaintiff's employer: Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544 at 547 per Beazley JA (with whom Handley JA and Cole JA agreed).
However s 151Z of the Workers Compensation Act relevantly provided:
“151Z Recovery against both employer and stranger
(1) …
(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:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages; …”
As I have said, on 27 November 2001 Schedule 1 of the Workers Compensation Legislation Further Amendment Act 2001 took effect. It amended, inter alia, Pt 5 of the Workers Compensation Act in a manner which, as Sheller JA said in Clout (at [3]) “severely curtailed the capacity of an employee to obtain damages from an employer but left untouched the capacity of the worker to obtain damages from a non-employer…”.
Section 151G, as amended, provided that an injured worker may only be awarded damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity.
Section 151H (1), as amended, provided that no damages may be awarded, relevantly, unless the injury resulted in a degree of permanent impairment of the injured worker that is at least 15%. Subsections 151H (2) and (3) dealt with the differential assessment of physical and psychological injury in determining whether the 15% threshold had been met. Subsection 151H(4) provided that the degree of permanent impairment that resulted from an injury was to be assessed as provided by s 151H and Pt 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the “WIM Act”).
Schedule 6 (“Savings, transitional and other provisions”) Pt 18C (“Provisions consequent on enactment of 2001 amending Acts”), cl 9 (“Amendments relating to common law damages”) to the Workers Compensation Act provided, so far as is relevant:
“(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment.”
Section 151Z was not altered by the 2001 amendments.
Consideration
In Clout Industrial Pty Ltd (In Liquidation) v Baiada Poultry Pty Ltd Mr Raj, an employee of Clout, a labour hire company, who had been injured in March 2000, brought proceedings in August 2001 claiming damages against Baiada, the owner of the premises where he had been injured and to whom his labour had been hired. In February 2003 Baiada brought a cross-claim against Clout pursuant to s 5(1)(c) of the Miscellaneous Provisions Act. Mr Raj’s claim against Baiada was settled by consent and without admission of liability on 10 September 2003 with a verdict and judgment in his favour for $380,000 inclusive of costs and workers compensation payments made. At the time Mr Raj obtained his judgment, any cause of action he had against Clout was statute barred.
After Mr Raj’s proceedings were settled, the primary judge heard Baiada’s cross-claim. Clout argued it was not liable to pay any contribution to Baiada, relying on the application of the 2001 amendments to s 5(1)(c) of the Miscellaneous Provisions Act and s 151Z of the Workers Compensation Act 1987. The primary judge rejected that contention. This Court affirmed that decision.
It was common ground that:
(a)Mr Raj would be unable to demonstrate a degree of permanent impairment of at least 15% impairment as required by the post-2001 amendments to s 151H: see Clout (at [7]);
(b)Clout was a tortfeasor who would, if sued between 7 March 2000 and 27 November 2001, have been liable in respect of the damage for which Baiada was liable to Mr Raj: see Clout (at [15]);
(c)if Mr Raj had sued Clout after the 2001 amendments came into effect on 27 November 2001, he would have failed: see Clout (at [15]).
Clout advanced two principal arguments. The first was put in two ways both of which depended on the proposition that Baiada’s right to contribution under s 5 (1)(c) “crystallised” only when Mr Raj obtained judgment against Baiada. Clout argued that it was only then that it could be sued by Mr Raj because only then was there anything to which it could be required to contribute. Clout submitted accordingly that it was not a tortfeasor who would if sued have been liable as required by s 5 (1)(c) either because the cause of action against it was statute barred (see Clout at [55]) or because, assuming it could be sued at that time, the effect of the 2001 amendments was that Mr Raj could recover nothing (see Clout at [16] – [20]).
Sheller JA (with whose reasons Hodgson JA generally agreed) said (at [13]) that the effect of Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213 was that a tortfeasor, whose liability in respect of damage to an injured party has been ascertained, may recover contribution from any other tortfeasor liable in respect of the same damage, if, after the injured party’s cause of action accrued, there was a time when the other tortfeasor, if it had been sued, would have been liable to the injured party. The tortfeasor’s claim for contribution was a cause of action which was independent of the cause of action the injured party had or would have had against the tortfeasor from whom contribution was sought. Accordingly Sheller JA held (at [16]) that as there was a time when Clout, if it had been sued prior to 27 November 2001 would have been liable to Mr Raj, Baiada was entitled to seek contribution from it pursuant to s 5 (1)(c).
