MARTIN v. STRATMAN and MANNING File No. SCGRG 90/468 Judgment No. 3645 Number of Pages - 13 Negligence - Workers' Compensation (1992) Aust Torts Reports 81-194

[1992] SASC 3645

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA Cox J.(1)

CWDS
Negligence - negligence of particular parties and as between parties in particular relationships - workman aged 24 fell from a mobile fruit picking platform (called a Hydrasquirt) and injured his back - Hydrasquirt found to be inherently unstable and plaintiff's claims against manufacturer and employer upheld - damages assessed at $121,632 including $40,000 for pain and suffering.
Workers' Compensation - Workers' compensation Act 1971, ss. 82 and 84 - worker paid weekly compensation etc. by employer, then sued employer and co-tortfeasor in negligence and recovered damages against both - extent (if any) to which compensation payments may be recovered or brought into account by employer - cases discussed.
Price v. Commissioner of Highways (1968) SASR 329, not followed. Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd (1975) 132 CLR 336: Foster v A.T. Brine and Sons Pty Ltd (1972) WAR 157; Marrett v Australian coastal Shipping Commission and Peterson and Co. Pty Ltd (1975) WAR
37; Eggleston v Marley Engineers Pty Ltd and Merrett (1979) 21 SASR 51; James S. Adams and Co. Pty Ltd v State Rivers and Water Supply Commission (1960) VR
542 and Philip Morris Ltd v Ainley (1975) VR 345, considered.

HRNG ADELAIDE, 14-24 September 1992 #DATE 27:10:1992
Counsel for plaintiff:            Mr P.J. Day
Solicitors:   Mellor Olsson
Counsel for defendant Stratman: Mr J.A. Carr
Solicitors:   J. A. Carr and Co.
Counsel for defendant Manning:    Mr M.I. Bell
Solicitors:   Lawson Downs

ORDER
Proceedings to enforce the plaintiff's judgement against Stratman be stayed until further order, to the intent that the plaintiff may not seek to enforce that judgement without leave of the Court, and then only to the extent required to supply the difference between the amount of the judgement against Stratman and such sums (if any) as the plaintiff may have been able to recover from Manning. The plaintiff to retain the workers compensation payments.

JUDGE1 COX J. Workman's damages action against employer and manufacturer following a machinery accident. 2. The plaintiff, then 24 years of age, was injured in an accident on a fruit block at Monash on 24 February 1987 when the piece of equipment on which he was standing, called a Hydrasquirt - essentially a mobile platform - capsized and threw him to the ground. He injured his back and he has not worked since. He claims damages for his injuries against both his employer (the defendant Stratman) and the manufacturer of the Hydrasquirt (the defendant Manning). The plaintiff's case is that the device was dangerous and he should not have been expected to use it. Both defendants deny liability. I am told that they have issued contribution notices against one another. A plea of contributory negligence on the part of the plaintiff, made by the second defendant, Manning, was not pursued at the trial. Damages are also in dispute. 3. Stratman was running a fruit block planted with vines and fig trees. The plaintiff was a casual and inexperienced fruit picker from Adelaide. He and his young friend Swindon had been working for Stratman since early in January 1987. Most of the time they were handpicking figs. About a week before the accident Stratman took delivery from Manning of two mobile elevated platforms, one a Hydraplat and the other a Hydrasquirt. The Hydrasquirt was basically a smaller form of the Hydraplat. Both were used for picking the figs that could not be reached from the ground. The plaintiff was using the Hydrasquirt when it suddenly overturned. 4. The Hydrasquirt was a simple horizontal steel frame on three wheels, triangular in plan, with a boom 2.43 metres long, pivoted above the castor wheel, that could be elevated to a height of about 3.2 metres above the ground. At the free end of the boom was a platform upon which a person could stand to pick fruit. The platform had a light framework or guard mounted on it to which were attached removeable bins to hold the fruit. This particular Hydrasquirt was powered by hydraulic motors. The three wheels were fitted with pneumatic tyres. Only the two forward wheels were powered. The castor or swivelling wheel normally ran behind, but the machine could work in reverse. The driving wheels were about 1.5 metres apart, and from the front axle to the castor wheel's supporting pivot was 1.68 metres. The motor was adjusted by the manufacturer to operate the machine over the ground at a speed of about 2.6 kph. It was designed to be operated from the platform by means of hand and foot controls. There was nothing like a normal accelerator or throttle at the disposal of the operator so, unless when perhaps in the hands of a very experienced operator, it was a matter of the power to a wheel being either wholly on or wholly off. Each wheel, however, was powered separately and had its own lever in the cabin to control it. There was no steering wheel. To turn the vehicle one simply operated one of the drive wheels alone or, if a sharper turn were wanted, by simultaneously putting the other wheel into reverse. The boom could also be raised or lowered from the cabin. It was better to travel over the ground with the boom down, but it was possible to move the machine with the boom in the elevated position. 