ISS Facility Services (NSW) Pty Ltd v State of New South Wales

[2016] NSWCA 87

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87
Hearing dates:	4 April 2016
Decision date:	29 April 2016
Before:	Leeming JA at [1] Payne JA at [9] Emmett AJA [13]
Decision:	1.   The appeal by ISS and the cross appeals by Mr King and the State be allowed. 2.   The orders made by the primary judge in the proceedings at first instance be set aside. 3.   The matter be remitted to the District Court for further hearing on the following questions: (a) The liability of the State to Mr King. (b) The extent, if any, to which Mr King caused or contributed to his injury: (i) in relation to the breach of duty on the part of ISS found by the primary judge, and (ii) in relation to any breach of duty, if so found, on the part of the State. (c) The extent to which ISS is entitled to contribution from the State if any breach of duty to Mr King on the part of the State is found. (d) Costs. 4.   Each of the parties file and serve, within 21 days, written submissions as to the costs of the appeal and any directions concerning costs of the proceedings in the District Court. 5.   Each party file and serve, within a further period of 14 days, written submissions in response to the submissions of the other parties.
Catchwords:	TORTS – negligence – workplace injury – second respondent employed by appellant as cleaner – second respondent injured in fall from ladder on premises of first respondent – contributory negligence – whether different assessments of the second respondent’s contributory negligence ought to have been made with respect to the claims brought against the appellant and the first respondent WORKERS COMPENSATION – whether appellant entitled to indemnity pursuant to Workers Compensation Act 1987, s 151Z DAMAGES – interest COSTS – costs of cross claim brought by appellant against first respondent
Legislation Cited:	Civil Liability Act 2002 (NSW) Interpretation Act 1987 (NSW), s 50 Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 Holmes v QBE Insurance Limited [2004] NSWCA 432 Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:	Principal judgment
Parties:	ISS Facility Services (NSW) Pty Ltd (Appellant/1st Cross Respondent/3rd Cross Respondent) State of New South Wales (1st Respondent/2nd Cross Respondent/2nd Cross Appellant) John King (2nd Respondent/Cross-Appellant/4th Cross Respondent)
Representation:	Counsel: L King SC/P Rickard (Appellant/1st Cross Respondent/3rd Cross Respondent) P Deakin QC/S Torrington (1st Respondent/2nd Cross Respondent/2nd Cross Appellant) P Mooney SC/E Grotte (2nd Respondent/Cross-Appellant/4th Cross Respondent)   Solicitors: Stiles Lawyers (Appellant/1st Cross Respondent/3rd Cross Respondent) Bartier Perry (1st Respondent/2nd Cross Respondent/2nd Cross Appellant) Masselos & Co Lawyers (2nd Respondent/Cross-Appellant/4th Cross Respondent)
File Number(s):	2015/186009
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 25 August 2015 Before: Sorby DCJ File Number(s): 2011/374779

HEADNOTE

[This headnote is not to be read as part of the judgment]

John King was employed by ISS Facility Services (NSW) Pty Ltd (ISS) as a cleaner at Forster Public School in New South Wales (the School). On 28 January 2009, Mr King was struck on the head by a roller door situated at the premises of the School. At that time, the State of New South Wales (the State) was the owner and occupier, and had the care, control and management, of the School.

Mr King sued the State and ISS in the District Court of New South Wales, alleging that each of them breached a duty of care owed to him. Each of the State and ISS denied that it was negligent. In addition, each alleged that Mr King’s own negligence caused or contributed to his injury. Further, each of the State and ISS filed a cross-claim against the other, seeking indemnity or contribution in respect of any liability that it might owe to Mr King.

On 17 March 2015, a judge of the District Court (the primary judge) concluded that the State was guilty of negligence and assessed contributory negligence on the part of Mr King at 30%. His Honour also concluded that ISS was guilty of negligence and assessed contributory negligence on the part of Mr King at 20%. Finally, his Honour apportioned responsibility for the accident to the State as to 75% and to ISS as to 25%.

ISS appealed arguing that the primary judge erred in making two different assessments of contributory negligence on the part of Mr King; by misconstruing s 151Z of the Workers Compensation Act 1987 (NSW) (the Compensation Act), as to the entitlement of ISS to an indemnity from the State; and in dismissing its claim for interest on the amount of compensation paid by it on behalf of Mr King.

Mr King cross-appealed arguing that the primary judge erred in finding that he was contributorily negligent. In particular, Mr King submitted that his Honour failed to make appropriate findings and give adequate reasons as to how he contributed to the accident. Mr King also complained about the making of two different assessments as to contributory negligence as against the State and ISS.

The State also cross-appealed arguing that the primary judge erred in finding a breach of duty of care on the part of the State that was not pleaded; in apportioning liability between it and ISS, assuming that the State was negligent; and in the application of s 151Z of the Compensation Act.

Held by Emmett JA (Leeming JA and Payne JA agreeing), allowing the appeal and both cross-appeals:

Lack of Adequate Reasons

A trial judge has an obligation to give adequate reasons for the decision, although the content of the obligation varies from case to case. The primary judge erred in failing to make adequate findings and give adequate reasons for concluding that Mr King caused or contributed to the injuries that he suffered: at [43]-[48].

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Holmes v QBE Insurance Limited [2004] NSWCA 432, referred to.