Sheller JA also rejected (at [20]) Clout’s argument that, because its primary liability after the 2001 amendments was nil, the amount for which Clout was liable to contribute to Baiada could be no higher. In his Honour’s view, that submission ignored what was said in Brambles to the effect that there was no need to import into s 5(1)(c) any temporal element and the requirement to read “if sued” in s 5(1)(c) as “if sued at any time”. He observed that if Mr Raj had begun proceedings against Clout before 27 November 2001 he could have recovered damages against Clout.
Giles JA also rejected Clout’s first argument, saying (at [55]) that “[o]n the authority of Brambles Constructions Pty Ltd v Helmers, it was sufficient that Mr Raj could have sued Clout at any time [and] that it did not matter that his cause of action had become statute barred”. His Honour also held (at [56] – [58]) that it did not matter that different damages regimes prevailed depending upon whether it was assumed Mr Raj could have brought proceedings against Clout before or after 27 November 2001 as s 5(1)(c) did not make the damages recoverable from the other tortfeasor a criterion of contribution.
Forstaff accepts that the determination of the first argument in Clout applies in this case, so that it is irrelevant that by the time Delaney DCJ delivered his judgment, any action in tort Mr Johnston may have had against it was statute-barred or that, on its argument, Mr Johnston could not have recovered any damages from it if such damages were calculated in accordance with Pt 5, Div 3. Forstaff argues, however, Brimac’s claim for contribution ought to have failed having regard to the manner in which the Court resolved the second argument in Clout. I turn then to the second argument in Clout.
Clout’s second argument was that s 151Z(2)(d) operated “ ‘at the moment that the court deliberates on the question of contribution’, when the 2001 damages regime was in force, so that no damages were recoverable by Mr Raj from Clout and Baiada was therefore not entitled to recover contribution from Clout”: see Clout (at [59]).
In order to deal with Clout’s second argument, Sheller JA explained how s 151Z(2) operated. He first considered whether the section applied, depending, as it did in part, upon the proposition that Mr Raj had taken, or was entitled to take, proceedings independently of the Workers Compensation Act to recover damages from Clout: s 151Z(2)(b). He held (at [24]) that Mr Raj should, for the purposes of the subsection, be treated as entitled to take proceedings independently of the Workers Compensation Act to recover damages from Clout even though he had not complied with the procedural requirements necessary before he could commence such proceedings. He applied Leonard v Smith (1992) 27 NSWLR 5 (at 10 - 11) in which Allen J held, consistently with Brambles Constructions Pty Ltd v Helmers, that the phrase “is entitled to take” in s 151Z(2)(a) and (b) denoted an worker who by his conduct satisfied any condition precedent to being entitled to sue his employer and who sued at the appropriate time in an appropriate court and that there was no temporal connotation linking his entitlement to take proceedings against his employer with the time at which he commenced proceedings against the other tortfeasor. He also applied Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 (Grljak no 1) (at 88) where Mahoney JA (with whom Kirby P and Priestley JA agreed) held that the phrase “is entitled to take” in s 151Z(2)(b) looked to the existence of a cause of action rather than to whether the enforcement of the cause of action would result in an award of damages.
Giles JA also held (at [50]) that Mr Raj was entitled to bring proceedings against Clout even if, because he could not meet the Pt 5, Div 3 threshold, he would obtain no damages or (at [52]) even if his action was statute barred. His Honour preferred, however, not to express a concluded view on the significance of Mr Raj’s failure to comply with procedural requirements (such as the notice requirement under s 151C of the Workers Compensation Act) as the non-compliance was not specified and the entitlement not argued (at [53]) although he tentatively opined (at [52]) that even in a case of procedural non-compliance, Mr Raj had “an inchoate future entitlement”. Hodgson JA said (at [72]) that although Mr Raj had not complied with procedural requirements necessary before he could commence proceedings against his employer, it was sufficient that a worker was “entitled”, within s 151Z(2)(b), to take proceedings independently of the Workers Compensation Act to recover damages from the employer if the worker had a cause of action independently of the Act against the employer, referring to Leonard v Smith, Grljak v Trivan Pty Ltd (Court of Appeal, unreported, 19 April 1996, BC9601317) (Grljak No 2) and State of NSW v Kennelly (No 2) [2001] NSWCA 472.