5. The accident happened about 9 o'clock one morning when the plaintiff had just finished picking figs from the top of the last tree in one of the rows and was reversing out of the tree. The plaintiff had been using the machine for the previous four or five days. Precisely how the accident happened is by no means clear. 6. Adjacent to the fig plantation was a vineyard. The track between them was 6 or 7 metres wide. There was a slight slope at this point from the fig trees to the vines. 7. The fig trees were about 5 metres high. The harvesting technique was to nose the Hydrasquirt into the tree, with the drive wheels running under the lowest branches and with the boom probably in the fully elevated position. The operator would stop the Hydrasquirt and then lower the cabin into the canopy of the tree so that he could reach the fruit. He would put the fruit into the bins that were suspended from the front of the cabin. When he had picked all the fruit within reach he would elevate the boom again, reverse out of the tree and repeat the operation in another position. This is the method the plaintiff had been using. 8. The plaintiff was badly winded by the fall but he did not lose consciousness and he gave an intelligible account of what happened. He may have backed further out of the tree than he remembers. There were no independent eye-witnesses but Swindon and Stratman and others were at the scene soon afterwards and they gave evidence of what they saw. There was also evidence on the subject of prior instruction to the plaintiff and Swindon and as to whether they were given any warnings about these picking machines. There was expert evidence from two engineers. Evidence about the nature and capabilities of Hydrasquirts and their known behaviour in the Riverland was given by Manning and his mechanic Milich. The result was a degree of confusion and contradiction about the cause of the accident that was unusual even for a case of this kind. Practically the only thing upon which the witnesses at the site could agree was the fact that the machine did capsize in the vicinity of one of the fig trees opposite the vineyard. 9. Paradoxically, any attempt to draw a conclusion about what actually happened was complicated in some respects by the opinions - generally conflicting - of the two experts about the design and nature and capabilities of a Hydrasquirt. 10. This is not the sort of case in which the Judge can simply say that he accepts the evidence of the witnesses A, B and C and rejects the evidence of the witnesses X, Y and Z. It would be possible to summarize and criticize the evidence of the several witnesses and then attempt to find a solution for a case that presents many factual problems, but this would be time-consuming and I do not think that it would be very profitable. I can say that I think that the plaintiff's account of what happened is plausible, as far as it goes, but it is almost certainly incomplete. He, and the other witnesses also, were trying to recall things that happened five and a half years ago. 11. The plaintiff said, in short, that he was reversing out of the tree, on a straight course, but had not gone more than a couple of feet when he realized that he was no longer moving. He looked down and saw that one of the drive wheels had lifted off the ground and that the machine was capsizing. It is possible, however, that, contrary to the plaintiff's belief, he was turning the machine to quite an appreciable degree when it overturned, and that he travelled more than a couple of feet. 12. Of the two engineers, I prefer generally the evidence of Maddern. I am not qualified to make a judgement about some of the technical differences between the experts but in the end I do not think that matters. Maddern's evidence has the advantage that it offers a more or less plausible explanation for the accident, whereas Hall's does not. As I have indicated, the one thing on which all parties are agreed is that the machine did capsize and apparently through no fault of the plaintiff. 13. The two most likely, or rather least unlikely, explanations are that the Hydrasquirt got entangled in a branch of the tree and was, as it were, pulled over; alternatively, that the plaintiff was (contrary to his belief) reversing and turning at the same time, and that as the Hydrasquirt cleared the tree one of the wheels ran into a hole or depression or over a ridge or other obstruction and that this combination of circumstances, aided by the natural slope of the ground, induced or exploited an instability which caused the Hydrasquirt to capsize. As I have indicated, it is not easy to reconcile either theory with the lay and expert evidence but I am satisfied that the accident happened in one of those two ways. I incline to the first theory but it does not greatly matter which possible explanation is correct. I should say that the fact that the machine ended up on its side on the track some little distance from the tree is perhaps surprising but is not inconsistent with either theory. 