Kelman v Mutton; and Howard Haulage Pty Limited v Mutton

[2007] NSWSC 13

CITATION:	Kelman v Mutton; and Howard Haulage Pty Limited v Mutton [2007] NSWSC 13
HEARING DATE(S):	21/11/2006 22/11/2006
JUDGMENT DATE :	29 January 2007
JUDGMENT OF:	Sully J
DECISION:	Proceedings 20375 of 2004 - Verdict for cross-defendant on cross-claim for statutory contribution. Order cross-claimant to pay cross-defendant's costs of that cross-claim.; Proceedings 20156 of 2005 - Stand over to date to be fixed. Direct that counsel for the plaintiff and counsel for the defendants notify my Associate in writing, not later than 7 days from today, what course each proposes should be taken in these proceedings, particular regard being had to published reasons in associated proceedings 20375 of 2004. All ancillary matters reserved.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Occupational Health and Safety Act 2000 (NSW) Occupational Health & Safety Regulation Civil Liability Act 2002 (NSW) Workers Compensation Act 1987 (NSW) Motor Accidents Act 1986 (NSW)
CASES CITED:	Nevin v B & R Enclosures Pty Limited [2004] NSWCA 339 TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1 Qualcast (Wolverhampton) Limited v Haynes (1959) AC 743 Wilson v Tyneside Window Cleaning Co. [1928] 2 QB 110 Roads and Traffic Authority v Ryan: Blue Mountains City Council v Ryan (2005) 62 NSWLR 609 Lanza v Codemo [2001] NSWSC 72 Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Company Pty Limited (2001) 53 NSWLR 626
PARTIES:	Anthony Gordon Kelman v Hazel Mildred Mutton as Executors of the Estate of the late Maxwell Thomas Mutton & 3 ors. Howard Haulage Pty Limited v Hazel Mildred Mutton, Warren Lee Mutton & Neal Mutton as Executors of the Estate of the late Maxwell Mutton & anor.
FILE NUMBER(S):	SC 20375/04; 20156/05
COUNSEL:	D. J. Hooke - Howard Haulage Pty Limited N. E. Chen - Executors of Estate of Maxwell Mutton and Robert Mutton
SOLICITORS:	Kennedys - Cross-claimants in 20375/04; Defendants in 20156/05 Edwards Michael Lawyers - Cross-defendants in 20375/04; Plaintiff in 20156/05

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

29 January 2007

20375/04 – Anthony Gordon KELMAN v Hazel Mildred MUTTON as Executors of the Estate of the late Maxwell Thomas Mutton & 3 ors
20156/05 – HOWARD HAULAGE PTY LIMITED v Hazel Mildred MUTTON, Warren Lee MUTTON & Neal MUTTON as Executors of the Estate of the late Maxwell Mutton & anor.

JUDGMENT

Introduction

1 On 3 September 2001 Mr. Anthony Kelman suffered significant personal injuries in an incident that occurred during his normal performance of the normal duties of his then employment.

2 Mr. Kelman was employed, then and at all other material times, by Howard Haulage Pty Limited, an enterprise of which the principal relevant business was that of delivering consignments of grain to farming properties in rural New South Wales.

3 One such property was occupied and farmed by two brothers in partnership. They were Mr. Maxwell Mutton and Mr. Robert Mutton. It was on this property that Mr. Kelman was injured. When Mr. Kelman commenced, as in due time he did, proceedings claiming compensatory damages, Mr. Maxwell Mutton was deceased; and Mr. Kelman’s action was instituted, therefore, against the executors of his estate, as first defendants; and against Mr. Robert Mutton as second defendant. The Court file number of these proceedings is 20375 of 2004.

4 On 20 November 2006, the first day of the hearing before me, these particular proceedings were settled. The terms of that settlement were recorded in writing and handed up in Court; and formal judgment was given accordingly. That judgment was one in favour of Mr. Kelman for an amount of $650,000 plus costs and disbursements in an amount to be either agreed or assessed. It will be necessary to return later in these reasons to some consequences of that judgment.

5 The executors of the Estate of Mr. Maxwell Mutton, and Mr. Robert Mutton, instituted as cross-claimants proceedings by way of cross-claim against Howard Haulage Pty Limited. The relief thus claimed was:

“(a) Indemnity (or alternatively contribution) pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of any amounts (including costs) which the cross-claimant may be ordered to pay the plaintiff;
(b) Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW); and
(c) Costs.”

6 The cross-claim was defended; and its adjudication is one of two matters for ultimate decision by me.

7 The other of those matters is the adjudication of proceedings separately instituted by Howard Haulage Pty Limited as plaintiff against the executors of the Estate of the late Mr. Maxwell Mutton as first defendant; and against Mr. Robert Mutton as second defendant. The relief claimed in these proceedings is:

“(a) Indemnity from the Defendants pursuant to Section 151Z(1)(d) of the Workers’ Compensation Act 1987 (as amended) in respect of payments made by the Plaintiff to, for and on behalf of the worker pursuant to the provisions of that Act in respect of the said injury;
(b) Interest thereon pursuant to Section 100 of the Civil Procedure Act 2005; and
(c) Costs.”

8 The Court file number of these proceedings is 20156 of 2005. By consent, both sets of proceedings were heard together and on the basis that evidence in either would be evidence in both.

The Incident on 3 September 2001

9 It is convenient to begin by noting the relevant facts as pleaded by Mr. Kelman in his claim against the Mutton partnership:

“5 On 3rd September 2001 at about 7.30 a.m. the Plaintiff lawfully entered upon the land in performance of a contract driving a semi-trailer truck for the purpose of delivering a load of grain for use by the partnership in the said business.
6. In the course of the said business, the partnership instituted and maintained a system for receiving delivery of the said grain for the purpose of conveying it from the truck to a storage silo.
7. For the purpose of its system of receiving delivery the partnership provided and put in place certain plant and equipment including a hopper, an auger, a tractor, and a power take-off shaft to drive the auger by means of the tractor.
8. On the date and at the time aforesaid in the course of performing his ordinary work in relation to the delivery of the grain the Plaintiff’s clothing was drawn into a nipping point created at the junction of the power take-off shaft to the power input connection on the said auger causing him to be thrown violently to the ground by the powered rotation of the power take-off shaft and power input connection whereby he suffered serious injury, loss and damage.”

10 I am satisfied that what is there alleged is, at least in broad terms, accurate in fact.

11 There were only two direct witnesses of the incident, Mr. Kelman being one and Mr. Robert Mutton being the other. Both gave evidence at the hearing.

12 Mr. Kelman was, in my assessment, an impressive witness and I accept his evidence. He described having driven, on 3 September 2001, a truck-load of grain to the Mutton farm. The truck was a large vehicle comprising a cabin and a large trailer. His instructions, which came by telephone from Mr. Luke Howard of Howard Haulage Pty Limited, were to deliver a consignment of grain to the Mutton property, taking care to be there by 7.30 a.m.

13 Mr. Kelman arrived in fact at about 7.15 a.m. He had to begin the actual delivering of the grain by backing his vehicle over a distance of an estimated 70 to 80 metres. That brought the rear of the trailer to within about 2 metres of the machinery that was to be employed in the actual moving of the grain out of the trailer and into the silo where it was to be stored. Mr. Kelman then got out of the cabin, checked his position, and having satisfied himself that he was “lined up with the bin, the hopper, …….. (he) ….. got back in the truck and reversed it right back to the hopper”.

14 At that stage in the unloading of the grain the trailer containing the grain was upright and parallel to the ground. In order to commence the actual unloading, it was necessary for Mr. Kelman to operate something in the cabin so as to cause the front of the tray, - that is to say, the side closer to the cabin, - to rise; and to cause the back of the tray to incline into an appropriate angle with the ground. It was then necessary, and possible, to operate a handle that was situated on the driver’s side of the rear of the tray. That caused a so-called grain door, about 500 millimetres square and situated directly to the left of the handle, to open. Thereupon grain would begin to pour out of the trailer and into a hopper which formed part of the machinery that the Muttons had provided for use in the transferring of the grain from the hopper and into the storage silo.