Forstaff did not raise any issue of procedural non-compliance on Mr Johnston’s part.
Sheller JA considered the operation of s 151Z(2)(c) and (d) as explained in Leonard v Smith, Grljak No 2 and State of New South Wales v Kennelly (No 2). Those cases demonstrated that:
(a)Section 151Z(2)(c) provides for a reduction in the damages the plaintiff worker may recover from a tortfeasor (the non-employer) other than the employer tortfeasor in the proceedings which the plaintiff worker has taken for damages against the non-employer: Grljak no 1 (at 88); Clout (at [29]); the worker’s entitlement to recover from the employer either directly or indirectly is to be no greater than if the worker had sued the employer alone, but the net burden on the non-employer is not to be increased; Grljak no 2 (BC9601317 at 7); Clout (at [29], [38]);
(b)The figure used in s 151Z(2)(c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer would (but for Pt 5) be entitled to recover from the employer as a co-tortfeasor or otherwise at common law; (ii) deciding what is “the amount of the contribution recoverable” within s151Z(2)(c) and s 151Z(2)(d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker’s common law damages from the non-employer tortfeasor are to be reduced: Grljak No 1 (at 88 – 89) Clout (at [29] – [31]);
(c)Where step (b)(ii) leads to the conclusion that the employer would have been liable to pay no damages if the plaintiff worker’s damages were calculated under Pt 5, Div 3, the whole of the figure derived after step (i) is deducted from the plaintiff worker’s damages: Grljak no 1 (at 89); Grljak no 2 (BC9601317 at 7) Clout (at [34]);
(d)Section 151Z(2)(d) is directed to determining the financial burden to be borne by the employer tortfeasor by way of contribution for that person’s share of the responsibility for the accident having happened: Leonard v Smith (at 11); it provides the basis for calculation of the contribution which the non-employer tortfeasor may recover against the employer tortfeasor; it is a substantive provision limiting what otherwise would be a non-employer tortfeasor’s right under the Miscellaneous ProvisionsAct to recover contribution from the employer tortfeasor: Grljak No 1 (at 90 – 91) Clout (at [25], [31]);
(e)Section 151Z(2)(d) ensures that in assessing contribution as between the non-employer tortfeasor and the employer tortfeasor, the financial burden upon the employer tortfeasor is calculated as the employer tortfeasor’s fault proportion applied to the damages the employer would have had to pay the plaintiff worker if sued alone – not that fault proportion applied to the damages for which the non-employer tortfeasor is liable to the plaintiff worker: Leonard v Smith (at 11) Clout (at [23]);
(f)If, in undertaking the s 151Z(2)(d) hypothetical exercise, no damages calculated in accordance with Pt 5, Div 3 would be recoverable by the plaintiff worker, then in determining the contribution the non-employer tortfeasor can recover from the employer tortfeasor, it is to be assumed that the damages payable by the non-employer tortfeasor are reduced to nil. Accordingly, the non-employer tortfeasor would not recover any sum by way of contribution from the employer tortfeasor: Grljak No 1 (at 89, 91); Clout (at [32]).

As is apparent the figure derived from the s 151Z(2)(d) calculation performs two functions: it identifies the contribution recoverable for the purposes of the s 151Z(2)(c) reduction exercise as well as determining the damages to which the non-employer tortfeasor can look when seeking contribution pursuant to s 5(1)(c).
