Johnson v Bond

[2014] TASSC 16

[2014] TASSC 16

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Johnson v Bond [2014] TASSC 16

PARTIES:  PARKE, Michael Francis
  v
  JOHNSON, Damien
  BOND, David

FILE NO:  539/2006
DELIVERED ON:  4 April 2013
DELIVERED AT:  Hobart
HEARING DATE:  24 March 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Statutes – Acts of Parliament – Operation and effect of Acts – Retrospective operation – Amending Acts – Amendment taken to have commenced on past date such that certain pending proceedings were barred – Exemption in respect of "proceedings for an award of damages" commenced but not completed – Issue as to whether particular proceedings entitled to benefit of exemption.

Workers Rehabilitation and Compensation Act 2007 (Tas), ss2(3), 35, 36 and 37.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss138AA, 138AB and 138ABA.
Wrongs Act 1954 (Tas), s3(1)(c).
Bond v Johnson [2012] TASSC 81; Unsworth v Commissioner for Railways (1958) 101 CLR 73; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; Russell Young Abalone Pty Ltd v Traders Prudent Insurance Company Ltd [1993] TASSC 57, referred to.
Aust Dig Statutes [1148]

REPRESENTATION:

Counsel:
             Defendant:  B McTaggart SC
             Third Party:  P Jackson
Solicitors:
             Defendant:  Wallace Wilkinson & Webster
             Third Party:  M + K dobson mitchell allport

Judgment Number:  [2014] TASSC 16
Number of paragraphs:  30

Serial No 16/2014

File No 539/2006

MICHAEL FRANCIS PARKE v DAMIEN JOHNSON and DAVID BOND

REASONS FOR JUDGMENT  TENNENT J

4 April 2014

1. The plaintiff, Michael Francis Parke ("Parke"), was injured in an accident at the site of Cadbury's chocolate factory at Claremont on 20 March 2006. At the time he was employed by a labour hire firm, Storey's Maintenance Services Pty Ltd ("Storey's"). That company had contracted with Cadbury to provide labour for certain work to be done on its site. Cadbury contracted with another company, IRBH Pty Ltd ("IRBH"), to supervise the project being undertaken on its site and to supervise the workers engaged to work there. At the time of the accident, David Bond ("Bond") was a project manager employed by Cadbury. Damien Johnson ("Johnson") was a contractor engaged by IRBH. That company supplied his services to Cadbury. As at 20 March 2006, he was supervising Parke. On 18 March, IRBH had conducted a risk assessment of a suspended ceiling on the site, and determined it would not bear weight. A tape was erected, presumably to warn people not to go there.

2. On 20 March 2006, Parke fell through the suspended ceiling while working and was injured. Storey's commenced to pay workers compensation benefits to Parke. On 15 December 2006, Parke issued a writ claiming damages for personal injury. The defendants named in those proceedings were IRBH and Johnson. By consent on 27 November 2007, judgment was entered for IRBH, and that company ceased to be involved in the proceedings. On 29 October 2007, Johnson issued a third party notice to Bond. By that notice, he identified that Parke had brought an action for the claim set out in the writ and the statement of claim served with the notice, and that he sought to be entitled to contribution in the proportion of either 100% or such lesser amount as the Court might determine in respect of that claim.

3. On 9 April 2009, in a separate set of proceedings, Storey's sued Johnson for an indemnity pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s134, in respect of workers compensation benefits paid by it to or on behalf of Parke. In July 2009, in those proceedings, Johnson commenced third party proceedings against Cadbury. He sought contribution from Cadbury on the basis Parke's injury was caused by the negligence of Bond and, as his employer, Cadbury was vicariously liable for that negligence. In April 2011, also in those proceedings, Johnson sought leave to commence third party proceedings against Bond. Leave was given by the associate judge. That decision was successfully appealed (see Bond v Johnson [2012] TASSC 81), such that Johnson was not able to pursue Bond in those proceedings.

4. The action commenced by Parke against Johnson was settled, as was the proceeding commenced by Storey's against Johnson.