Due to the conclusion arrived at in relation to the adequacy of the primary judge’s reasons, Emmett AJA expressed no final view on the other issues and grounds of appeal and cross-appeal.

Judgment

1. LEEMING JA: I agree with the orders proposed by Emmett AJA, and, subject to the following (which assumes familiarity with the factual background), with his Honour’s reasons.

2. No findings were made by the primary judge on a critical matter, as to whether it was Mr Morgan who requested Mr King’s assistance, or vice versa. The parties were in dispute about this, and asked for such a finding to be made. Instead, the primary judge found that the decision to fix the roller door was a “joint decision”. It is true that the primary judge indicated a view during the course of the hearing that it was not necessary for him to make such findings. The parties did not acquiesce in that approach. It was not an available approach for a number of reasons, perhaps most obviously having regard to the need to make findings of contributory negligence. I agree with the whole of Emmett AJA’s reasons in relation to the inadequacy of the findings of fact and reasons, which require there to be a retrial, this Court being unable to resolve the direct clash in testimonial evidence between Mr King and Mr Morgan.

3. Moreover, the finding of breach of duty by the State was (expressly and repeatedly) based on a failure to direct Mr Morgan not to undertake repair work with a cleaner such as Mr King. This was not pleaded. Nor was it particularised. The essence of the case was that some person, for whose failure the State was vicariously liable, should have directed Mr Morgan not to make any request of a person such as Mr King. ISS, by its cross-claim, was content to reiterate the particulars of negligence alleged by the plaintiff, and not expand them. Nothing in the course of the hearing gave rise to any anticipation that such a finding would be made. Accordingly, there was, as Mr Deakin QC submitted at the commencement of his address, a denial of procedural fairness to his client. For that reason too the judgment against the State must, in my view, be set aside.

4. The principal point argued on appeal was the operation of s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the circumstances of this case, where both ISS and the State had been found liable in different amounts for work injury damages and damages under the Civil Liability Act 2002 (NSW), with different amounts of contributory negligence in each case, and with an apportionment of liability of 25% to ISS and 75% to the State. There are in my view at least three reasons why this Court should not determine that question.

5. The first is that the question does not presently arise, because the judgment against the State must be set aside. Depending on the outcome of the further trial, it may never arise between these parties.

6. The second is that the judgments in favour of Mr King against ISS and the State reflected an erroneous approach adopted by all parties. Having made findings of liability, quantum, contributory negligence and apportionment, the parties provided calculations (and corrected an error in relation to one head of damages) permitting his Honour to enter judgment. It was common ground that those amounts were wrong. As Mr King SC put it, the orders “represent a complete short circuiting of what would have been done if it were done, if I may say so, according to Hoyle”. The orders having been made by consent, they were not the subject of appeal. They provide a singularly unpromising basis to resolve the question of how s 151Z operates.

7. The third is no mention was made during the argument in this Court of Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357, a decision which was delivered after the appellant’s submissions had been filed, and shortly prior to the filing of the respondents’ submissions. It seems (to say the least) arguable that the decision is squarely on point, and it is undeniably relevant. In those circumstances, it would be necessary, in order to determine the point, for the parties to be heard on the effect of that decision. But it is not appropriate to invite further submissions from the parties (with the inevitable delay and cost to the parties) given the first and second matters already referred to.

8. At the conclusion of the hearing, the Court refused leave to Mr King to rely on a proposed notice of contention, which had not previously been foreshadowed, and had not at that time been formulated, to seek to maintain the decision on a basis that extended outside the pleadings. The first and second matters above meant that such a notice of contention could not have succeeded. For those reasons I participated in the order made on 4 April 2016.

9. PAYNE JA: I have had the benefit of reading the decision of Emmett AJA in draft and I agree with his Honour’s reasons and the orders he proposes and wish only to add two observations.

10. The first observation concerns the form of the orders made by the primary judge, apparently by consent. As Emmett AJA observes, the rationale for the orders is not easy to discern. Particularly in circumstances where the interaction between findings of contributory negligence and the proper operation of s151Z of the Workers Compensation Act 1987 (NSW) is being addressed, it is important that it is clear (either in the orders themselves or in reasons for making the orders) how the orders, as framed, conform to the various statutory requirements and produce an outcome which correctly reflects the reasons of the Court. The orders made did not meet that test.

11. The second observation is in relation to the findings of the primary judge that the State of New South Wales was negligent in failing to direct its employee Mr Morgan not to attempt to repair school equipment by himself or together with an invitee. As Emmett AJA demonstrates, such a case was not pleaded against the State. I could find no references in the cross-examination directed to establishing such a case nor to any argument being advanced to the primary judge in support of it. In my view, the submission made by the State that the question of failure properly to instruct Mr Morgan was not pleaded, not raised in cross examination and not raised in argument was correct.

12. I agree with Emmett AJA that by reason of the failure of the primary judge to give adequate reasons the matter must be remitted for a retrial limited to the questions identified by his Honour.

13. EMMETT AJA: These proceedings are concerned with the extent to which Mr John King is entitled to recover damages from the State of New South Wales (the State) and ISS Facility Services (NSW) Pty Ltd (ISS), as a consequence of injuries suffered by Mr King on 28 January 2009, when he was struck on the head by a roller door situated at the premises of Forster Public School, New South Wales (the School). At that time, the State was the owner and occupier, and had the care, control and management of, the School. Mr King was employed by ISS as a cleaner at the School.