15 Mr. Kelman commenced to carry out that procedure. As it progressed, he had to adjust, he thought “a couple of times”, the angle of incline of the tray so as to keep the flow of grain steady. After about an hour the unloading was in its final phase. That required Mr. Kelman to unhook, and then to throw up and away from him, a tarpaulin that was always used in order to cover the contents of the trailer, while those contents were in transit and until the final unloading phase was ready to be implemented. The tarpaulin having been thus cleared out of the way, the driver had to get up onto the floor of the trailer and sweep out through the grain door any remaining quantities of grain that had not otherwise been expelled through that door.

16 Mr. Kelman set about the unhooking of the tarpaulin, and it was during the course of his doing so that, as it would seem, part of his clothing became caught in the unguarded nipping point that is described in paragraph 8 of the statement of claim: see paragraph 9 above.

17 Mr. Kelman’s best description of what actually caused that to happen is as follows:

“HOOKE: Q. When you undid the hooks, was that from the rail running across the back of the trailer?
A. Yes.
Q. So, you were standing directly adjacent?
A. I was crouched down.
Q. You were crouched down?
A. When I undone the hooks.
Q. Facing the back of the truck?
A. That’s right.
Q. And you stood up and took one step back, did you?
A. Yes.
Q. Did you step back as you stood up or after you had stood up?
A. I don’t – I can’t tell you. I don’t know. I stepped back, I stepped back because I was under the truck. When they are up in the air, the back of them is on an angle and I stepped back and then straightened up to come out from behind the back of the truck.
Q. So, when you were crouched down, you would have been, subject to your body width, two metres from the clutch mechanism on the auger?
A. Yes, yes.
Q. And, then, as you have stood up, you have stepped backwards because of the angle of the back of the trailer, is that right?
A. Yes.
Q. Do you say that it was as you stood up and stepped back coming to the standing position that you came into contact with the auger.
A. Yes, yes.
Q. Wouldn’t you have to step back further than that to achieve a two metre backwards movement into the auger?
A. I don’t know. The body of the truck has 6-foot sides. I stepped back to clear the truck, so that was 6-foot back, and then I have stood up.
HIS HONOUR: Q. Just before you crouched down to undo the tray of the hopper, was that at an incline?
A. Yes.
Q. Where was the hopper?
A. Pretty well centred in the middle of the body.
Q. So, something like that?
A. Yes.
Q. And the bottom of the tray and the door in the middle, of course, up above the hopper?
A. Yes, directly above.
Q. With some space between the bottom of the tray and the notional top of the hopper, is that the way it goes?
A. Yes.
Q. The object of the exercise was to crouch down and unfasten along the bottom area?
A. Yes.
Q. How wide was the tray?
A. The width?
Q. Yes?
A. About 2.4 wide.
Q. Metres wide?
A. Yes.
Q. Are you able to me with the old measurement?
A. Eight foot.
Q. About eight feet.
A. Yes.
Q. About how wide was the top, the notional top, if you like, the width of the hopper?
A. Probably only about a metre.
Q. About three feet or so?
A. Yes.
Q. We are looking at five, 5 feet?
A. Yes.
Q. Two and a half feet each side, is that the way it goes?
A. Yes.
Q. When did you first crouch down?
A. On the left-hand-side, sorry on the right-hand-side, in the right-hand corner.
Q. Having, therefore, the hopper on your left?
A. Yes.
Q. The shaft, whatever it was, was behind you?
A. Yes.
Q. And some fasteners in front of you?
A. Yes.
Q. But down at an angle, so you had to get down to loosen them from below?
A. Yes.
Q. Did you actually get in the back line of the tray in order to undo the fasteners?
A. Yes, I undid them.
Q. Across in front of you, at least to the end of the hopper?
A. Yes.
Q. Suppose there had not been an accident, then you would have to go around to do the same thing on the other side?
A. Yes.
Q. What about unhooking anything in the part of the width of the tray that was actually over the hopper? I suppose you just reach over, is that the way you do it?
A. No. There is only three ropes on each side.
Q. Yes, because you have got the tray grain door in the middle?
A. Yes.
Q. So, you crouched down and you have undone the three ropes on the driver’s side?
A. Yes.
Q. And, as best you can tell us, you can’t get straight up or your head would hit the tray?
A. Yes.
Q. So, what you do, you take a movement backward until your head has cleared the tray, then you get up?
A. Yes.
Q. When you speak of taking a step back, do you mean to describe taking a step back in order to clear, in order that your head might clear the bottom of the tray, or do you mean you took a step back, crouched down and stood up and took a step back and then everything went blank?
A. No, I stepped back, then stood up.
Q. Having stood up, did you take another step, as best as you can tell me?
A. Yes.
Q. Two steps, one in a crouching position in order that your head would clear the end of the tray?
A. Yes.
Q. Then you straightened up?
A. Yes.
Q. One step back?
A. Yes.
Q. The object being, I would imagine, to take a hold of the tarpaulin to move it up and over?
A. Yes.
Q. Doing it by a simple flowing movement up?
A. Yes, it is.
HOOKE: Q. Had you thrown the tarpaulin up before you came in contact with the auger?
A. No.
Q. Do you remember feeling your body or any part of your body coming into contact with the auger?
A. No.
HIS HONOUR: Q. Did you feel anything against any part of your clothing?
A. No. I don’t remember a thing, your Honour.
Q. And you were never conscious after whatever happened until you woke up in the ambulance?
A. I just remember getting slid into the back of the ambulance and coming to in hospital that afternoon.
HOOKE: Q I take it your clothing was not flapping around this day?
A. No, no.
HIS HONOUR: Q. What actually were your wearing?
A. Jeans, a collared short-sleeve shirt, and a flannelette jacket.”

18 Mr. Robert Mutton, too, gave evidence in support of the cross-claim. His description of the incident needs to be understood as qualified by his admitted lack of precise recall of every relevant detail; but I see no reason for not accepting his evidence as honest and as reliable with that qualification.

19 In evidence-in-chief Mr. Mutton gave this description:

“Q. At some point did something happen in relation to the tarpaulin on the back of the truck?
A. Well, as the – as he finished getting near the end of the thing he must – he decided to open the – to take – roll the tarpaulin back a bit so he could get in and scoop the rest of the grain out of the back of the truck.
Q. Could you see him when he did that?
A. Yes.
Q. You’ve described earlier that the tarpaulin came around the three edges of the trailer?
A. Yeah.
Q. It certainly came around the back?
A. Mmm.
Q. Where did you see Mr. Kelman stand and remove the tarpaulin or attempt to remove the tarpaulin?
A. Would have been roughly in – in CC1 at the bottom of CC1, where I was standing.
Q. What did you see Mr. Kelman first do in relation to the tarpaulin?
A. He undone the – undone the ropes at the back of the trailer and he must have – it was a windy day so he must have stepped back --
OBJECTION
CHEN: I will approach it another way.
Q. If you don’t recall seeing something please say so, but if you could try, as best you can – I know it’s difficult, Mr. Mutton – to say what you saw. You’ve described initially Mr. Kelman removing some ropes?
A. I seen him remove the first rope and next thing I know he was lying on the ground on the op – underneath the shaft, on the PTO shaft, and all he had on was his boots.
Q. Did you see what caused him to be thrown from that position where he was standing attending to the tarp?
A. Part of his clothing got caught in the – in the rotating part of the auger.
Q. That is, the part that is now guarded?
A. Yes.
Q. In terms of, if you remember, exhibit CC1, the bottom photo where you’re standing with your dog, Robert?
A. Yeah.
Q. Mr. Kelman went from that position to which side of the power take-off shaft?
A. He went up over the top of it and had been on the – like straight over the – straight over the top of it.
Q. So he went and landed on the position on the other side of the power take-off shaft?
A. Yes.
Q. An ambulance was then called?
A. Yes.
Q. He was unconscious I think, was he not?
A. Yes, he was.”