Clout’s argument that s 151Z(2)(d) quantified the contribution recoverable under s 5(1)(c) of the Miscellaneous Provisions Act at the time the court was determining the amount of the contribution was rejected. The Court held that the damages regime by which damages recoverable by a worker against that person's employer are assessed pursuant to s 151Z(2)(d) is the same regime adopted to assess damages recoverable by the worker against a non-employer tortfeasor pursuant to s 151Z(2)(c). It reached that conclusion by the following route:
(a)Section 151Z(2)(d) is a substantive provision which limits what otherwise would be a non-employer tortfeasor’s right under the Miscellaneous ProvisionsAct to recover contribution from the employer tortfeasor: Sheller JA at [25], [31]; it proceeds on the assumption that s 5 (1)(c) of the Miscellaneous Provisions Act is applicable, and operates to modify its application in a limited way: Hodgson JA at [73];
(b)The s 151Z(2) scheme requires that the same provisions of Pt 5, Div 3 govern the calculations made under s 151Z(2)(c) and (d): Sheller JA at [38]; Giles JA at [62], [63]; Hodgson JA [73];
(c)Baiada’s right to contribution came from s 5(1)(c) of the Miscellaneous Provisions Act, however in determining the damages regime which applied to the s 151Z(2)(d) calculation, regard was had to when Mr Raj commenced his proceedings against it; because he had sued before the 2001 amendments commenced, they did not apply to determine the “contribution recoverable” under either s 151Z(2)(c) or s 151Z(2)(d): Sheller JA [37]; Giles JA [64];
(d)That construction achieved the presumed legislative intention that the s 151Z scheme operate equitably: Sheller JA at [38]; the outcome for which Clout contended (to determine the deduction from the damages recoverable by Mr Raj from Baiada on the basis that the 2001 amendments did not apply (s 151Z(2)(c)) but determine the contribution recoverable by Baiada from Clout (s 151Z(2)(d)) on the basis that the 2001 amendments did apply) would “distort the calculation to the significant disadvantage of Baiada” and not achieve the objects of the scheme: Sheller JA at [38]; would be incongruous: Giles JA at [62].
Underlying the reasoning in Clout is the premise that because the hypothetical s 151Z(2)(d) exercise requires assessment in accordance with Pt 5, Div 3, the Court should apply the provisions of that Part 5 which would apply if the plaintiff worker had taken proceedings against the employer at the time the proceedings were commenced against the non-employer. As Mr Raj’s proceedings were commenced before 27 November 2001 and were immunised from the operation of the 2001 amendments by cl 9, Pt 18C of Schedule 6, the s 151Z(2)(d) assessment was to be undertaken in accordance with the pre-amendment Pt 5, Div 3.
Conclusion
The reasoning in Clout means that in assessing damages pursuant to s 151Z(2)(d) in Mr Johnston’s proceedings, regard must be had to the fact that they were commenced on 6 September 2002 so that, in contrast to Clout, the 2001 amendments applied. Consistently with Clout, the same damages regime had to be adopted to assess the damages recoverable pursuant to both pars (c) and (d). That regime was the post 27 November 2001 regime. An assessment pursuant to that regime would only have resulted in a notional award of damages if Mr Johnston had suffered a 15% permanent impairment as a result of his injury.
As I have earlier noted Forstaff’s submissions before the primary judge concerning Clout turned, in part, upon the proposition that Mr Johnston had not been assessed as having a 15% degree of permanent impairment an assertion his Honour appears to have accepted.
In its written outline in support of its Summons for Leave to Appeal, Forstaff noted that the only evidence as to the degree of Mr Johnston’s impairment was that it was less than 15%. This was a reference to a report from Dr Bodel, an orthopaedic surgeon qualified by Brimac, who concluded that Mr Johnston was suffering from a 3% impairment of his hand which amounted to a 2% whole person impairment according to Tables 16–1, 16–2 and 16–3 of AMA 5 (pp 438 – 439). WorkCover’s Guides for the evaluation of Permanent Impairment issued pursuant to s 376 of the Workers Compensation Act are substantially based on AMA5.
Neither Brimac or Mr Johnston’s responses to Forstaff’s written outline challenged the proposition that the primary judge had been entitled to consider Forstaff’s contribution argument on the basis that Mr Johnston had not been assessed as having the degree of permanent impairment required under the 2001 amendments to s 151H to attract an award of economic loss.
During the hearing of the appeal, however, the question was raised as to which of the parties before the primary judge had borne the onus of proof of the Pt 5 Div 3 damages. Mr Kearns submitted it was the plaintiff as he was seeking to recover damages. Mr Colefax submitted that where the third party and the employer were both parties to the injured worker’s proceedings the plaintiff bore the onus. Mr Harrison submitted the plaintiff did not bear any onus in that regard.