14. Mr King sued the State and ISS in the District Court, alleging that each of them breached a duty of care owed to him. Each of the State and ISS denied that it was negligent. In addition, each alleged that Mr King’s own negligence caused or contributed to his injury. Further, each of the State and ISS filed a cross-claim against the other, seeking indemnity or contribution in respect of any liability that it might owe to Mr King.

15. On 17 March 2015, a judge of the District Court (the primary judge) concluded that the State was guilty of negligence and assessed contributory negligence on the part of Mr King at 30%. His Honour also concluded that ISS was guilty of negligence and assessed contributory negligence on the part of Mr King at 20%. Finally, his Honour apportioned responsibility for the accident to the State as to 75% and to ISS as to 25%.

16. Having made those findings, the primary judge made orders by consent as follows. The primary judge assessed total damages suffered by Mr King at $1,078,552.76 and directed judgment for Mr King against the State in the sum of $566,224.45, being $1,078,552.76 x 75% x 70%. The multipliers represent the apportionment of responsibility as between the State and ISS and the contributory negligence of Mr King. Work injury damages were agreed at $478,858.25 and his Honour directed the entry of judgment for Mr King against ISS in the sum of $95,771.65, being $478,858.25 x 25% x 80%. Again, the multipliers represent the apportionment of responsibility as between the State and ISS and the contributory negligence of Mr King.

17. On 28 May 2015, the primary judge published reasons for his Honour’s conclusions on the cross-claims as between the State and ISS. On 1 July 2015 and 25 August 2015, his Honour made orders by consent concerning payments to be made by ISS and the State. The rationale for the orders is not easy to discern. Having regard to the ultimate conclusions that I have reached, it is not necessary to deal with the terms of the orders.

18. By Notice of Appeal filed on 28 August 2015, ISS appeals from the orders made by the primary judge. By Notice of Cross-Appeal filed on 14 September 2015, Mr King also appeals from the orders made by the primary judge. Finally, by Amended Notice of Cross-Appeal filed in Court on 4 April 2016, at the commencement of the hearing of the appeal and cross appeals, the State also appeals from the orders made by the primary judge. By consent, orders were made extending the time, to the extent necessary, for the filing of the notice of appeal and notices of cross appeal.

The Claims in the District Court

19. In his Amended Statement of Claim filed on 28 April 2014, Mr King made allegations that may be summarised as follows:

1. The State was the owner and occupier of the School.

2. Mr King was employed by ISS to perform cleaning duties at the School.

3. On 28 January 2009, Mr King was required to assist Mr Dennis Morgan, a general assistant employed by the State, to perform duties at the School.

4. Mr Morgan directed Mr King to assist in the unwinding of a roller door situated at the rear of the School and, while performing that activity, the roller door unexpectedly unwound with force and connected heavily with Mr King’s head causing him to fall the ground and suffer injury.

5. The injury was caused by the negligence of each of the State and ISS, their servants or agents.

20. The particulars of negligence alleged against the State were as follows:

1. Failure to conduct regular inspections of the roller door to ensure that it was in safe working order;

2. Failure to undertake regular inspections of the roller door;

3. Through its employees, requesting Mr King to perform an activity for which he was not skilled and trained;

4. Failure to undertake expeditious repairs of the roller door when the State knew or ought to have known it was defective;

5. Having instructed Mr King to repair the roller door, failing to ensure that all precautions were undertaken to ensure that Mr King was not exposed to unnecessary risk of injury and that the directions he was given were appropriate having regard to his training, skill and ability;

6. Failure to employ appropriate and sufficient personnel to perform repair work at the School, obviating the need to require other persons, such as Mr King, to assist.

21. The particulars of negligence alleged against ISS were as follows:

1. Failure to instruct Mr King properly;

2. Failure to implement, provide and maintain a safe system of work;

3. Failure to train or adequately train Mr King;

4. Failure to provide such information, instructions, training and supervision necessary to ensure the health and safety of Mr King whilst performing duties at the School;

5. Failure to conduct any or any adequate inspection of the School;

6. Failure to determine adequately or at all the safety of ISS’s system of work within which Mr King and other employees of ISS would be working;

7. Failure to ensure that Mr King was adequately trained for the tasks he would be performing at the School;

8. Failure to take any or any adequate care for the safety of Mr King;

9. Exposure of Mr King to a risk of injury of which ISS, as Mr King’s employer, should have been aware.

22. In its Amended Defence of 6 December 2012, filed before ISS had been joined as a defendant, the State alleged that Mr King’s injuries were suffered as a result of his own fault and contributory negligence. That negligence was particularised as follows:

1. Failing to maintain a proper lookout;

2. Failing to take any, or any adequate, care for his own safety;

3. Exposing himself to a risk of injury in the circumstances;

4. Failing to move with care in the circumstances;

5. Failing to heed, or to heed adequately, the physical characteristics of the area.

23. In its Defence of 13 June 2014, ISS allege that the injury suffered by Mr King was caused or contributed to by his own negligence. ISS particularised that allegation as follows:

1. Failing to take reasonable care for his own safety;

2. Failing to follow instructions;

3. Undertaking duties and activities that were outside the scope of his job description and role.

The Reasons of the Primary judge

24. A criticism made of the reasons of the primary judge, particularly by Mr King, is that, while substantial parts of the transcript of the oral evidence are recited, there is an absence of reasoning as to the conclusions based on that evidence. His Honour began by reciting facts that his Honour said were not in dispute. His Honour dealt with Mr King and Mr Morgan and then dealt with Mr King’s injury on 28 January 2009.