20 In cross-examination Mr. Mutton elaborated a little and as follows:

“Q. Now, you said in answer to Mr. Chen earlier that when the accident happened you had seen Mr. Kelman remove the first rope and the next thing you knew he was lying under the PTO shaft and all he had on was his boots, do you remember that?
A. Yes.
Q. Do you remember seeing Mr. Kelman get caught by the clutch?
A. No, it happened that quick. It would have been a split second and it would have been all over.
Q. So, did you not see what part of his clothing it was that got caught in the clutch?
A. No.
Q. Do you remember seeing any particular movement of Mr. Kelman towards the clutch?
A. I seen him step back maybe, just a normal step back, and the next thing I remember he was laying on the ground.
Q. Was it a normal step back or was it a bit of a stumble?
A. A normal step back.
Q. He didn’t seem to you to lose his balance, at all?
A. No.
Q. Did you say anything to him, as he was moving back from the truck towards the clutch, to warn him about the machinery being behind him?
A. No, it happened that quick, I did not get a chance to.
Q. He covered a distance of a couple of metres?
A. No, it would not have been a couple of metres, it would only have been a couple of feet, a few feet.
Q. Didn’t you say to his Honour that the distance between the back of the truck and the clutch mechanism was about a couple of metres?
A. Yes.
Q. So, between moving from the back of the truck and coming into contact with the clutch, Mr. Kelman had covered something slightly under a couple of metres?
A. I suppose so, yes.
Q. A body width from front to back, less than a couple of metres?
A. Yes.
Q. And that was just a normal step back, you say?
A. Yes.
Q. And you did not perceive the need to warn him that he was moving back towards the clutch and the PTO?

A. No, I didn’t.”

21 Various aspects of Mr. Kelman’s employment with Howard Haulage Pty Limited will call for consideration in the context of the legal issues presented by the two sets of proceedings previously herein described; but the foregoing canvass provides a practical overview of the sequence of events on the ground, so to speak, leading up to the incident which resulted in Mr. Kelman’s injuries.

The Cross-Claim in Proceedings 20375 of 2004

22 Four questions arise.

23 The first question is whether the cross-claimants have established on the probabilities an entitlement, based upon common law principles, to statutory contribution, pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), (hereinafter the LR(MP) Act), from the cross-defendant.

24 The second question is whether the cross-claimants have established on the probabilities an entitlement, based upon breaches of the Occupational Health and Safety Act 2000 (NSW) (hereinafter the OHS Act), to any such statutory contribution from the cross-defendant.

25 The third question, which arises logically only in the event that either of the first and second questions is answered favourably to the cross-claimants, is as to the extent of any such statutory contribution by the cross-defendant.

26 The fourth question is as to the amount of damages by reference to which the quantum of any such statutory contribution as may be payable by the cross-defendant is to be calculated. This question must be addressed and resolved even in the event that the first and second of the stated questions should be answered adversely to the cross-claimants. The reasons for that are stated succinctly by Tobias JA, writing for the Court of Appeal of this Court, in Nevin v B & R Enclosures Pty Limited [2004] NSWCA 339 at paragraph 75:

“In my opinion, where the issue of damages in personal injury cases has been fully litigated, and there is at least a reasonable possibility that the trial judge’s decision on liability in favour of a defendant may be overturned on appeal, it is both just and convenient that the trial judge should proceed to assess damages to guard against the eventuality of a successful appeal. New trials limited to damages should if at all possible, be avoided by the trial judge taking this course even though he or she proposes to find in favour of the defendant on liability. In this way, the inevitable and ever increasing cost and expense of re-litigating the issue of damages, as well as any waste of the court’s time and resources, can be avoided.”

The First Stated Question

27 In considering how this question ought to be answered I have had regard to relevant passages in Clerk & Lindsell on Torts: 19th Edition; Munkman on Employer’s Liability: 3rd Edition; and Glass, McHugh and Douglas: The Liability of Employers: 2nd Edition. I have had regard, also, to the relevant portions of the reasons of Mason P in TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1; and of the reasons of Lords Radcliffe and Denning in Qualcast (Wolverhampton) Limited v Haynes (1959) AC 743.

28 Rather than quote extensively from those sources, I shall distil from them what I consider to be some propositions relevant in the instant case:

[1] Proof that two parties stand in the relationship to each other of, respectively, employer and employee is, without more, sufficient to impose upon the employer a duty of care towards the employee.

[2] The duty of care is a general duty “to take all reasonable steps to avoid risk to …… (the employee) . For convenience it is often split up into different categories, such as safe tools, safe place of work, or safe system of work; but it always remains one general duty” : per Parker LJ in Wilson v Tyneside Window Cleaning Co. [1928] 2 QB 110 at 116.

[3] The duty of care is owed to the employee personally and individually. Various consequences flow from that proposition. One is that the duty of care is, to use the conventional description, non-delegable. Another is that any particular allegation of breach of the duty gives rise to questions of fact particular to the individual employer/employee relationship.

[4] The concept of non-delegability entails simply this: that the employer is entitled to delegate to a third party the taking of whatever particular steps ought reasonably to be taken for the protection of the individual employee; but such delegation cannot abrogate in law the employer’s own responsibility to that employee should the delegate fail to take the reasonable protective steps that are warranted in the case of that employee.

[5] What is advanced in the concluding sentence of proposition [3] above is of great practical importance in any case in which an employee is alleging a breach of his employer’s duty of care. In order to explain why that is so, it is convenient to cite two short passages from the separate reasons of Lords Radcliffe and Denning in Qualcast :

“……..(H)owever much attention is concentrated in these cases upon the adequacy of the system of working at the place of work, actions of negligence are concerned with the duty of care as between a particular employer and a particular workman. An experienced workman dealing with a familiar and obvious risk may not reasonably need the same attention or the same precautions as an inexperienced man who is likely to be more receptive of advice or admonition.” (per Lord Radcliffe at 753, 754).
“My Lords, in 1944 du Parcq L.J. gave a warning which is worth repeating today: “There is danger, particularly in these days when few cases are tried with juries, of exalting to the status of propositions of law what really are particular applications to special facts of propositions of ordinary good sense.” see Easson v London & North Eastern Railway Co.
In the present case the only proposition of law that was relevant was the well-known proposition – with its threefold sub-division – that it is the duty of a master to take reasonable care for the safety of his workmen. No question arose on that proposition. The question that did arise was this: What did reasonable care demand of the employers in this particular case? That is not a question of law at all but a question of fact. To solve it the tribunal of fact – be it judge or jury – can take into account any proposition of good sense that is relevant in the circumstances, but it must beware not to treat it as a proposition of law.” (per Lord Denning at 759)

29 In applying the foregoing propositions to the facts and circumstances particular to the instant cross-claim, it is convenient to say, first, something on the topic of delegation of the relevant duty of care.

30 The cross-claim, as actually pleaded, does not allege, or appear otherwise to rely upon, any purported delegation by the cross-defendant to the Muttons of the former’s common law duty of care to its then employee, Mr. Kelman. The cross-claim, as pleaded, is formulated thus:

“5. At the time of the incident referred to in paragraph 8 of the second amended statement of claim, the plaintiff was working in the course of his employment with the cross-defendant, utilising its system of work .
6. As the plaintiff’s employer, the cross-defendant owed the plaintiff a duty to provide him with a safe system of work.” (emphasis added)

31 Paragraph 8 alleges a breach of the duty thus pleaded in paragraph 6 and provides the following particulars of the alleged breach:

“(a) Failing to provide the worker with adequate training;
(b) Failing to provide the worker with adequate clothing;
(c) Failing to provide the plaintiff with adequate instructions regarding the delivery of grain to the cross-claimant’s premises;
(d) Failing to provide the worker with a proper and safe system of work.”

32 A case pleaded in that fashion does not seem to me to assert a liability in the employer that depends in any way upon a purported delegation to another of the relevant duty of care. At least to that extent, the present case is not really analogous with, for example, the body-hire or labour-hire cases which have engaged in recent years the attention of the Court of Appeal of this Court; TNT Australia Pty Ltd. v Christie, referred to earlier herein, is an example of such a case.

33 In any event, the evidence makes clear, in my opinion, that the cross-claimants and Mr. Robert Mutton in particular, gave Mr. Kelman no instructions whatsoever as to where he was to go, or what he was to do, in unloading the consignment of grain into the hopper for subsequent transfer by means of machinery supplied by the cross-claimants and in no way operated by Mr. Kelman, into the storage silo.

34 That being so, the correct answering of the question now to be decided does not really depend upon what the cross-claimants unreasonably did, or failed to do, in connection with the unguarded mechanism in which Mr. Kelman’s clothing was caught. It depends, rather, upon what the cross-defendant unreasonably did, or failed to do, in that connection.