Section 151Z(2)(d) is silent as to who bears the onus of proving what the plaintiff worker’s damages would be if assessed under Pt 5, Div 3 of the Workers Compensation Act. Several matters persuade me that, in circumstances such as have arisen in this case, that burden of proof in that respect is borne by the plaintiff worker.
The first matter is that, as was said by Glass JA (with whom Moffitt P and Hutley JA agreed) in Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 at 238, the “true (or legal) burden of proof, in relation to all questions of fact pertinent to the issue of damages, rests on the plaintiff”. His Honour added that “[w]here a disputed question comes under the heading of damages the plaintiff will normally bear both [the legal and the evidentiary burden]”.
The legislature has addressed an issue of onus elsewhere in Pt 5. Section s 151L(3) places the onus of proving that all reasonable steps to mitigate damages have been taken on the plaintiff worker, subject to certain matters relating to seeking alternative employment, complying with Chapter 3 of the WIMAct (which relates to workplace injury management) and seeking rehabilitation training. This provision alters the common law principle, discussed below, that the onus of proof of mitigation of loss rests on the defendant. The fact that the legislature addressed an issue of onus of proof in the same Part of the Workers Compensation Act in which s 151Z is found indicates that it was content that the common law principles as to the burden of proof of damages should apply to the latter section.
However there is authority to the effect that in some cases a defendant seeking to reduce a plaintiff’s damages bears the onus of proof of the issue said to justify that diminution. Does the fact that the purpose of s 151Z(2) is to allow a non-employer tortfeasor to achieve a reduction in the damages payable to the plaintiff worker alter the incidence of the burden of proof?
In Munce the Court held that the general rule was subject to the exception that the defendant bore both the legal and evidentiary burden of proving that a plaintiff’s damages should be reduced because of failure to mitigate his or her loss: see Hutley JA at 237, Glass JA at 239. It is that exception which has been overridden by s 151L(3).
It has also been held that a defendant bore the onus, albeit an evidentiary one only, of demonstrating that a plaintiff’s damages should be reduced in a dependency action for damages under the English Fatal Accidents Acts 1846. In such cases it is for the defendant to establish that benefits received after the death of the person on whom the plaintiff claims to have been dependent must be offset against the loss caused by the death: Hay v Hughes [1975] QB 790 at 807 per Lord Edmund-Davies citing Baker v Dalgleish Steam Shipping Co Ltd [1922] 1 KB at 377 per Younger LJ; Peacock v Amusement Equipment Ltd [1954] 2 QB at 354 per Somervell LJ and Mead v Clarke Chapman & Co Ltd [1956] 1 WLR at 84 per Parker LJ.
In Stewart v Dillingham Constructions Pty Ltd [1974] VR 24 Winneke, CJ, Little and Stephen, JJ explained that the onus placed on the defendant in a dependency case was an evidentiary one and that the trial judge was in error in directing the jury that the onus of proving offsetting gains rested on the defendant. Their Honours said (at 28):
“In Purkess v Crittenden (1965) 114 CLR 164; [1966] ALR 98, the joint judgment of the Chief Justice and Kitto and Taylor, JJ, after referring at (CLR) p. 168 to these ‘two frequently confused meanings,’ adopted as correct what appears in Phipson on Evidence 10th ed. paragraph 95 to the effect that the true or legal onus is always stable and, unlike the evidentiary onus, does not shift in the course of a case, so that in a personal injuries case such as that there is question ‘it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence’: at (CLR) p. 168. No different principle should, we think, apply in the case of an action for damages under Pt III of the Wrongs Act 1958. What is here in issue is the proof of damages; the plaintiffs are seeking from a jury such damages as the jury may think proportioned to the injury resulting to them from the death of their father: Wrongs Act 1958, s 17. In such circumstances it might be thought surprising that the principle applicable should not be what this Court has called ‘the general principle as to the onus of proof of damages...that the legal onus, the ultimate burden, rests upon the plaintiff to prove what injuries he received as a result of the defendant’s tort, the extent of the injuries and the duration of them’: Pastras v Commonwealth [1967] VR 161, at p. 164. The fact that claims under Pt III of the Wrongs Act are to a degree sui generis would not appear to call for any departure from the general principle; indeed, we would have thought that the statutory foundation of the plaintiffs’ claim, with its emphasis upon ‘injury’ and ‘assessment of damages proportioned to the injury’ served rather to emphasize that it is for the plaintiff to prove all that is involved in that concept.