24. The primary judge recorded that Mr King had worked as a cleaner for most of his working life and had been employed by ISS since 29 July 2007. In 2007, he was assigned to work as a cleaner at the School, where he worked a daily split shift, being from 5.00 am to 9.00 am and then from 2.00 pm to 6.00 pm. Mr King’s cleaning duties included vacuuming, dusting, mopping and garbage removal. ISS provided no supervisor on a daily basis, but an inspection by a sub-manager of ISS took place “monthly to three monthly”. ISS provided an onsite communications book, which contained duties to be performed, and cleaners could record anything about their work in the book that would then come to the attention of management.

25. The primary judge then said that Mr Morgan was employed by the State as a general assistant at the School, doing both inside and outside work. The inside work involved repairs and fixing things at the request of teachers, and the outside work consisted of mowing and gardening. His Honour said that, as a cleaner employed by ISS, it was no part of Mr King’s duties to make repairs to buildings in the School and that he had never been trained or instructed by ISS to do repairs or maintenance around the School. In addition, it was not part of Mr King’s duties to assist an employee of the State. In particular, it was no part of his duties to assist Mr Morgan.

26. Next, the primary judge extracted parts of the transcript of the oral evidence at the trial in which Mr King was asked why he assisted Mr Morgan on occasions before 28 January 2009, if it was not part of his work duties. His response was:

We just had a close working relationship … as a normal human being that’s what you do. You help your workmates out.

Mr King agreed that he also did physical work to assist Mr Morgan, such as setting out the hall on Friday mornings for awards presentation, in that he gave Mr Morgan assistance to pull out the chairs and tables. He confirmed that that was not part of his cleaning duties but that he did it to assist Mr Morgan.

28. The primary judge then addressed attention to Mr King’s injury on 28 January 2009. His Honour found that Mr King attended the School at 5.00 am, as was his usual practice, and met Mr Morgan at about 7.00 am, outside the front of Mr Morgan’s room. At the entrance of that room is the roller door. Two fellow cleaners of Mr King were also present. His Honour recorded that Mr King said that the door had come out of its tracks and was just “floating” outside its tracks. His Honour described the “tracks” as the vertical metal on either side of the doorway. It appears that there was no issue as to those matters.

29. The primary judge then set out extracts from the transcript of the oral evidence given at the trial by Mr King as well as evidence given by Mr Morgan. It is fair to say that there was not insignificant conflict between the version of events given by Mr King, on the one hand, and the version of events given by Mr Morgan, on the other. One complaint is that his Honour did not resolve that conflict.

30. Thus, the primary judge said the following in relation to the accident of 28 January 2009:

7.   The plaintiff said Mr Morgan said to him, “Can we fix this door?” [T.15]. In cross examination by Mr Torrington at [T.51] the Plaintiff said:

Q.   Did you then say to him, words to the effect, I’ll help you mate, to get it back up, or words to that effect?

A.   No.

Q.   I suggest to you he replied saying, no, it’ll be fine. Just leave it.

A.   No.

Q.   After he said to you that – I’m suggesting that after he said to you the words, ‘no it’ll be fine, just leave it,’ he repeated that a couple more times to you, words to the effect, ‘no, just leave it’?

A.   No sir, that’s not correct.

Q.   You at that stage had a good working relationship with Mr Morgan; is that right?

A.   Yes we did.

Q.   I suggest to you after he said to you a couple of times, ‘look just leave it,’ you said words to the effect, ‘no,’ or, ‘I’ll get on with it,’ or, ‘I’ll do something,’ or words to that effect?

A.   No.

8.   Further on at T.51:

Q.   What I’m suggesting to you, sir, is that there was a conversation where Mr Morgan said, ‘leave it, just leave it,’ and you continued on wanting to do the job?

A.   Mr Morgan asked me, ‘Could we repair it now or later?’ and I said, ‘I have work to do later, let’s do it now.’

9.   The Plaintiff said to Mr Morgan: “Do you want to do it now or do it later?” [T.16]. Mr Morgan then said “We will do it now”.

10.   Mr Morgan in evidence said at T.109:

Q.   What was the conversation?

A.   My recollection would be he would have said something like, ‘Jo entered your room and the door broke,’ something like that.

Q.   And do you recall what you responded?

A.   Yeah, “Don’t worry about it mate. I’ll look after it”.

Q.   Did he reply to that, can you recall?

A.   Yeah, something like, ‘No, it’s our fault, cleaners’ fault. Jo entered your room and the door broke while she was doing that and it’s our fault and I think we should help you fix it’. So he helped get it back up.

Q.   Do you recall if you replied to that?

A.   Well I did say, don’t worry about it mate, you know, it’d be all right but insisted so yeah, it went from there.

11.   The Plaintiff said Mr Morgan obtained a ladder from a nearby room and he stood on the ladder which had been placed in the centre. The Plaintiff described what he did then as follows at T.18:

Q.   There are two matters being proposed, one is that with the assistance of Mr Morgan, the axle is rotated and the entire roller door is wound up around the axle, do you understand that? That’s one of the possibilities.

A.   Yes.

Q.   The other one is that you simply are folding the roller door at the top of the axle and then you feed the end in down through the channels. What was it that you did?