35 Upon that latter topic, I am satisfied on the probabilities of the following matters:

[1] Mr. Kelman was born on 24 January 1963. He was aged, therefore, 38 years and about 7 months on the day of his workplace injury.

[2] Mr. Kelman obtained a heavy driver’s licence shortly before either 1990 or 1991.

[3] Thereafter and until 1999, Mr. Kelman worked for various employers. His work entailed, relevantly, the driving of heavy vehicles.

[4] In 1999 Mr. Kelman took up employment with the cross-defendant. In that employment he was required to hold and did in fact hold a “B-double licence” , i.e. a licence to drive “a configuration of two trailers which come about 25 metres along” .

[5] During the material period of employment the cross-defendant operated about 30 trucks of various types and sizes. It employed in the order of 30 to 35 drivers. The effective proprietor of the cross-defendant was Mr. Les Howard. Mr. Howard’s two sons, Adrian and Luke, “used to work in the office allocating all the loads” .

[6] Mr. Kelman, during the course of his employment by the cross-defendant, delivered consignments of grain, of fertilizers, and of gravel. He was instructed by the relevant officers of the cross-defendant where to pick up, and where to deliver, any particular consignment.

[7] By the time Mr. Kelman began his employment with the cross-defendant he was a very experienced driver of heavy trucks such as the truck that he was driving on 3 September 2001.

[8] By that same time he was also well experienced in working with loads that were either loaded or unloaded by means of augers, that is to say, by means of machinery similar to the machinery that was in use at the cross-claimants’ farm on 3 September 2001.

[9] When Mr. Kelman applied for employment with the cross-defendant, he was interviewed by Mr. Luke Howard. There was a discussion of Mr. Kelman’s then experience. Mr. Kelman said in evidence that he had then made it “very clear to Luke Howard that ….. (he was) ….. a man who was heavily experienced both as a truck driver and in the use of augers and that type of equipment” .

[10] There was nothing about that auger which smacked of a latent trap or danger. The actual part of the auger in which Mr. Kelman’s clothes became caught was described by Mr. Mutton in his evidence as a clutch. It is illustrated in Exhibit CC2 which comprises three photographs showing, among other things, that clutch protected by a simple metal guard which was fitted after Mr. Kelman’s injury. Exhibit CC1, also a composite of three photographs, shows the situation of the clutch, similarly guarded, on the cylindrical shaft forming another part of the auger. It is in my opinion reasonable to infer that a person of Mr. Kelman’s height, experience and intelligence, and practical good sense, could not have been unaware that the clutch mechanism was rotating as an essential feature of the operation of the auger; that it was unguarded; and that he needed to be careful to keep his distance from it.

[11] As of 3 September 2001, Mr. Kelman was well aware that augers were a dangerous type of equipment. In this connection Mr. Kelman gave this evidence, which I accept:

“Q. Would you agree that augers are a dangerous form of equipment.
A. Yes.
Q. Why would you describe them as being dangerous?
A. Well, I’ve heard some stories about people getting caught in them and, yeah, if they don’t lose their life they lose limbs.
Q. Those were stories that you had heard before your accident, weren’t they?
A. Yes, yeah.
Q. One of the things that you were very much aware of every day that you went to work was the danger of you or part of your clothing being caught in an auger?
A. I didn’t sort of think about it every day but, yeah, it was always there when you – yeah.
Q. You were always conscious of it when you were working around, weren’t you?
A. Yes.
Q. Somebody saying to you every day when you got to work, “Watch out for the augers when you are out there on the road” wouldn’t have changed your awareness of those dangers, would it?
A. No, no.
Q. Similarly, somebody saying to you even every day, “Augers are dangerous and they can catch you or your clothing” wouldn’t have made you any more aware of the dangers of the machinery you were working with, would it?
A. No, no, I knew they were dangerous. Yes.
Q. You knew that they were something that you had to stay well clear of when you were working around them, didn’t you?
A. Yeah.
Q. When you went out to Muttons on 3 September 2001 that was just another day at work, wasn’t it?
A. Yes.
Q. What you were being sent out there to do in terms of the delivery and the use of the farmer’s auger to unload the grain was exactly what you did every other day at work?
A. Yes.
Q. Every day when you went to work and you took deliveries out to properties, the farmer would have his equipment there to unload the truck?
A. Yes.
Q. The farmer would set up the auger and the tractor for the unloading process?
A. Yes.
Q. The farmer would operate the tractor and the auger?
A. Yes.
Q. The farmer would stay with you at the truck during the entire unloading process?
A. Most of the time, yeah.
Q. There was never any time where you – certainly when you were working for Howard Haulage – had to operate the auger, was there?
A. No, no.
Q. You didn’t regard it as being any part of your job to have any involvement with the auger at all, did you?
A. No.”

36 As of 3 September 2001 Mr. Kelman had made deliveries for the cross-defendant to properties “all over New South Wales” and in both Queensland and Victoria. He had not himself made deliveries in South Australia but he was aware that other employee drivers had done so. Mr. Kelman agreed that “……… the range of deliveries that were made, or the range of destinations were spread far and wide all up the eastern half of Australia”.

37 As of 3 September 2001 Mr. Kelman was well experienced in unloading consignments from trailers that had been covered, during transit, by tarpaulins of the type in use on the particular vehicle that he was using on that day. In that connection Mr. Kelman gave the following evidence, which I accept:

“Q. You gave some evidence about the tarpaulin that was over the load and the way it was secured by ropes and rubbers and hooks on to a rail that runs around the base of the tray?
A. Yes.
Q. That was, in your experience, a standard type of tarpaulin fitting that was in use in the transport industry in 2001, was it?
A. Yes.
Q. Did you become aware in years following that of the use of tarpaulins which had a roller, if you like, so they could be wound back rather than having to be unclipped and thrown?
A. Yes.
Q. That type of tarpaulin wasn’t something which, to your observation, was in use in the transport industry at the time of your accident, was it?
A. They were just starting to come in.
Q. So it was the breaking out of the new technology about the end of 2001, was it?
A. Yeah, yeah.
Q. Then as years progressed after that they started to be introduced more widely through the industry?
A. Yeah, they’re pretty well it is self standard now, roll over tarps.
Q. As they emerged into usage Howard Haulage pretty much led the charge, did they, and introduced them on to their trucks?
A. Yes.”

38 The auger in use on 3 September 2001 was not unfamiliar to Mr. Kelman as a type of unloading equipment. It was, as he put the point: “….. just another auger”.

39 As of 3 September 2001 Mr. Kelman had received no particular safety training or instructions from the cross-defendant. He gave on that topic this evidence, which I accept:

“Q. Prior to 3 September 2001, had you ever been to the Mutton Bros. farm to deliver grain?
A. No.
Q. Had you been there for any other reason?
A. No.
Q. Did Mr. Howard tell you anything what to expect when you attended Mutton Bros farm on 3 September 2001?
A. No.
Q. At any time during the course of your employment with Howard Haulage, up to the time of the accident, were you given any instructions about how to go about unloading grain when making deliveries to the farms?
A. No.
Q. Were you given any training about how to safely unload at farms?
A. No.
Q. At any time prior to you delivering the grain to the Mutton Bros. farm on 3 September 2001 were you given any instruction about when to remove the tarpaulin?
A. No.
Q. At any time during your employment up to September 2001 were you given any instruction or warnings about working near machinery, augers, power take-off shafts?
A. No.
Q. Were you given any safety training at all while you were in the employment of Howard Haulage?
A. No.”

40 All of the foregoing facts and circumstances concern the position obtaining on 3 September 2001 as between the cross-defendant and Mr. Kelman. The overall picture thus painted is in my opinion one of a sensible, experienced and reliable employee making a routine delivery of what was in his own perception, and I infer in the perception also of the relevant servants and agents of the cross-defendant, an unremarkable consignment which would be unloaded in an unremarkable way and into machinery supplied by the cross-claimants, being machinery of a kind with which he was familiar and the potential dangers of which were well known to him.

41 It is necessary, next, to look more precisely at the position obtaining on 3 September 2001 as between the cross-defendant and the cross-claimants. Upon that topic I am satisfied on the probabilities of the following matters:

[1] The cross-claimants had been regular customers of the cross-defendant for about 22 years. Whenever the cross-claimants needed a consignment of grain, a telephone call was placed to the cross-defendant; an order would be placed; and shortly thereafter the cross-defendant would notify by telephone the proposed time and date of delivery. This happened “….. round about four to five times a year” .