As Lord Wright said in Davies v Powell Duffryn Associated Collieries Ltd. [1942] AC 601; [1942] 1 All ER 657, the legislation gives ‘a claim for damages to be assessed on the balance of profit and loss and to be proportionate to the injury resulting from the death to the individual. The injury . . . cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source.’ This passage, cited by Dixon, J (as he then was), in Public Trustee v Zoanetti (1945) 70 CLR 266, at p.288, together with like passages from the reasons of other members of the Judicial Committee in Davies’ Case - at (AC) pp. 606, 609 and 618--makes it clear that, in the words of Lord MacMillan at (AC) p. 609: ‘It is the net loss on balance which constitutes the measure of damages.’
It follows that it is that net loss which the plaintiff must prove; and, as Walsh, J, observed in Currie v Dempsey (1967) 69 SR (NSW) 116, it lies upon a plaintiff to prove each essential element in his cause of action, the onus of proof, in the sense of the legal onus, lying on the defendant only when by his defence there is raised not merely a denial of some essential element of the plaintiff’s cause of action but some allegation which may constitute a good defence which amounts to an ‘avoidance’ of the plaintiff’s prima facie claim to relief.” (emphasis added)
Kirby P and Priestley JA (sitting as a bench of two) applied Stewart v Dillingham Constructions Pty Ltd in Moore v Limb [1994] Aust Torts Rep ¶81-295. McHugh J referred to both cases with approval in De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338 at [111], footnote 98.
The passage the Full Court cited from Davies v Powell Duffryn Associated Collieries Ltd [1942] ac 601 has analogical force in the s 151Z context. The object of s 151Z is to ensure that the damages recoverable by the plaintiff worker against the non-employer tortfeasor are reduced to reflect the worker's reduced rights against the employer: Grljak no 2, cited with approval in Clout (at [34]). Once a non-employer tortfeasor sued by a plaintiff worker raises the issue that the worker has taken, or is entitled to take, proceedings independently of the Act to recover damages from his or her employer and that the non-employer tortfeasor is entitled to recover contribution from the employer, the plaintiff worker’s damages are to be reduced by an amount which depends upon calculating the damages, if any, which would be assessed in the plaintiff worker’s favour under Pt 5, Div 3. The amount the plaintiff worker can recover can only be determined after that assessment is made and the s 151Z(2)(c) calculation performed. It is “… the net loss on balance which constitutes the measure of damages”: Davies v Powell Duffryn Associated Collieries Ltd at 609.
The effect of s 151Z(2), if applicable, is that a plaintiff worker cannot recover damages against the non-employer tortfeasor unless (assuming that person is entitled to contribution from the employer) the s 151Z(2)(c) and (d) calculations are undertaken. The plaintiff worker is at risk of not having discharged the onus of proving damages if that calculation cannot be performed. In such circumstances, in my view, the plaintiff worker bears both the legal and evidentiary onus of establishing what, if any, damages would be assessed for the purposes of the hypothetical s 151Z(2)(d) exercise.
It would, of course, be incumbent on a non-employer tortfeasor wishing to invoke s 151Z(2) to give the plaintiff worker notice of that intention. A cross-claim against the employer may be sufficient notice. That would, I would have thought, be the most usual course. If the non-employer tortfeasor chose not to pursue a cross-claim, it should plead its intention to invoke s 151Z(2).
The conclusion that the plaintiff worker bears the onus of proving the damages for the purposes of the hypothetical s 151Z(2)(d) exercise is consistent with the legislative intention, apparent from the scheme of the Workers Compensation Act, the WIM Act and the Workers Compensation Commission Rules 2003, that it is incumbent upon a worker, whether seeking only to claim workers compensation or to recover common law damages, to demonstrate that he or she has suffered the degree of permanent impairment pre-requisite to a successful claim.