A.   I stood on the ladder sir, Mr Morgan passed me up the top of the roller door, I lifted it over the axle, passed it down the back of the wall and gave it to Mr Morgan. He pulled it down to the ground again, passed it up to me, I rolled it over again and it got shorter and shorter each time, for the very last time when it unwound again, and it unwound at speed sir.

Q.   Just stop there, if you could. How long did this action take of rolling the door at the top of the axle, how long had you been working with Mr Morgan before something happened?

A.   It was a good 15, 20 minutes I think.

12.   In answer to questions by me, the Plaintiff said at T.19:

Q.   So he passed up the bottom part of the roller door, like that, up to you and you then folded it over the axle, it went down again, is that correct?

A.   That’s correct sir.

Q.   Then he gave it again and it went up and over again?

A.   That’s correct sir.

13.   Mr Morgan described what was occurring at T.109-110:

Q.   When you say it went from there, did anyone do anything?

A.   Yeah, don’t remember where the ladder came from, but there was a ladder and John got the ladder at one end. I obtained probably a broomstick or something, it was a stick of some sort, at the other end and he got up, maybe two steps on the ladder after he got it to a certain height and I got it with a stick to push the bottom beam of the roller door up to sort of, you know, retract it back to where it was.

Q.   Mr King was up a ladder, you said, took two or three steps.

A.   Two steps, not three, I don’t think, but not sure about that, about two.

Q.   Do you recall what rung of the ladder he was on at that point?

A.   The second step.

Q.   Where was the ladder at that time?

A.   Facing the roller door, to the left end, and I was at the right end with the stick.

Q.   Whilst you were doing that activity, what were you doing with your stick?

A.   Pushing, otherwise it would be uneven, so John had his end up and I had my end with the stick, both going up, I’d imagine.

Q.   And did something happen?

A.   Yeah, we would have got to the top of the tumbler of the roller door, trying to force it back over from under. So it come over, and as that happened, it went through, and I wasn’t looking your Honour at that time, doing what I was doing and it went through with a bit of noise I suppose, and I noticed John falling to the left of me.

14.   The Plaintiff described his fall and injury as follows at T.20:

Q.   Could you tell us what then happened after that 15 minute period, what happened during the incident?

A.   When we got to the last roll, at the bottom of the roller door, it’s probably 4 inch, 100 ml wide, which on the last roll as you can imagine, the roller’s getting wider and bigger so the gap behind the wall, the brick wall and the roller itself was minimising each time you rolled it around, so that 100 ml rail on the bottom was just enough to get through right at the back, the last one, but remember of course you had to hold it at all times because if it was let go, it would just uncentrifugally unwind at speed which is exactly what happened. Mr Morgan didn’t have a hold of it, he let it go. I was on the ladder. It centrically unwound again, out of the brackets, collected the top of my head.

Q.   What part of the door, when you say ‘collected your head’?

A.   The 100 ml channel.

Q.   That’s the base, the bottom-

A.   The bottom, base of the door, just spun around like that and come out, come out, come out every time and knocked me on top of the head.

15.   The Plaintiff said he was at least “eight rungs” up the ladder when the roller door unwound and the metal base flipped back. The Plaintiff said as the door suddenly unwound, the metal base of the door hit him on the head and “knocked me off the ladder”.

16.   It was the evidence of Mr Morgan, as set out earlier, that it was at the suggestion of the Plaintiff, on the basis that the condition of the door was the cleaner’s fault, [T.109] that they attempted to fix the door.

17.   The Plaintiff said that while he was on the ladder rolling the door onto the axle, it was Mr Morgan who have him instructions. At T.19 he said:

Q.   Who was giving instructions during that 15 minutes, who was telling who what to do?

A.   Well I was under Mr Morgan’s instructions because he’d done it before sir.

18.   Mr Morgan in cross-examination at T.124-125 agreed it was his job to identify property damage at the school. He said:

Q.   The identification of the damage to the door was something which-

A.   Visually you could see there’s a problem there, yeah.

Q.   It was your job to make arrangements for it to be fixed, was it not?

A.   It would have done, yeah. It would have got to that stage, yeah.

Q.   That’s your responsibility?

A.   And that’s why I said, “John, don’t worry about it.” On more than one occasion. He insisted.

Q.   Mr Morgan you have no power to control Mr King, do you?

A.   No, I can’t direct him to do anything.

Q.   If you insisted that he didn’t interfere with the door and told him to keep away from it, he would obey that wouldn’t he?

A.   No. Not if he felt that he should help in the situation that we’re in.

Q.   You see, the door was repaired, I think only about a month or so later, wasn’t it? Or a matter of days after this incident?

A.   After it?

Q.   Yes.

A.   He came out the same day, if I remember. I think they called the chap out straightaway.

19.   In cross examination by Mr Jobson, counsel for the Second Defendant, Mr Morgan said at T.137:

Q.   You said in your evidence before that nothing in your experience has happened to the roller door before this incident in –

A.   Nope, nothing. No.

Q.   When you came and you saw the roller door in the position that it was you knew that was part of something that you would have to report to the principal?

A.   I would have to yeah. Get it started, something to be fixed, yeah.

Q.   And to obtain somebody else to fix it?

A.   Mmm.

Q.   The fact that you may or may not have been told who caused the roller door to –

A.   It didn’t matter to me.

Q.   It didn’t matter and it wouldn’t have affected what you carried out in your duties?

A.   No, no.

Q.   You also said that you knew Mr King was a cleaner and fixing the roller, from your understanding wasn’t part of his duties.