14. Whether one accepts all his figures or not, Maddern must be right in his conclusion that this Hydrasquirt lacked proper stability. The instability was causative. There was nothing about the ground surface in the vicinity, including its softness and unevenness and its very gentle slope, or the nature of the fruit trees or the use to which the Hydraplat was being put, that was particularly unusual. It was all well within the limits of reasonable foreseeability by, in particular, Stratman and Manning. There was nothing abnormal or unexpected about the way the plaintiff drove the Hydrasquirt on this occasion. 15. In my opinion, Manning should have appreciated the risk of an accident of this sort. He was the designer and manufacturer of the Hydroplat and, later, the Hydrasquirt. He has made about 600 of them since about 1970. He sells them and also lets them out on hire. He modelled his machines, with some modifications, on an imported machine called an Afron. So far as stability was concerned, he assumed the stability of the Afron, and made some structural departures from the Afron which, indeed, should have improved the stability, but his machines could go considerably faster than the Afron when the boom was in the elevated position. He did not copy the Afron's two-speed motor. Speed and manoeuvrability, and therefore from the grower's point of view productivity, were important selling points for Manning. He said that he discussed his plans with officials from the Department of Labour and Industry and that they were generally approving, but precisely what these people may have intended to approve is far from clear. Manning's own training and experience were practical rather than theoretical. I think he should at the outset have submitted to a qualified engineer a design and specification of the machines he proposed to build, and have given the prototype thorough field tests that would adequately anticipate the various conditions that might be encountered on the Riverland fruit blocks. I appreciate that Manning has called as a witness in this case an engineer who has little criticism to make of his machines, but I think the likelihood is that most engineers would have recommended additional safety features. Three that readily suggest themselves as practicable and not particularly expensive, and are relevant to this accident, are appreciably increased weight at the base of the machine, a governor, or load dependent throttle, that would limit the speed of the machine when the boom was fully elevated, and a tamper-proof speed control. Of those probably the most important for present purposes was adding to the weight of the framework to make the Hydrasquirt more stable, although keeping the speed down when the boom was fully elevated was also important. Manning should also have ensured that all hirers received adequate warning about the machine's inherent shortcomings. His marketing pamphlets show that he was alive to certain of the risks, but he did not give any warning pamphlets to Stratman. There was no safety warning on the machines themselves. It was foreseeable that the machines would be used in a variety of physical conditions and by young and inexperienced pickers. Manning was aware that owners or hirers or their employees sometimes interfered with the speed adjustment; indeed, there is evidence that suggests that this might have been done to the Hydrasquirt that was involved in this accident. I do not think it is a sufficient answer to say that reported accidents had been few, and that the Hydrasquirt involved in the accident was not the latest model. It is not to the point that Hydrasquirts may be safer than ladders, if using a Hydrasquirt involves a foreseeable and readily avoidable risk of injury to inexperienced users. In my opinion, Manning was in breach of his duty of care to the plaintiff. 