[2] Throughout the whole of that 22 years or thereabouts the machinery in use on 3 September 2001 had been routinely used as the means of transferring grain from a delivery truck and trailer into the storage silo. Prior to Mr. Kelman’s injury it had never occurred to Mr. Robert Mutton that the unguarded clutch might be an occasion of harm.

[3] In connection with that perception on his part, Mr. Mutton gave as his first responses in cross-examination the following evidence which I accept:

“HOOKE: Q. Mr Mutton I take it from the last answer but one that you gave, which was that until Mr. Kelman came to grief that it never occurred to you that the clutch was a potential source of danger, that had someone from Howard Haulage rung you up and asked whether there were any risks to their personnel coming out to deliver grain to you, your answer would have been a quite clear no, is that right?

A. That’s right.
Q. You wouldn’t have left them in any doubt, would you that your premises were perfectly safe for their drivers to come out and unload using you equipment, would you?
A. No.”

42 In a written outline of submissions, learned counsel for the cross-claimants put that, speaking generally, the cross-defendant was in breach of its common law duty of care to Mr. Kelman: first, because it had permitted him to work around unguarded machinery; and secondly, because it had failed to provide a safe system of work “in relation to the removal of the tarpaulin from the truck prior to the removal of the grain”. I take the second particular to convey that a safe system of work would have entailed a requirement by the cross-defendant that any driver in Mr. Kelman’s position would remove the tarpaulin prior to commencing the process of removal of the grain.

43 More discursive written submissions developed in greater detail the outlined general thrust of the cross-claimants’ case. It was submitted that the instant case: “is simply a case where the employer simply left the plaintiff to his own devices”.

44 Five particular submissions are then advanced: first, that the cross-defendant permitted the plaintiff to work in the vicinity of unguarded machinery, not on an isolated and unusual occasion, but routinely over a period in the order of 20 years; secondly, that the routine use by the cross-claimants of such unguarded machinery was a deficient system that was “used and adopted (perhaps by the defendant) by” the cross-defendant. Thirdly, that the attitude of the cross-defendant to the potential dangers to its employees by reason of the proximity of unguarded machinery, was flagrantly uncaring; fourthly, that the cross-defendant had failed to give Mr. Kelman “directions and instructions about not approaching the rear of the truck to remove the tarpaulin whilst the ……… machinery was in operation”; and fifthly, that the cross-defendant had failed “to give instructions and directions to ….. (Mr. Kelman) ….. to remove the tarpaulin prior to commencing the unloading process”, something which Mr. Mutton had said in unchallenged evidence had done by all other drivers making similar deliveries to the delivery of 3 September 2001.

45 None of those five particularised submissions deals with the particular 8(b) as pleaded, i.e. failing to provide the worker with adequate clothing”. It suffices to say that there is in my opinion no evidence capable of substantiating that allegation.

46 As to the five matters particularised in the written submissions, I preface a discussion of them by referring to the reasoning that underpins the decision of the English Court of Appeal in Wilson v Tyneside Window Cleaning Co [1928] 2 QB 110. I do so, not because that reasoning exposes some novel proposition of law, but because the reasoning is, with respect, a paradigm example of the importance of practical common sense in the adjudication of such a claim as that of the present cross-claimants. I refer to, but need not quote in detail, what is said by Pearce LJ in the paragraph commencing at 121.5; and the entirety of what is said by Parker LJ at 125 and 126.

47 As to the first and second of the cross-claimants’ submissions, it seems to me that there is, with respect, a common-sense gap in the reasoning. That gap derives from the absence alike of any allegation, and of any evidence capable of supporting an allegation, of any prior knowledge whatsoever in the cross-defendant of the existence of the unguarded clutch, let alone of anything more particular about its operation and about any resulting reasonably foreseeable dangers to Mr. Kelman on 3 September 2001.

48 I apprehend that the response of the cross-claimants would be, - indeed, must be in the absence of any evidence of actual prior knowledge, - that the cross-defendant ought to have had that knowledge because it ought to have made it its business to inquire, to inspect, or both to inquire and inspect, with at least some regularity. I apprehend that the short answer to such an argument is that there is no evidence to support it: no evidence of warnings; no evidence of some other facts or circumstances such as reasonably to put on notice of existing or potential avoidable risk; and no evidence of any relevant industry, or indeed industrial, practice. On the given facts of this case it seems to me to be, with respect, as artificial and unconvincing as it was in the broadly comparable context of Wilson (above) to rely on what I might call imputed or constructive relevant knowledge.

49 I would reason to the same general effect about the fourth and fifth of the cross-claimants’ submissions; but I would observe additionally that Mr. Mutton, who was called by the cross-claimants, said in terms that the way in which Mr. Kelman went about rolling back the tarpaulin seemed to him to be “a perfectly sensible and reasonable way of doing the job”. There is, also, the uncontradicted and unchallenged evidence of Mr. Kelman himself about the steps taken voluntarily by the cross-defendant to adapt to the use of, and to adopt, alternative methods of rolling tarpaulins: the evidence is at T 85 and I have earlier herein quoted it in detail.

50 The remaining, and third of the cross-claimants’ five submissions is shortly answered, in my opinion, by observing that there is no evidence whatsoever from which I would think it reasonable to infer that the pre-3 September 2001 attitude of the cross-defendant towards its drivers in general, or Mr. Kelman in particular, was either simply uncaring or off-handed in any other relevant sense.

51 For the whole of the foregoing reasons I answer adversely to the cross-claimants the first of my four stated questions.

The Second Stated Question

52 The cross-claim pleads, in its paragraph 7, a duty allegedly owed by the cross-defendant to Mr. Kelman “…… to comply with the provisions of the Occupational Health & Safety Act 2000 (NSW) ……and the Occupational Health & Safety Regulation 2001 (NSW)”. The cross-claim pleads, in its paragraph 9, breach on the part of the cross-defendant of its said statutory duty. The following particulars are enumerated:

“(a) Contrary to section 8(1) of the Act, the cross defendant failed to ensure the health, safety and welfare of the plaintiff at work;
(b) Contrary to clause 9 of the Regulation, the cross defendant failed to take reasonable care to identify a foreseeable hazard that may arise from the cross-defendant’s business and had the potential to harm the health or safety of the plaintiff, in particular, hazards arising from:
(i) the work premises (clause 9(2)(a));
(ii) work practices and work systems (clause 9(2)(b)) ;
(iii) plant (clause 9(2)(c)); and
(iv) the physical working environment and contact with moving objects (clause 9(2)(i)(v).
(c) Contrary to clause 45(a) of the Regulation, the cross defendant failed to ensure that sufficient working space was provided to the plaintiff to allow him to work safely; and
(d) Contrary to clause 136(3)(d) of the Regulation, the cross defendant failed to control the risk of entanglement in the moving parts of the auger by persons passing in close proximity to it by guarding that met the requirements of clause 90(1).”

53 The Occupational Health & Safety Act, (hereinafter the OHS Act), came into operation on 1 September 2001, two days prior to Mr. Kelman’s work-place injury. The Occupational Health & Safety Regulation, (hereinafter the OHS Regulation), came into operation simultaneously with the OHS Act. The hearing of the instant cross-claim proceeded upon the common assumption of the parties that an employee is entitled to bring a civil action against an employer whose breach of duty under either the OHS Act or the OHS Regulation has occasioned personal injury to the employee.

54 Section 4 of the OHS Act, the Act’s general definitions section, defines both of the descriptions “employer” and “employee”. The cross-defendant undoubtedly satisfied the description of “employer” vis a vis Mr. Kelman as “employee”.

55 That being so, there rested upon the cross-defendant vis a vis Mr. Kelman the statutory duties imposed by section 8(1) of the OHS Act upon any employer vis a vis any employee. Section 8(1) provides:

“ 8 Duties of employers
(1) Employees
An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:
(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,
(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,
(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,
(e) providing adequate facilities for the welfare of the employees at work.”

56 Section 8 is the commencing section of Part 2 of the OHS Act. The concluding provision of Part 2 is section 32 which provides:

“ 32 Civil liability not affected by this Part
(1) Nothing in this Part is to be construed:
(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or
(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.
(2) Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).”