A.   That’s correct.

31. After setting out extracts from the transcript and comments as indicated above, the primary judge then said that, on the balance of probabilities, based on the evidence of Mr King and Mr Morgan, he found that as at 28 January 2009:

1. Mr King was the cleaner at the school employed by ISS;

2. Mr Morgan was the general assistant for the school employed by the State;

3. Mr King’s duties were limited to cleaning offices and the classrooms at the school;

4. The duties of Mr Morgan were limited to general maintenance work inside and outside the school buildings;

5. The responsibility for fixing the inoperative roller door either by attending to the work, or arranging for outside assistance, was that of Mr Morgan exclusively;

6. The decision by Mr King and Mr Morgan to try to fix the roller door was a joint decision of both of them;

7. Although a joint decision was taken to repair, Mr Morgan was the person who, because of his position at the school, was in charge of the operation in giving instructions, notwithstanding that Mr King, standing on the ladder, was doing the work of winding the roller door back over the axle.   

32. The primary judge gave no explanation as to how those findings were based upon the evidence of Mr King and Mr Morgan. In particular, his Honour gave no reasons for his conclusion that the decision by Mr King and Mr Morgan to try to fix the roller door was a joint decision by both of them. Findings as to that would be critical to the question of whether the State was negligent and the extent, if at all, to which Mr King’s actions caused or contributed to the accident.

33. In dealing with the liability of the State, the primary judge held that the State had a duty to Mr King, an invitee in the School, which is owned and occupied by the State. His Honour held that the State breached that duty when it failed to take precautions against a risk of harm to Mr King, in that it failed to direct its employee, Mr Morgan, not to attempt to repair equipment at the School such as a heavy roller door, by himself or together with an invitee such as Mr King, in circumstances where there was a not insignificant risk that foreseeable harm to a person such as Mr King could result. His Honour held that, in those circumstances, a reasonable person in the position of the State should have directed its employee, Mr Morgan, not to undertake such work alone or in conjunction with an invitee, such as Mr King. His Honour found the probability of harm in attempting to repair the heavy roller door, in the manner attempted by Mr Morgan and Mr King, was relatively high with likely serious harm resulting when the door unwound and hit Mr King on the head, since Mr King was standing on the rungs of a stepladder at the time. His Honour found that the burden on the State in properly instructing its employee, Mr Morgan, was not a heavy one.

34. Thus, the only finding of negligence was that the State did not properly instruct Mr Morgan. The State complains that that was not a particular of the negligence alleged in the statement of claim.

35. In dealing with contributory negligence as between Mr King and the State, the primary judge found that a job such as fixing the roller door was the exclusive responsibility of Mr Morgan, an employee of the State and a general assistant at the School. His Honour held that it was Mr Morgan’s responsibility, and not Mr King’s, to decide what action to take. His Honour found that Mr King offered to assist in the repair of the roller door in circumstances where he ought to have known at the time that carrying out the act of standing on the ladder and winding back the door over the axle involved a risk of harm. His Honour gave no further reason for assessing Mr King’s contribution at 30%. That is a ground of complaint by Mr King.

36. ISS makes no complaint about the finding by the primary judge of negligence on its part. Accordingly, it is not necessary to say anything about the findings made by his Honour in that regard.

37. Having found that ISS was guilty of negligence, the primary judge then considered the question of contributory negligence on the part of Mr King. His Honour found that the limits of the responsibility and duties of Mr King were not explained to him at the time of hiring him and that he was not given a warning about going outside his duties before the accident in question. His Honour observed that Mr King’s job was that of a cleaner and that assisting Mr Morgan to repair the roller door was obviously not cleaning work. His Honour said that, notwithstanding the overriding non-delegable duty of ISS to its employee, Mr King, Mr King departed from the standard of care of a reasonable person in assisting Mr Morgan to repair the door by standing on a ladder and folding the door back onto its axle. His Honour assessed contributory negligence on the part of Mr King at 20%, but gave no further reasoning. That is also a ground of complaint by Mr King.

The Appeals

38. The complaints made by ISS are that his Honour erred:

• in making two different assessments of contributory negligence on the part of Mr King,

• by misconstruing s 151Z of the Workers Compensation Act 1987 (NSW) (the Compensation Act), as to the entitlement of ISS to an indemnity from the State, and

• in dismissing its claim for interest on the amount of compensation paid by it on behalf of Mr King.

39. The complaints by the State are that the primary judge erred:

• in finding a breach of duty of care on the part of the State that was not pleaded,

• in apportioning liability between it and ISS, assuming that the State was negligent, and

• in the application of s 151Z of the Compensation Act.

40. Mr King’s principal complaint is that the primary judge erred in finding that he was contributorily negligent. In particular, Mr King complains that his Honour failed to make appropriate findings and give adequate reasons as to how he contributed to the accident. Mr King also complains about the making of two different assessments as to contributory negligence as against the State and ISS.

41. I shall say something about each of the issues raised in the appeals. However, in the light of the conclusion that I have reached on the question of the adequacy of the primary judge’s reasons, it will not be necessary to express a final view on several of the issues.