5. The issue remaining to be determined is whether Johnson may continue with the third party proceedings against Bond in the proceedings initiated by Parke. In August 2013, the practitioners for Bond and Johnson sought orders that the Court determine certain questions before those proceedings continued further. The orders made as a consequence of that request, made on 10 September 2013, require the Court to answer the following questions:

   "(a)     Did the amendments made to the Workers Rehabilitation and Compensation Act 1988, sections 138AA and 138AB by sections 35 and 36 of the Workers Rehabilitation and Compensation Amendment Act 2007 extinguish the Third Party proceeding, or is the Third Party proceeding preserved by Workers Rehabilitation and Compensation Act 1988, s138ABA (now repealed) as inserted by Workers Rehabilitation and Compensation Amendment Act 2007, s37.

   (b)       Is the indemnity paid by the defendant to the plaintiff's employer Storey's Maintenance Services Pty Ltd, in Action No. 283 of 2009 to be taken into account when assessing the third party's liability in the third party proceedings."

Johnson's third party proceedings

1. By the third party proceedings initiated by Johnson against Bond on 29 October 2007, Johnson sought contribution or indemnity from Bond in respect of his liability for the damage suffered by Parke. Such contribution or indemnity was sought pursuant to the Wrongs Act 1954, s3(1)(c). Section 3 relevantly provides:

   "3   Proceedings against, and contribution between, wrongdoers

   (1) Where damage is suffered by a person as the result of a wrongful act –

   ...

   (c) a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable;

   (d) a person may recover contribution or indemnity from another person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage by settling with the person by whom the damage was suffered and thereafter commencing or continuing an action against the other person, in which case the first-mentioned person shall satisfy the court that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.

   (e)       …

   (2) In proceedings for contribution under this section, the amount of the contribution that is recoverable from a person shall be such amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and, for the purposes of this section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity."

2. To succeed in his claim for contribution against Bond by reference to the Wrongs Act, Johnson must satisfy the Court that:

   -     damage was suffered by Parke,

   -     that damage was as a result of a wrongful act,

   -     Johnson was liable in respect of that damage, and

   -     Bond, if he had been sued by Parke when Parke's cause of action arose, would have been liable in respect of that damage.

3. It is that final condition which underpins the argument now before the Court, and it is affected by provisions of the Act.

Bond v Johnson [2012]TASSC 81

1. As I have already indicated, when Johnson initially sought leave to institute third party proceedings against Bond in the proceedings instituted by Storey's against him, the associate judge gave such leave. Bond appealed that decision and, on 4 December 2012, Blow J (as he then was) allowed that appeal, and dismissed Johnson's application for leave. Both counsel in the argument now before the Court, have referred extensively to his Honour's decision because it deals effectively with the same legislation, although against a slightly different factual background.

2. In his decision, his Honour dealt with what he described as the "Hypothetical liability of Mr Bond". His Honour said at [17] – [20]:

   "Hypothetical liability of Mr Bond

   17 If Mr Parke's accident had occurred before 1 July 2001, there would have been no impediment to him suing Mr Bond at common law for damages in respect of his injuries. If those injuries had been caused by negligence on the part of Mr Bond, then Cadbury would have been vicariously liable for damages as Mr Bond's employer. However Parliament decided in 2000 to reduce workers' rights to common law damages for work-related injuries. As a result, the WRC Act was amended by the Workers Rehabilitation and Compensation Amendment Act 2000, which commenced on 1 July 2001. The 2000 Act introduced some new provisions into the WRC Act – ss138AA and 138AB. Those new sections, when they applied, precluded a worker from commencing proceedings for damages unless certain steps were taken before proceedings were instituted. First, under s138AB(2), there had to be either an agreement between the worker and the employer, or else a determination by the Workers Rehabilitation and Compensation Tribunal, that the worker had a whole person permanent impairment of not less than 30%. Then, once there was such an agreement or determination, s138AB(1) required the worker to lodge with the tribunal an election to claim damages. That had to be done before court proceedings could be instituted.