The issue of permanent impairment is relevant both to claims for workers compensation and Pt 5, Div 3 modified common law damages.
Part 3, Div 4 of the Workers Compensation Act (Compensation Benefits) deals with compensation for non-economic loss. A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment: s 66(1). For the purposes of Pt 3, Div 4, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Pt 7 of Chapter 7 of the WIM Act: 65(1). If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless an approved medical specialist has assessed the degree of permanent impairment: s 65(3). An approved medical specialist is a medical practitioner appointed under Pt 7 of the WIM Act (see s 2A(2) of the Workers Compensation Act which provides that the Workers Compensation Act is to be construed with, and as if it formed part of, the WIMAct).
The obtaining of a permanent impairment medical certificate and any examination required for the certificate are to be taken to be medical or related treatment for the purposes of Pt 3, Div 3 (which deals with compensation for medical, hospital and rehabilitation expenses) in the circumstances there set out, which include (par (b)) the worker having given the employer a copy of the certificate: s 73(1). A “permanent impairment medical certificate is a report or certificate of a medical practitioner that certifies that a worker has received an injury resulting in permanent impairment and the degree of permanent impairment (assessed as provided by the Workers Compensation Act) resulting from the injury: s 73(2). The worker’s employer is liable to pay for the cost of a permanent impairment certificate: s 60(1).
Section 322(1) which appears in Pt 7, Ch 7 of the WIM Act requires the permanent impairment assessment exercise required under both s 65(1) and s 151H(4) to be made in accordance with WorkCover Guidelines. An “approved medical specialist” undertakes that exercise: s 322(4). Where there is a dispute about, inter alia, the degree of permanent impairment of a worker as the result of an injury, the dispute may be referred for assessment by an approved medical specialist under Pt 7 of the WIM Act by a court or the Commission: s 321. The approved medical specialist is to give a certificate (a "medical assessment certificate") as to the matters referred for assessment: s 325(1). The “medical assessment certificate” appears to be the certificate referred to in s 73(2) of the Workers Compensation Act as the “permanent impairment medical certificate”. An assessment certified in a medical assessment certificate pursuant to a medical assessment under Pt 7 is conclusively presumed to be correct in any proceedings before a Court with which the certificate is concerned as to the degree of permanent impairment of the worker as a result of an injury: s 326(1)(a). Although the point was not debated on appeal, it is plain from the terms of s 65(1) and s 151H(4) as read with Pt 7 of the WIM Act, that proof of the requisite degree of permanent impairment turns on the certificate.
Other provisions of the WIM Act bear on the issue. Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury: s 254(1). “Work injury damages” are “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…whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages”: s 250(1)(a).
A worker who wishes to recover work injury damages must first seek to resolve that claim extra-curially. Court proceedings cannot be commenced unless a claim for work injury damages has been made: s 262, WIM Act. The claimant must provide to the relevant insurer “relevant particulars about the claim” (s 281(2), WIM Act) which includes details of “all impairments arising from the injury”: s 282(1)(b), WIM Act. Where the person on whom the claim is made accepts or disputes liability that person must notify the claimant whether or not the person accepts that “the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages”: s 281(2B), WIM Act.
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: s 315(1). A claimant is not entitled to serve a Statement of Claim materially different from the proposed Statement of Claim that formed part of the pre-filing statement: s 318.

Rule 81 of the Workers Compensation Commission Rules 2003 provides:
“81 (1) For the purposes of sections 315 and 318 of the [WIM Act], a claimant for work injury damages must serve with the pre-filing statement all information and documents upon which the claimant proposes to rely including:
(a) any notification provided to the claimant as required by section 281(2B) of the [WIM Act] that the degree of permanent impairment of the injured worker resulting from the injury is accepted as being sufficient for an award of work injury damages, or
(b) if the dispute has been referred to an approved medical specialist for assessment of permanent impairment, the medical assessment certificate issued by the approved medical specialist in accordance with section 325 of the [WIM Act].”