Different Assessments of Contributory Negligence

42. In one sense, it might appear to be incongruous that the same conduct by Mr King could be held to have contributed to the accident in different degrees. However, in circumstances where there are two tortfeasors, the question of contributory negligence on the part of a victim must be considered separately in relation to the respective duties of care owed to the victim by each tortfeasor. In the present case, a duty of care may be owed to Mr King by the State, on the one hand, and by ISS, on the other. Each of ISS and the State owed a different duty to Mr King and, accordingly, the breach of those duties by each tortfeasor will be different. While the actions of Mr King were the same, the relative responsibility, as against the State and as against ISS, that he had for the accident, if any, must be assessed in the light of the duty owed to him by the relevant tortfeasor. There was no error on the part of the primary judge simply by reason of having assessed Mr King’s contribution to the accident in different degrees as between him and the State and as between him and ISS. Having regard to the conclusion that I have reached in relation to Mr King’s cross-appeal, it is not necessary to express a view as to the responsibility of Mr King as against the State or ISS.

Lack of Adequate Reasons

43. The primary judge found that Mr Morgan was exclusively responsible for repair and maintenance around the School, that Mr Morgan was in charge of the operation concerning the roller door and that Mr Morgan was responsible for giving instructions during the time when Mr King was working with him. On the other hand, his Honour failed to make findings of fact as to the exact circumstances that brought about Mr King’s participation in the activity of repairing the roller door. His Honour simply found, without giving reasons, that the decision to fix it was a “joint decision” of Mr King and Mr Morgan, without explaining what he meant by “joint decision”. More specifically, his Honour did not determine whether Mr King imposed himself upon Mr Morgan or whether Mr Morgan asked Mr King to help him.

43. The primary judge assessed contributory negligence on the part of Mr King as against the State on the basis that Mr King ought to have known that, by standing on the ladder and winding back the roller door over its axle, there was a risk of harm. However, his Honour did not explain how that risk contributed to Mr King’s injury.

44. In relation to ISS, the primary judge found that it was foreseeable that Mr King would assist Mr Morgan in the repair of the roller-door and, therefore, that there was a likelihood that Mr King would be exposed to a risk of injury and harm. His Honour then determined that Mr King contributed to his injury because, in assisting Mr Morgan, he departed from the standard of care of a reasonable person. However, his Honour gave no explanation as to what standard of care might be expected of Mr King in circumstances where he assisted Mr Morgan as he did. His Honour made no finding as to the actions of Mr King that constituted negligence on his part, other than merely assisting Mr Morgan. There was no finding as to the risk that should have been apparent to Mr King.

45. Thus, in dealing with the question of contributory negligence in relation to Mr King’s claims against the State and ISS, the primary judge made no findings as to how any specific conduct on the part of Mr King contributed to the occurrence. It is quite unclear what act or omission of Mr King, if any, his Honour held contributed to or caused the accident in question, since there are no findings as to the mechanism of the accident. His Honour made no findings as to whether Mr King’s version of events or Mr Morgan’s version of events was correct. His Honour offered no explanation as to why he concluded that Mr King and Mr Morgan made a joint decision to try to fix the roller door. While his Honour found that Mr Morgan was in charge of the operation in giving instructions, his Honour made no findings as to the instructions that were given by Mr Morgan. In those circumstances, it is impossible to make an assessment as to the degree of responsibility for the accident that should be sheeted home to Mr King, both as against the State and against ISS.

46. A trial judge has an obligation to give adequate reasons for the decision, although the content of the obligation varies from case to case. Normally, the contents of an adequate statement of reasons include a reference to the relevant evidence, any material finding of fact and any conclusions or ultimate findings of fact reached, the reasons for making those relevant findings of fact and conclusions, and the reasons for applying any law to the facts found. In particular, a trial judge must analyse the evidence as a whole to determine, where there are different versions of events, which of the versions should be accepted. [1]

    1. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Holmes v QBE Insurance Limited [2004] NSWCA 432.

47. I consider that the primary judge erred in failing to make adequate findings and give adequate reasons for concluding that Mr King caused or contributed to the injuries that he suffered. His Honour’s decision should therefore be set aside. It will be necessary for the matter to be remitted to the District Court for further trial on the question of whether the State was guilty of negligence and the extent, if any, to which Mr King caused or contributed to the accident, both as against the State and as against ISS.

Pleading as against the State

49. It is desirable to make some observations concerning the principal complaint by the State, that the findings of negligence on its part that were made by the primary judge were not pleaded. I have set out above the particulars of negligence alleged against the State. The finding made by the primary judge was that the State failed to direct Mr Morgan not to attempt to repair equipment at the School and that a reasonable person in the position of the State should have directed Mr Morgan not to undertake such work alone or in conjunction with an invitee such as Mr King. That is a finding of breach on the part of Mr Morgan’s superiors.

50. However, there is no allegation in the amended statement of claim of a breach by the State in failing to give appropriate instructions to Mr Morgan. In the light of the pleading, the State was entitled to assume that there was no allegation of negligence on the part of Mr Morgan’s superiors, in failing to give him appropriate instructions. Had such an allegation been made, it may well have been open to the State to call evidence from Mr King’s superiors as to the instructions that he was given. It is unnecessary to reach a final conclusion in that regard since, for the reasons indicated above, it will be necessary for the matter to be remitted to the District Court for further trial.