   18 However there was a way to circumvent the new provisions. The wording of the new s138AB(1) limited its application to 'a worker who intends to seek damages against his or her employer'. Crawford J (as he then was) held in Cook v Miley [2007] TASSC 70 that that subsection did not place any restriction on a worker commencing proceedings for damages against an employee for whose acts the worker's employer, or a person deemed to be the worker's employer, was vicariously liable.

   19 As a result of that decision, Parliament amended the legislation retrospectively. The new amendments were effected by the Workers Rehabilitation and Compensation Amendment Act 2007, ss35 and 36. The words 'his or her employer' in s138AB(1) were replaced with 'an employer'. Section 138AA(3) was amended so that the words 'an employer' in the whole of Div2 of PtX, which included s138AB, included 'a reference to a person for whose acts the employer is vicariously liable'. By virtue of a definition of 'employer' in s132, which needed no amendment, the word 'employer' included a 'principal with a liability under section 29'. Typically, a principal liable under s29 is a company that has engaged a labour hire company whose employee is injured in the execution of the principal's work. Thus, the 2007 amendments spread the restrictions on workers' damages claims so that they applied to actions against individuals employed by their actual employers, and by s29 principals. Section 2(3) of the 2007 Act provided that those amendments were 'taken to have commenced on 1 July 2001'.

   20 However, in fairness to workers with pending actions in relation to injuries suffered on or after 1 July 2001, the 2007 Act inserted a provision exempting those workers' proceedings from the retrospective amendments. That provision was s138ABA of the WRC Act. It read as follows:

   'The amendments made to sections 138AA and 138AB by sections 35 and 36 of the Workers Rehabilitation and Compensation Amendment Act 2007 do not apply in respect of proceedings for an award of damages that were commenced, but not completed, before the day on which that Act received the Royal Assent.

   The 2007 Act received the Royal Assent on 31 October 2007. As I have said, Mr Parke's accident was in March 2006. If he had sued Mr Bond for damages before 31 October 2007, s138ABA would have prevented the amended ss138AA and 138AB from barring his action. But he did not sue Mr Bond in time, or at all'."

3. His Honour went on to conclude in his decision at [24] – [25]:

   "24 I think it is clear, with respect, that the learned associate judge erred in that paragraph in his approach to the retrospective amendments to the WRC Act. Section 2(3) of the 2007 Act provided that those amendments 'are taken to have commenced on 1 July 2001'. For the purpose of determining whether the requirements of s3(1)(c) of the Wrongs Act were satisfied, it was therefore necessary to take those amendments to have commenced on 1 July 2001. Section 138ABA created an exception in relation to proceedings that were in fact commenced before 31 October 2007, but not in relation to hypothetical proceedings that were not in fact commenced. To put it another way, when considering what the situation was when a cause of action accrued to Storey's, it was necessary to ignore the law as it in fact was, and to have regard to the law as it must now be taken to have been. In the words of Buckley LJ in West v Gwynne [1911] 2 Ch 1 at 12, s2(3) required 'that as at a past date the law shall be taken to have been that which it was not'. That is what the language of the 2007 Act expressly required: R v Kidman [1915] HCA 58; (1915) 20 CLR 425, per Isaacs J at 443; Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW) 27 at 30–31; Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285 at 309; State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465 at pars[1], [18].

   25 Section 3(1)(c) made it necessary to consider whether Mr Bond would, if sued by Storey's at the time when that company's cause of action under s134(1) arose, have been liable to Storey's in respect of the same 'damage', ie the economic loss suffered by Storey's as a result of it having to pay compensation. Any cause of action that Storey's had accrued to it when it first paid compensation, evidently before 31 October 2007. The rights of Storey's to recover an indemnity were governed by s134(1) as it read before the 2007 amendments. The amendment to that section effected by the 2007 Act did not operate in relation to earlier accidents or injuries: Fishpool v Incat Tasmania Pty Ltd [2012] TASSC 80 at pars[18] – [31]. Under the unamended s134(1), Storey's could recover an indemnity from Mr Bond only if the worker's injury was caused under circumstances creating a liability in Mr Bond to pay damages in respect of that injury. Because the 2007 amendments to ss138AA and 138AB were retrospective, the hypothetical liability of Mr Bond had to be determined by reference to those sections as amended. The retrospective amendments had had the effect of extinguishing any such liability. Applying the law as it must be taken to have been, Mr Bond had no liability to Mr Parke; Storey's therefore had no right to an indemnity from Mr Bond under s134(1); and Mr Bond therefore was not, within the meaning of s3(1)(c), a person who 'would, if sued by the person by whom the damage was suffered [Storey's] at the time when the cause of action arose [when the first compensation was paid], have been, liable in respect of the same damage [Storey's economic loss]."