57 It seems to me that, notwithstanding the stance taken at the hearing by both the cross-claimants and the cross-defendant, section 32 plainly excludes any right in an employee to bring against his employer a civil action at law to recover damages in compensation of injury suffered as a result of a breach of section 8(1).

58 There is no comparable exclusion in respect of, relevantly, the provisions of the OHS Regulation upon which the cross-claimants now rely.

59 There are six such particular provisions of the OHS Regulation.

“ 9 Employer to identify hazards
(2) In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from:
(a) the work premises, and
(b) work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards), and
(c) plant (including the transport, installation, erection, commissioning, use, repair, maintenance, dismantling, storage or disposal of plant).
(i) the physical working environment (including the potential for any one or more of the following:
(v) contact with moving or stationary objects,
45 Working space – particular risk control measures
An employer must ensure that:
(a) sufficient working space is provided to allow persons to work safely.
136 Use of plant – registration requirements and particular risk control measures
(3) An employer must ensure in relation to use of plant that:
(d) if it is not possible to eliminate the risk of entanglement in plant with moving parts, persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90 (1) or the use of a safe system of work.”
90 Guarding – particular risk control measures
(1) A designer of plant must ensure that any device that prevents or reduces access to a danger point or area:
(a) is designed to be a permanently fixed physical barrier or, if access to the danger point or area is required during normal operation, maintenance or cleaning:
(i) is designed to be an interlocking type physical barrier, or
(ii) is a presence sensing safeguarding system, and
(b) is designed to make by-passing or defeating it, whether deliberately or by accident, as difficult as is reasonably possible, and
(c) is designed to be of solid construction and securely mounted so as to resist impact and shock, and
(d) is designed so as not to cause a risk itself.”

60 Insofar as the cross-claim is rested upon alleged breach of any or all of the nominated parts of clause 9, I am of the opinion that the cross-defendant did take reasonable care to identify a foreseeable hazard. The relevant considerations in that connection have been canvassed in the earlier discussion of the first of my four stated questions and I need not add now anything further.

61 The alleged breaches of clauses 45(a) and 136(3)(d) are not so readily adjudicated. That is so because the obligation which is cast upon a relevant employer is cast in terms requiring that the employer “must ensure” that something prescribed in particular is in fact done. The considerations which are then brought into play are summarised succinctly in the following passages in Glass, McHugh and Douglas: op.cit. at 120:

“ (ii) Breach
It need hardly be said that, before the plaintiff can succeed, he must show that the defendant was in breach of his duty. What amounts to a breach of duty will depend upon the terms of the statute imposing the duty. The extent of the duty will, therefore, be a matter of construction. Reference has already been made to the fact that the duty is sometimes qualified by phrases such as “so far as is practicable”, “so far as is reasonably practicable”. The evidence in such cases to prove non-compliance will be more extensive. However, once non-fulfilment of the statutory requirement is proved, liability for breach strictly follows. In interpreting the statute the ordinary rules of statutory interpretation apply. In particular, since most statutes imposing duties provide penalties for their breach, they are technically penal statutes and must be construed strictly. When the wording of the statute is ambiguous the “strict construction” rule requires that the narrower meaning be given to the legislation. However, in construing statutes such as the Factories and Shops Acts, Construction Safety Acts and other such Acts, the “strict construction” rule has little application. This is because such Acts are usually remedial legislation and must be read so as to enable their objects to be carried out so far as the wording of the legislation permits. It is illicit to construe a statute whose dominant purpose is to protect the workman by importing words the effect of which must be to reduce that protection.”

62 On the approach thus explained, it is necessary to ask whether the cross-claimants, as the parties bearing the relevant onus, have proved on the probabilities that there has been “non-fulfilment of the statutory requirements”. As to both of clauses 45(a) and 136(3)(d), it seems to me that it cannot be sufficient to approach the foregoing question upon the footing that because there was an accident on the particular occasion, then there is without more a prima facie case of breach, let alone a concluded such case. It is necessary to juxtapose the particular statutory requirement, correctly construed, with the facts and circumstances of the particular accident, correctly found by reference to evidence; and then to make a fair, sensible finding on the issue of alleged breach of statutory duty.

63 So far as concerns clause 45(a), I am not satisfied that the cross-claimants have proved breach of the particular statutory duty. The evidence as to spaces and distances is inexact; but, such as it is, it does not satisfy me that the space allowed between the rear of the discharging tray and the moving parts of the unguarded clutch was insufficient to allow Mr. Kelman to do his work safely.

64 So far as concerns clause 136(3)(d), the alleged breach as actually pleaded sets up a contravention of one only of two ways in which a relevant employer can lawfully deal with a situation in which “it is not possible to eliminate the risk of entanglement in plant with moving parts”. I have previously found that the system of work provided by the cross-defendant for Mr. Kelman was, in my opinion, not an unsafe system. That finding suffices, in my opinion, to satisfy the requirements, incompletely pleaded, of clause 136(3)(d).

65 For the whole of the foregoing reasons I answer adversely to the cross-claimants the second of my four stated questions.

The Third Stated Question

66 Given the answers to the first and second questions, this third question does not arise. I propose, therefore, to say nothing particular about it. I do not perceive that in taking that course I transgress the opinion, previously cited herein, of Tobias JA in Nevin v B&R Enclosures Pty Limited. I can see, with respect, the sense of having a trial Judge say: “I find for the defendant and therefore award no damages; but had I found for the plaintiff I would have assessed the damages in this particular amount and by this particular method”. I can see no sense at all in saying: “I find that in the circumstances of this case there is no basis for apportioning liability between the cross-claimants and the cross-defendant; but, in case it should be held that I am in error in that connection, I now nominate the following circumstances as justifying an apportionment of this or that particular extent”.

The Fourth Stated Question

67 ‘Mr. Kelman, in his action against the cross-claimants, was entitled, if at all, to damages assessed in accordance with the Civil Liability Act 2002 (NSW). Such damages covered, albeit with particular statutory caps, the conventional heads of damage, both general and special, proper to an action at common law brought to recover compensatory damages for personal injury.

68 Were it not for some difficult complications enacted in the Workers Compensation Act 1987 (NSW), as subsequently amended in 1995, (hereinafter the WC Act), it would be the case that the cross-claimants, if successful in their claim for contribution from the cross-defendant, would have been entitled to recover as such contribution a proportion, expressed in percentage terms, assessed by the Court as a just and reasonable proportion of the damages recovered by Mr. Kelman in his separate action against the cross-claimants. That would have entailed in the instant case the application of the assessed percentage to the sum of $650,000. (For the sake of simplicity I will not make repeated reference to the interest and costs that are to be added to Mr. Kelman’s verdict.)

69 That straightforward common law compensation structure has been altered by, in particular, Part 5 of the WC Act. One of the constituent sections of Part 5 is section 151Z. The purpose of section 151Z is to provide for a case in which an injured worker has, in respect of his injuries, a claim against both his employer and “some other person than the worker’s employer”.

70 The relevant provisions of section 151Z are:

“(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;
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise – the indemnity referred to in subsection (1)(d) is for the amount of the excess only; and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution – subsection (1)(d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.”

71 The reference in sub-section (2)(d) to Division 3 of Part 5 brings into play a concatenation of statutory provisions that are designed to restrict antecedent common law rights of, relevantly, employees who suffer work, - or work-place, – related personal injury.

72 Of the various particular provisions that make up Division 3, the following are relevant in particular in the instant case:

“ 151F A court may not award damages to a person contrary to this Division.
151G (1) The only damages that may be awarded are:
(a) damages for past economic loss due to loss of earnings, and
(b) damages for future economic loss due to the deprivation or impairment of earning capacity.
(2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897.
151H (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.
NOTE: Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.
(2) In assessing whether the 15% threshold has been met (that is whether the degree of permanent impairment resulting from an injury is at least 15%):
(a) impairment resulting from the physical injury is to be assessed separately from impairment resulting from psychological injury, and
(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury; and
(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.
NOTE: This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.
(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.
(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(5) In this section:
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”

73 In the context of this somewhat disheartening statutory maze it is, perhaps, unsurprising that the competing submissions of the cross-claimants and of the cross-defendant offer starkly contrasted methods of escape from the maze.