Section 151Z of the Compensation Act

51. In its cross-claim against the State, ISS sought indemnity, under s 151Z(1)(d) of the Compensation Act, in respect of the full amount of compensation payments made to, for and on behalf of Mr King. Section 151Z(1)(a) relevantly provides that, if an injury for which compensation is payable under the Compensation Act was caused under circumstances creating a liability in some person other than the worker’s employer (the third person) to pay damages in respect of the injury, the worker may take proceedings both against the third person to recover damages and against any person liable to pay compensation under the Compensation Act for payment of that compensation. However, the worker is not entitled to obtain both damages and compensation. Under s 151Z(1)(b), if the worker firstly recovers compensation and secondly damages, the worker is liable to repay out of those damages the amount of compensation that is being paid under the Compensation Act. Under s 151Z(1)(c), if the worker first recovers damages from the third person, the worker is not entitled to recover compensation under the Compensation Act.

52. Section 151Z(1)(d) then provides that, if the worker has recovered compensation under the Compensation Act, the person by whom the compensation was paid is entitled to be indemnified by the third person, being a person liable to pay damages. However, the indemnity is limited to the amount of those damages. The State contended that ISS had no entitlement to an indemnity under s 151Z(1)(d).

53. In support of its contention as to the correct construction of s 151Z(1)(d), the State points to s 151Z(2). Section 151Z(2) relevantly provides that, if, in respect of an injury to a worker for which compensation is payable under the Compensation Act, the worker takes or is entitled to take proceedings independently of the Compensation Act to recover damages from a third person, and the worker also takes or is entitled to take proceedings independently of the Compensation Act to recover damages from that employer, s 151Z(2)(e) has effect. Under s 151Z(2)(e), if the worker does not take proceedings against the employer or does not accept satisfaction of the judgment against the employer, s 151Z(1) applies as if the worker had not been entitled to recover damages from that employer. However, 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 s 151Z(1)(d) is for the amount of the excess only. Further, if the compensation paid by that employer does not exceed the amount of that contribution, s 151Z(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.

54. In the light of the regime that I have briefly described, the State contends that s 151Z(1)(d) should be construed as excluding any right of indemnity for the employer where the employer’s negligence contributes to the occurrence out of which the right to compensation arose. It contends that the object of s 151Z is to provide an indemnity for an employer who has paid compensation by the third person, who is responsible in law for the occurrence that has caused the employer to be liable to pay compensation. It contends that the provision is intended to cover the case where the only liability of the employer to the worker is the statutory liability to pay compensation. [2]

    2. See Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 340.

55. On the true construction of s 151Z(1)(d), the State says, the right to an indemnity is given only to an employer who has no liability to the worker in relation to the compensable injury, other than the statutory liability to pay compensation under the Compensation Act. [3] If s 151Z(1)(d) applied where the employer had been guilty of negligence causing injury, the result would be to give to a negligent employer a right to a complete indemnity from the third person, even though the employer’s share in the responsibility for the injury was much greater than that of the third person. [4] Further, the State says, s 151Z(2)(e) would have no work to do.

    3. Ibid at 341.

    4. Ibid at 350.

56. There is considerable substance in the contentions advanced on behalf of the State. However, having regard to the conclusions that I have reached above, it is not necessary to express any view. Indeed, since the application of s 151Z of the Compensation Act in the circumstances of the case (assuming the findings of negligence by the primary judge were to stand) raises questions of some complexity, it would be undesirable to do so. Nevertheless, failure to address those questions should not be taken as an endorsement of the conclusions reached by the primary judge.

57. At the end of the hearing, Mr King sought leave to rely on a proposed notice of contention, which had not previously been foreshadowed, and had not at that time been formulated. It was foreshadowed that he would seek to maintain the decision of the primary judge on a basis that went outside the pleadings. Having regard to the fact that a new trial would be necessary and the difficulty with the form of orders that were made by consent, there would have been no utility in dealing with the matters proposed to be raised. Accordingly, the Court refused leave on 4 April 2016.

Conclusion

58. There is no dispute as to the liability of ISS in negligence or as to the quantum of damages to which Mr King would be entitled as against ISS, apart from questions of contributory negligence and, if the State is ultimately found to have been negligent, possible contribution as between the State and ISS and the possible application of s 151Z of the Compensation Act. Further, there is no dispute as to the quantum of damages to which Mr King would be entitled as against the State, if the State is ultimately found to have been negligent, apart from questions of contributory negligence and possible contribution as between the State and ISS and the possible application of s 151Z of the Compensation Act.

59. The orders that I propose are as follows:

1.   The appeal by ISS and the cross appeals by Mr King and the State be allowed.

2.   The orders made by the primary judge in the proceedings at first instance be set aside.

3.   The matter be remitted to the District Court for further hearing on the following questions:

1. The liability of the State to Mr King.

2. The extent, if any, to which Mr King caused or contributed to his injury:

1. in relation to the breach of duty on the part of ISS found by the primary judge, and

2. in relation to any breach of duty, if so found, on the part of the State.

3. The extent to which ISS is entitled to contribution from the State if any breach of duty to Mr King on the part of the State is found.

4. Costs.

4.   Each of the parties file and serve, within 21 days, written submissions as to the costs of the appeal and any directions concerning costs of the proceedings in the District Court.

5.   Each party file and serve, within a further period of 14 days, written submissions in response to the submissions of the other parties.

**********

Endnotes

Decision last updated: 29 April 2016