Discussion

1. There is no dispute that:

   ·     Parke suffered damage as a result of a wrongful act within the meaning of the Wrongs Act, s3; and

   ·     Johnson is a person who is liable for that damage.

   Parke did not ever sue Bond in respect of that damage. The issue in the third party proceedings is whether Bond is a person who, by reference to the Wrongs Act, s3(1)(c), would, if he had been sued by Parke at the time when Parke's cause of action arose, have been liable in respect of the plaintiff's injury.

2. As Blow J said at [17] in Bond v Johnson, had Parke's accident occurred before 1 July 2001, there would have been no impediment to him suing Bond at common law for damages in respect of his injuries. Further, as his Honour said at [20], had Parke sued Bond prior to 31 October 2007, the Act, s138ABA, would have prevented s138AA and 138AB from barring his action. In those circumstances, recourse would not have been required to the Wrongs Act.

3. Because no proceedings were ever instituted by Parke against Bond, the only way any liability could attach to Bond was by way of recourse by Johnson to the Wrongs Act in third party proceedings. However, because Johnson's recourse to the WrongsAct involves a separate, though related, set of proceedings, the impact on those proceedings of the Act has to be considered. The issue now before the Court is whether the proceedings between Johnson and Bond are extinguished by the impact of the 2007 amendments to the Act, ss138AA and 138AB, or whether Johnson's right to pursue Bond has been preserved by the s138ABA exemption? It is necessary to consider what was intended to be achieved by s138ABA and, if it was intended to deal with the type of proceedings initiated by Johnson, are those proceedings for an award of damages?

4. Counsel for Bond submitted that s138ABA was never intended to deal with third party proceedings such as those now being considered, and that, in any event, even if it were, they are not proceedings for an award of damages.  

5. Counsel for Johnson submitted that, for the purpose of determining whether the third party proceedings are viable, the Court must consider the totality of the proceedings, that is Parke's action against Johnson and the third party proceedings, Johnson against Bond. He submitted that s138ABA does not limit the proceedings to which it refers to just the third party proceedings. Since clearly the action commenced by Parke was a proceeding for an award of damages which was commenced prior to 31 October 2007, s138ABA operated to allow the related third party proceedings to continue. In any event, he contended that the third party proceedings were in themselves a proceeding for an award of damages, and thus protected by s138ABA.  

6. What was s138ABA intended to achieve? Section 138ABA, prior to its repeal, was contained in PtX, Div2, of the Act. Part X was entitled "Concurrent rights to compensation and damages". Part X contained a definition section, s132. That section provided that, in PtX, unless the contrary intention appeared, certain definitions applied. There were definitions of the terms "employer" and "damages". The definition of the term "employer" was specifically extended in s138AA(3) by the 2007 amendments to the Act. By that section, the term "an employer" included a reference to a person for whose act an employer was vicariously liable. In s132, the term "damages" was defined to mean, "damages recoverable (whether by virtue of an enactment or otherwise) in respect of any civil liability in the employer, however arising". Section 138ABA formed part of PtX. Therefore, unless a contrary intention appeared, the definition of the term "damages" in s132 applied to s138ABA. There was no such contrary intention expressed in s138ABA.

7. Division 2 was entitled "Restrictions on awards of damages". It began with s138AA which commenced with the words:

   "This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker ...". 