74 The essence of what is put for the cross-claimants is distilled into the following written submissions:

“29. It is submitted that, in the proceedings for contribution, Howard Haulage is liable to contribute to the damages paid by Mutton Brothers to the plaintiff. The only limit upon the order for contribution is that Howard Haulage cannot be ordered to contribute more than their overall liability in damages to the plaintiff. This limitation therefore requires the Court to determine the plaintiff’s notional entitlement to damages against Howard Haulage.
41. In this case, however, section 151Z(2)(d) needs to be considered. This section, by its terms, requires the apportioned sum 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” . This section means that the apportionment that Mutton Brothers is entitled to is determined not from the judgment amount that was entered; rather, it is determined from a notional assessment of Part 5 damages: see Lanza v Codemo [2001] 845 per Wood CJ at CL at [204].
42. In this case, therefore, Howard Haulage is required to contribute towards the damages (and costs) that Mutton Brothers has paid to the plaintiff but assessed under Part 5 of the Workers Compensation Act.”

75 How this might work out in actual dollar figures is distilled into the following part of the written outline:

76 “SCHEDULE OF DAMAGES: WORKERS COMPENSATION ACT 1987

Multiplier to age 65 (21 years): 685.6
Date of Birth: 24.1.63

Age at DOA (in years): 38

Age at trial (in years): 43

Life expectancy (in years) 35.9

Life expectancy multiplier: 884.8

Past economic loss	155,270.00	180,990.00
Future economic loss	291,380.00	349,656.00
Past superannuation	15,527.00	18,099.00
Future superannuation	32,518.01	39,336.30
Fox v Wood	17,730.00	17,730.00
TOTAL:	$512,425.01	$605,811.30


1. past economic loss has been calculated as follows:
a. 4/9/01 – 26/11/01 – total. This is 12 weeks. Net wages of $895 per week have been used. This amounts to $10,740.00.
b. 27/11/01 – 20/12/02 – partial. This is 56 weeks – the end date being the date of termination. I have used $495 npw loss. This amounts to $27,720.
c. 21/12/02 – to date. This is 204 weeks. This is calculated the net weekly loss at between $600 and $700. This amounts to $122,400 and $142,800.
2. future loss of earning capacity has been calculated at $500 - $600 with a 15% discount for contingencies.
3. past superannuation has been approximated at 10% on the net loss.
4. future superannuation has been calculated on a (approximate) gross weekly loss between $620 and $750 at 9%.
5. The Fox v Wood figure is as from the list of payments.”

77 Any such calculation assumes, of course, that Mr. Kelman had he sued the cross-defendant to judgment, could have cleared the 15 per cent hurdle that is posed by section 151H. I am satisfied that he could have done so. I apprehend that no argument of substance was advanced to the contrary by the cross-defendant.

78 The essence of what is put by the cross-defendant is distilled into the following parts of the written outline:

“9. Under the new regime of Work Injury Damages which is applied to proceedings commenced since 27 November 2001, the principle of justice and equity required to be applied in determining contribution under Section 5 of the Act requires not only a just and equitable apportionment of causal culpability but also that the assessment of work injury damages by which the amount of contributions is calculated must also be proportionate to the cross claimant’s liability to pay damages of all kinds. In the present case, the cross claimant’s contention in relation to the quantum of work injury damages does not bear such proportionality.
10. The cross claimant seeks to invoke a statutory mechanism for recovering contribution on a just and equitable basis. It is submitted that in so doing it behoves the cross claimant to offer justice and equity if it wishes to seek it. On the cross claimant’s case against the cross defendant it would seem that the cross claimant regards itself as having secured a most advantageous settlement with Mr. Kelman. If that is so, it must pass the benefit of that advantage to any other party from whom it seeks contribution. The right to claim contribution under the statute is a right to claim contribution towards the liability to pay damages. It is not a right to claim contribution towards the damages Mr. Kelman might have received had he run his case to judgment rather than entering into the consent judgment.
13. It is submitted that to merely make an assessment of Mr. Kelman’s damages for economic loss without ensuring proportionality and consistency with the consent judgment and its contents, justice and equity cannot be done.
14. It is known that the past out of pocket expenses paid by the workers compensation insurer and which must have formed part of the consent judgment total $56,537 (leaving out cents). Mr. Kelman gave evidence that the only ongoing medical treatment he has consists of visits to his general practitioner every couple of weeks (T 93/55) and it is agreed that those consultations will cost him $50 each. The 5% multiplier over Mr. Kelman’s life time (according to the cross claimant’s schedule of damages) is 848.8. The visits to the general practitioner therefore capitalised in the sum of $22,120.00. Mr. Kelman takes medication which costs him between $50 - $55 every three weeks (T 93/33) and that regime has been constant for some time. He does not see it changing. At the rate of $17 per week over Mr. Kelman’s life time the capitalised cost of medication is $15,042.00. Mr. Kelman’s son mows the lawn for him and it takes a good 3 hours to do it in one go. If his 19 year old son was not living with him Mr. Kelman would have to get someone in to mow the lawn for him and it is agreed that it would cost $30 per hour to do so. The lawn needs to be mowed every 2 weeks in summer and every 3 – 4 weeks in winter. Averaging 1 hour per week over Mr. Kelman’s lifetime the cost of such lawn mowing assistance is capitalised in the sum of $26,544.00. Mr. Kelman’s evidence in relation to lawn mowing is at T94/56 – 95/13. That he is entitled to have his future need for such assistance compensated on a commercial basis rather than being dependent upon the goodwill of family and friends is clear from Van Gervan v Fenton (1992) 175 CLR 327 at 335.6 – 336.7.
15. Deducting those amounts from the consent judgment of $650,000 leaves a residual sum of $529,757.00. That sum must then be comprised of non economic loss and economic loss due to loss of earning capacity. It is submitted that the Court must make some assessment (as best it can on the evidence) of what might have been allowed for non economic loss. That assessment is to be undertaken in accordance with Section 16 of the Civil Liability Act 2002 by assessing Mr. Kelman’s injuries as a proportion of “a most extreme case” and applying that assessment to the maximum amount recoverable in the manner required by the Section. The maximum amount presently recoverable for non economic loss is $427,000.00. It is submitted that Mr. Kelman’s injuries would warrant an assessment for non economic loss in the range of 40% - 50% of “a most extreme case”. An assessment of 40% of “most extreme case” would result in an allowance for non economic loss of $171,000.00 and an assessment of 50% of “a most extreme case” would result in an allowance of $213,500.00. Assuming an allowance for non economic loss at the bottom of the suggested range (ie $171,000) the amount contained within the consent judgment for economic loss due to loss of earning capacity can be no more than the residual sum of $358,757.00 which is derived by deducting $171,000.00 from $529,757.00.
16. It is submitted that whilst the Court must make its own assessment of the damages Mr. Kelman would have recovered as a result of an assessment in accordance with Division 3 of Part 5 of the Workers Compensation Act 1987, when the governing principle of “just and equitable” in Section 5 of the Act such an assessment should be “capped” in the amount of $358,757.00, for that is the extent of damages of the kind for which the cross defendant could be liable which the cross claimant is to pay to Mr. Kelman.”

79 The assessment of the respective legal merits of these two contrasted approaches is particularly affected by: first, certain curial decisions; and secondly, by the fact that the claim made by Mr. Kelman against the cross claimants was settled rather than adjudicated.

80 If both of these factors be set to one side for the moment, and if attention be paid only to the relevant provisions of the WC Act, then I would have thought that an appropriate judicial method would have been somewhat as follows:

Step 1: Assuming that the issue of liability had been decided in favour of Mr. Kelman as against the cross-claimants, how were his unrestricted common law damages to be quantified in dollar amounts? This must have entailed the identification of each compensable head of damage and the allocating to each head of damage of a money value. This would have identified in turn:

(a) the final amount of the unrestricted common law damages that the cross-claimants must pay to Mr. Kelman; and
(b) the assessed amount attributed to, in particular, the only two heads of damage that are recoverable in proceedings governed by Part 5 of the WC Act.


Step 2: Assuming that it were then found that the cross-defendant was liable, as a joint tortfeasor, to make some just and equitable statutory contribution to the payment of the damages for which the cross-claimants had been held primarily liable to pay Mr. Kelman, what level of such contribution should be set? It would be appropriate to express that level in terms of a percentage figure.