The effect of the legislative scheme, therefore, is that a plaintiff worker who seeks to recover common law damages from his or her employer is required to establish that the statutory threshold has been met. That construct should also apply in the s 151Z context where the plaintiff worker is entitled to, but has not taken, such proceedings. Section 151Z(2)(d) requires the Court to consider the case as if the plaintiff worker’s damages were being assessed under Pt 5, Div 3 and, in my view, it follows that the onus of proof in that context should fall where it would if the plaintiff worker had actually sued.
Finally I note that in cases to which the 2001 amendments apply in which the worker is entitled to, but has not, taken proceedings against the employer, it would usually be in the worker’s interest to demonstrate that the s 151H threshold was satisfied. This is because if there was no evidence that, the worker would recover any damages in accordance with Pt 5, Div 3 the whole of the contribution which the non-employer tortfeasor would (but for Pt 5) be entitled to recover from the employer as a joint tortfeasor or otherwise would exceed the amount of the contribution recoverable and would be used to reduce the damages to which the worker would be entitled against the third party: Grljak no1 (at 89), Grljak No 2 (BC9601317 at 7), Clout (at [34]). In other words, any damages found to be recoverable if damages are assessed pursuant to Pt 5, Div 3 reduce the differential between that amount and the contribution which the non-employer tortfeasor would (but for Pt 5) be entitled to recover from the employer as a joint tortfeasor or otherwise and, concomitantly, limit the amount by which the worker’s damages claim against the non-employer tortfeasor is reduced (s 151Z(2)(c)).

The result is that once Mr Johnston was on notice that s 151Z(2) had been invoked by Brimac’s filing of its cross-claim, he bore the onus of proving the Pt 5, Div 3 damages for the purposes of s 151Z(2)(d).
It appears that Mr Johnston had not undergone a medical assessment pursuant to s 322. Mr Kearns said he could not be compelled to do so. This does not appear to be correct. It is apparent that if a dispute about the degree to which Mr Johnston was permanently impaired by his injury had arisen at trial, that dispute could have been dealt with under s 321 of the WIM Act. If he had undergone such an assessment, his medical assessment certificate, if properly proved, would have been conclusive of the degree of his impairment.
As earlier noted, there was no evidence that Mr Johnston had suffered a 15% degree of permanent impairment. Mr Harrison did not contest Mr Kearns’ assertion that Mr Johnston had not undergone a s 322 assessment. Absent such evidence, and having regard to the power of Mr Johnston to have produced it (Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970] cited with approval by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 79 ALJR 565 at [17]) the factual premise that Mr Johnston had not suffered a 15% degree of permanent impairment from his injury which underpinned the contribution argument was correct.
As Mr Johnston did not establish that he suffered from a 15% permanent impairment as a result of his injury, he would not have been entitled to recover any damages from Forstaff: s 151H. Accordingly, there were no damages would have been assessed under s 151Z(2)(d) and there were no damages to which Brimac could look for contribution.
Delaney DCJ erred in ordering Forstaff to pay contribution to Brimac.
Forstaff’s appeal and Brimac’s cross-appeal should be allowed.
Orders
Brimac had proposed in its Notice of Cross-Appeal that if Forstaff’s appeal succeeded then the order made by the primary judge that it pay Mr Johnston $301,998.76 should be replaced by an order that it pay Mr Johnston $239,339.43. Mr Harrison accepted that calculation. However, in light of my conclusion that Mr Johnston was guilty of contributory negligence to the extent of 20%, that figure should be further reduced by $47,867.89 to $191,471.54.
I propose the following orders:
The liability appeal and the cross appeal
(1)Appeal and cross-appeal allowed.
(2)          Notice of cross-appeal to be filed within 7 days.
(3)Set aside the verdict and judgment entered by Delaney DCJ on 4 March 2005 against the appellant in favour of the respondent.
(4)          Verdict and judgment for the respondent in the sum of $191,471.54.
(5)Respondent to pay 20% of Brimac’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.
The contribution appeal
(6)          Grant leave to appeal.
(7)          Notice of Appeal to be filed within 7 days.
(8)          Appeal allowed.
(9)Verdict and judgment on the cross-claim set aside and in lieu thereof verdict and judgment for the appellant on the cross-claim.
(10)Respondent to pay the appellant’s costs of the contribution appeal and the appellant’s costs of the cross-claim in the District Court.

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LAST UPDATED: 05/12/2005