   The words "awarding of damages against an employer" are significant. Section 138AB then provided for a procedure to be undertaken by a worker who intended to seek damages from an employer before any proceedings could be commenced. That section made no reference to anything which might apply to a claim by an employer against a third party for indemnity or contribution. It is clear from the wording of those sections that they were dealing with proceedings, or potential proceedings, by a worker against an employer to recover damages. What the 2007 amendments to ss138AA and 138AB did was to expand the protection afforded by the provisions to employers to those for whom those employers were vicariously liable. In this case, that was potentially Bond.

1. Section 138ABA, as Blow J recognized in Bond v Johnson at [20], was inserted to provide fairness to workers who had pending proceedings against "an employer" in respect of injuries suffered on or after 1 July 2001, which proceedings had not been completed. As his Honour said, s138ABA operated to exempt the proceedings commenced by the worker from the effect of the retrospective amendments. With respect, I agree with that view. It was the rights of the worker which were being dealt with by s138ABA, and not the rights of employers to contribution. It follows that I agree with the submission made by counsel for Bond that the object and purpose of s138ABA was to preserve only the accrued rights of a worker in pending proceedings against a person who might otherwise have been able to raise a defence, available by reference to the retrospective nature of the amendments to s138AA and 138AB, which defence that person did not have when the proceedings were commenced.

2. The worker in this case was Parke. He acquired a right to sue for damages.  Any proceedings commenced by him would have had the protection afforded by s138ABA had they been commenced prior to 31 October 2007. However, there were no pending proceedings by Parke (the worker) against Bond as at 31 October 2007 which could have attracted that protection. The only proceedings involving Bond were the third party proceedings initiated by Johnson.  Because of the view I have formed as to what s138ABA was intended to achieve, even were the Court to have regard to the totality of the proceedings as submitted by counsel for the defendant, that approach would still not assist him because there were never any proceedings by the worker against Bond.

3. If my view expressed above as to the intended effect of s138ABA is wrong, and it could be said the section was intended to apply to third party proceedings by reference to the Wrongs Act, those proceedings would still need to be categorized as "proceedings for an award of damages". Counsel for the defendant submitted that an action for an indemnity was an action for an award of damages. He submitted that the High Court found at [41] of Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520:

   "… that the phrase 'any proceedings for the recovery of debt or damages' embraces any proceedings in which a claim for money is made in the context of considering a claim for indemnity in respect of worker's compensation paid."

   With respect, what was said by their Honours in that case does not, in my view, necessarily assist counsel for Johnson. The case involved an application for an indemnity in respect of workers compensation payments which had been made. The Supreme Court Act 1986 (Vic), s60(1), provided that the court "on application in any proceeding for the recovery of debt or damages ..." must, unless good cause was shown to the contrary, give damages in the nature of interest. The judge at first instance made an order that an insurer was entitled to a declaration it be indemnified for certain payments. Interest was ordered. The Court of Appeal determined that interest under s60 should not have been allowed upon amounts to be paid by way of indemnity. The High Court held that the phrase "any proceeding for the recovery of debt or damages" in s60 should be understood as a composite expression that embraced any proceeding in which a claim for money was made. The additional claim for a declaration to determine the limit of the insurer's entitlement should not take the matter outside s60 with respect to money claims.

4. The High Court was dealing with the scope of the phrase "in any proceeding for the recovery of debt or damages", an entirely different phrase to that being considered here, and in the context of s60 in the Victorian Act, which dealt with an entitlement to interest.

5. Counsel also referred to remarks by Underwood J (as he then was) in Russell Young Abalone Pty Ltd v Traders Prudent Insurance Company Ltd [1993] TASSC 57. That case involved a claim under an insurance policy following the destruction of an insured property by fire. His Honour at [5] identified the fundamental problem in the proceedings as being a failure to come to grips with the distinction between a claim for an indemnity under a contract of insurance and a claim for damages at large following upon acceptance of wrongful repudiation. At [8], his Honour outlined what the distinction was. He said:

   "The nature of a claim against an insurer who fails to pay but does not repudiate the policy is discussed in F and K Jabbour v Custodian of Israeli Absentee Property (1954) 1 WLR 139 at 143 et seq. Pearson J examined a large number of authorities and concluded that such a claim is one for damages but that the expression has a different meaning in claims for a failure to indemnify under a policy of insurance, for the only wrong has been a failure to pay a sum due under a contract."