Step 3: Apply that percentage figure to the amount identified in Step 1 (b)above. The resulting figure would be the amount that the cross-defendant should be ordered to contribute to the payment of the damages payable by the cross-claimants to Mr. Kelman. It would seem to me that this step would conform precisely to the plain words of section 151Z(2)(d) of the WC Act.

81 The cross-claimants, as I apprehend their argument, (but still leaving aside the effect, if any, of a settlement of the principal proceedings rather than their adjudication), dispute Step 3 in the foregoing analysis. They would, as I apprehend their submissions, substitute a Step 3 in somewhat the following terms:

Step 3: Apply that percentage figure to the amount identified in Step 1(a) above. If that figure does not exceed the figure in Step 1(b) above, then that Step 1(a) calculation should quantify the contribution to be ordered. Alternatively, if that figure does exceed the Step 1(b) figure, then only the Step 1(b) figure should quantify the contribution to be ordered.

82 The cross-claimants submit that this approach is supported by the ratio of the decision of the Court of Appeal of this Court in Roads and Traffic Authority v Ryan: Blue Mountains City Council v Ryan (2005) 62 NSWLR 609. In that case a plaintiff sued three defendants, A, B and C. Defendant A had struck the plaintiff while A was driving a motor vehicle. A’s liability to the plaintiff was capped by reason of certain provisions of the Motor Accidents Act 1986 (NSW). Any liability of B and of C was uncapped. The trial Judge assessed the plaintiff’s damages in a total amount of $3,712,500. His Honour assessed the capped liability of A at $2,925,000. There was a concatenation of claims by the defendants for statutory contribution. The end result of the adjudication at first instance was described thus by Sheller JA:

“In the end result, if (B) were to pay the plaintiff the amount of the verdict against it, namely $3,712,500, the (defendant B) would recover by way of contribution from (A) $1,856,250 and from (defendant C) $928,125 leaving it with a net liability of $928,125. Significantly, (defendant A) would pay $1,856,250, half of the common law verdict. If his liability was limited to contributing 50 per cent of the verdict recoverable against him under the Motor Accidents Act , his contribution would be $1,462,500.” (at paragraph 11)

83 Bryson JA, with whom Mason P agreed expressly on the point, said this:

“The approach to be taken to apportionment was authoritatively stated by the High Court of Australia in Podreberseka v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494; 59 ALR 529 at 531-532. A very wide range of considerations may reasonably be regarded when assessing just and equitable contribution under s 5(2). It was established by ….. ( Unsworth v Commissioner for Railways (1958) 101 CLR 73) ….. that contribution exceeding a statutory cap on damages which a concurrent tortfeasor was or would if sued have been liable to pay to a third party should not be awarded. Accordingly, reasoning which calculates contribution by reference to a proportion expressed as a percentage and applied to the uncapped damages payable by the party claiming contribution appears to me to be the approach which should usually be adopted. The uncapped damages are the expression of ‘damage’ referred to in s 5(1)(c) and s 5(2): the capped damages are not.” (at paragraph 105)

84 All three members of the Court held that the trial Judge had correctly ordered A to pay $1,856,250 rather than $1,462,500.

85 This decision, and the ratio of it as expressed by Bryson JA, seems to me to support in terms the present cross-claimants’ alternative Step 3 as I have paraphrased it above.

86 It is submitted by the cross-defendant that the decision in RTA is distinguishable, as of course it is in the sense that the relevant figures were assessments by a Judge and not a settlement inter partes. Apart from that distinction, it seems to me that the decision accords, in its fundamental reasoning, with High Court authorities.

87 I was referred, also, to a decision of Wood CJ at CL: Lanza v Codemo [2001] NSWSC 72. Insofar as the reasoning of his Honour accords with that of the Court of Appeal, nothing of novel principle is added to the Court of Appeal decision. Insofar as the reasoning of his Honour does not accord with that of the Court of Appeal, - (and I am inclined to think that his Honour’s paragraphs [204] and [206] are not, with respect, internally consistent; and that the concluding words of paragraph [204] seem, with respect, not to accord with the ratio of the Court of Appeal), - then I am, of course, bound by the ratio of the Court of Appeal decision.

88 It was submitted by the cross-defendant that the decision in RTA, if adverse to his submissions, should be regarded as having been wrongly decided. I note this submission but, of course, I cannot act upon it.

89 There remains the cross-defendant’s submission that its liability for statutory contribution must take into account in some fairly balanced way the fact that Mr. Kelman’s judgment for $650,000 is a consent judgment reached without any reference to the cross-defendant; and wholly unattended by any explanation of how in particular it was calculated.

90 I have an instinctive sympathy for the cross-defendant’s submissions in that connection. It was not contended in the present proceedings that the settlement reached between the cross-claimants and Mr. Kelman was improper, irregular in any other sense, or objectively unreasonable. It seems to me that had any such attack been mounted against the consent judgment, then the Court must have had the power to go behind the bare written terms of the consent judgment; and the cross-defendant must have had some standing to move the Court to do so. I say no more about those possibilities because they do not arise as live issues in the instant case.

91 That being so, I am of the opinion that for as long as the decision in RTA stands as good authority, then in a case such as the instant case the amount of the principal judgment is the amount to which any percentage figure fixing the level of statutory contribution by a joint tortfeasor, is to be applied; and that the only qualification is that the resulting figure must not exceed the figure representing a reasonable assessment, on the basis of 100 per cent liability, of the cross-defendant’s liability to pay damages as capped by statute.

92 That is how I would have proceeded, had it been necessary to do so, in answer to my stated fourth question. On the available figures, that would have entailed an order that the cross-defendant pay to the cross-claimants a stated percentage of $650,000. A percentage of 66 percent or thereabouts, the high point suggested by the written submissions of the cross-claimants, would not have exceeded, on the available figures, the appropriate statutorily capped section 151G(1) damages.

93 Before leaving this fourth stated question I should notice a submission put in paragraph 18 of the cross-defendant’s written submissions:

18. Furthermore, Section 5(2) of the Act empowers the Court to exempt any person from liability to make contribution. If the Court concluded that there was no evidence of the cross defendant having acted unreasonably but that, contrary to the cross defendant’s submissions, there had been a breach of statutory duty arising out of a form of strict liability untempered by any notion of reasonableness, it is submitted that it would be appropriate for the Court to exercise the power to exempt the cross defendant from liability to make any contribution. In those circumstances, the breach of statutory duty would not involve any culpability in the sense of unreasonableness or wantonness but would be a liability fixed upon the cross defendant notwithstanding the absence of any such conduct.”

94 I accept that, if I had found the cross-defendant to have been in breach of some absolute statutory duty of care, then there would have arisen thereupon a discretion to order an exemption. So much is, in my opinion, clearly established by the decision of the Court of Appeal of this Court in Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Company Pty Limited (2001) 53 NSWLR 626.

95 I do not see, however, that I can usefully say, in the light of my answer to my second stated question, anything more on the topic.

Conclusion

96 For the whole of the foregoing reasons I have come to the conclusion that the cross-claim fails. I see no reason why costs should not follow the event. I shall make in due course appropriate orders.

The Proceedings Numbered 20516 of 2005

97 I have noted earlier herein the nature of this claim.

98 I have been reminded by a re-reading of, in particular, pages 190 and 191 of the trial transcript that I saw, at the time, real, practical problems in connection with a determination of the issues raised by these proceedings.

99 Having thought about the matter, I believe that the better course is to give judgment in the contribution proceedings; to publish my reasons; and then to hear from both counsel as to how they wish, respectively, to deal with the issues raised in the instant indemnity proceedings. For reasons given to counsel on 22 November last, I would much prefer not to take that course; but I can see, as at present advised, no practical alternative.

Summary of Orders

Proceedings 20375 of 2004

100 I find a verdict for the cross-defendant on the cross-claim for statutory contribution. I order the cross-claimants to pay the cross-defendant’s costs of that cross-claim. Judgment accordingly.

Proceedings 20156 of 2005

101 Order that these proceedings stand over to a date to be fixed. Direct that counsel for the plaintiff and counsel for the defendants notify my Associate in writing, facsimile transmission being sufficient compliance, and not later than 7 days from today, what course each proposes should be taken in these proceedings, particular regard being had to my published reasons in the associated proceedings 20375 of 2004. All ancillary matters reserved.

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