   Counsel submitted that the important point to be discerned from his Honour's comments was that a claim for indemnity was a claim for damages. That is not what is said. His Honour was dealing with the manner in which the court should determine what the plaintiff in that case should receive. He was dealing with a particular problem in that case, and did not make a general determination that in all cases a claim for indemnity was a claim for damages.

6. Counsel for Bond included in his list of authorities a decision of Unsworth v Commissioner for Railways (1958) 101 CLR 73. Before counsel for Bond could make any submissions in relation to that case, counsel for Johnson sought to distinguish it. He sought to do so on three bases. The first was that the subject matter of the case was personal injuries. The second was that the expression being dealt with there also included the words "or compensation", and the third was that the words used were "an action" to recover damages and not "proceedings".

7. When counsel for Bond came to refer to Unsworth, he submitted that the case was not distinguishable in any relevant sense. The case involved a claim by a widow for damages following the death of her husband at work.  She sued the driver of the car in which her husband died and also their employer, the Commissioner for Railways. Each of the defendants sought contribution from the other pursuant to The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld), s5. The wording of that section is almost identical to our WrongsAct, s3(1)(c). The court ordered that the widow receive damages, and apportioned them as between the defendants. The court also directed that, if the driver satisfied the judgment, he was entitled to recover a sum by way of contribution from the Commissioner. That sum was limited by reference to the Railways Acts 1914 to 1955 (Qld), s12. The driver appealed. He contended that the widow's action was not "an action brought against the Commissioner to recover damages or compensation in respect of personal injury" within the meaning of the Railways Act, and that therefore the provision in that Act which limited what could be recovered from the Commissioner did not apply. Alternatively, he argued that the claim for contribution was not itself a claim to recover damages or compensation in respect of personal injury.

8. Taylor J said at 91:

   "The next question is whether the appellant's claim against the commissioner was 'an action to recover damages in respect of personal injury'. Clearly it was not. The cause of action given by s 5 (3) of The Law Reform Act, is of an entirely different character; it is, in effect a claim for a partial indemnity, and, although one of the ingredients which must be established is that the person against whom the claim is made is a person 'who is, or would if sued have been, liable in respect of the same damage', it is in no sense an action to recover damages in respect of personal injury."

   Fullager J, at 86, made similar comments. While the distinctions drawn by counsel for Johnson exist, they are not such as to cause me to conclude the case should be distinguished.

9. Counsel for Bond also made a submission about the distinction between the term "damage" and the term "damages". He pointed out that s138ABA refers to "proceedings for an award of damages". It does not refer to "damage" which is the term used in the Wrongs Act. The term "damages" as defined in s132 is extracted at [17] of these reasons.  In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527, the High Court said about the distinction between the two:

   "Dillingham makes it clear that 'damage' in s5(1)(c) is not to be equated to the 'damages' awarded by a court. In negligence, 'damage' is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, 'damage' includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between 'damage' and 'damages' is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff, so that a single sum is awarded in respect of all the foreseeable consequences of the defendant's tortious act or omission. But concurrent tortfeasors whose negligent acts or omissions occur successively rather than simultaneously may both be liable for the same damage, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other."

   In that case, the court was again dealing with contribution claims.

10. It seems clear from the distinction drawn above that what s138ABA was dealing with were any proceedings in which a worker was seeking damages from an employer. It was not dealing with the concept of damage as provided for in the Wrongs Act.

11. I am satisfied in all the circumstances that the answer to the first question, in respect of which an answer is sought, is that the amendments made to the Act, ss138AA and 138AB, by ss35 and 36 of the 2007 amending legislation extinguished the third party proceedings.

The second question

1. It is not necessary, having regard to the answer to the first question, to answer the second question.