16. I think the plaintiff is also entitled to a judgement against Stratman. There was nothing about the general appearance of the Hydrasquirt, or the movement at platform level with the boom fully extended, to inspire on the part of either onlooker or operator any great confidence in the machine's stability. True, Stratman had been using Hydraplats or Hydrasquirts at harvest time for a year or so before this accident without serious mishap, and he knew that there were many of them in use around the Riverland. No doubt he was entitled to place a good deal of reliance upon the fact that a presumably responsible manufacturer had put them on the market. He had not received any warning pamphlets from Manning or any other hire firm. However, he had had experience himself of turning one of these machines in sandy conditions and having a wheel come off the ground. Indeed, he said that this was not rare or remarkable. He had known instances, albeit rare, of the boom getting hooked up in a tree branch and lifting a wheel significantly off the ground, "and if anybody was so dense as to not notice it, and went on operating, it could well topple the unit." 17. Only a few days before the plaintiff's accident Swindon had refused to continue using this Hydrasquirt. He explained to Stratman that he had seen a wheel lift off the ground, and he described the machine to Stratman as dangerous. I think all of these incidents, taken together, should have alerted Stratman to the basic inadequacy of the machine and to the possibility of an accident, particularly when it was in the hands of a casual employee. It was not as though the plaintiff had proved himself to be a cautious and attentive workman who could be relied upon to perceive at once any untoward movement on the Hydrasquirt's part in time to do something about it. He was young and inexperienced. Stratman gave the plaintiff no warning or advice about the machine's instability. He saw no need to. In my opinion, Stratman failed to take sufficient care for the safety of the plaintiff. Manning's responsibility was much greater than Stratman's. I would apportion the blame at 15/85% in Stratman's favour. 18. I turn to the matter of damages. The plaintiff suffered compression fractures of three lumbar discs. He spent a month in the Berri Hospital and then a few days in the Modbury Hospital. At Modbury he was under the care of Mr Fry, who on 22 May 1987 certified him fit to return to work on light duties. The plaintiff was not happy about that and obtained a second opinion from another orthopaedic surgeon, Mr Dobson. He was sent to a rehabilitation course and later given acupuncture. Early in 1988 Mr Fraser had him in hospital for two days for a discogram. He said he was looking for jobs but without success. In January 1989 he returned to the first defendant's fruit block on light duties. He said after a time that too many of the tasks made his back worse. He went to a local doctor and was told to stop work. He returned to Adelaide. He has applied for different jobs since then but remains unemployed. He is living with his girlfriend who has a job. He, himself, evidently has no plans for work. 19. The plaintiff called Mr Fry and Mr Dobson. The first said that the compression fractures healed satisfactorily. He has seen the plaintiff a number of times. The situation is stable and there is no reason why the plaintiff could not do moderately heavy work. Mr Dobson is not as optimistic. He considers that some instability remains in the spine and that the plaintiff is fit for only light work. I think the plaintiff is capable of gainful employment. I have no doubt that he does get a degree of discomfort or pain, particularly on exertion, but so do many people who manage to hold down a manual job. I suspect that motivation may have something to do with it. The evidence is that the plaintiff has consulted a psychiatrist, Dr Black, but Dr Black was not called. 20. The plaintiff has no special work skills. He had an indifferent work history before the accident, with a good number of jobs of fairly short duration and spells of unemployment in between. That does not mean that he would necessarily have continued in the same pattern for the rest of his life. He was young and single; the motivation for regular employment may have come later. It may possibly help to explain, though, why he has only done a couple of weeks' work in the past five and a half years. I bear in mind, as to both the past and the future, that the plaintiff's poor formal education and lack of a trade will have made it more difficult for him to find employment. He is now excluded from many of the jobs for which, before the accident, he was most suited. Nevertheless I think it would be fair to compensate him on the footing that he has been fit to do at least light to moderate work since, say, the middle of 1989. That should continue to be the situation in the future although I expect that, as with most such cases, he will have occasional flareups that may interfere with his work. I shall include in the damages for future economic loss an allowance for possible medical care. 21. I assess the plaintiff's damages as follows - Pain and suffering - past - $15,000 future - $25,000 Economic loss - past - $24,000 future - $50,000 Special damages (agreed) $ 7,632 $46,632 $75,000 $46,632 $121,632 The plaintiff received payments of one kind or another under the Workers Compensation Act 1971 totalling $56,387. They were paid, of course, by or on behalf of the first defendant. I would normally have deducted them from Stratman's portion of the damages - the deficit would have been a problem - but Mr Bell (for Manning) submitted that the workers compensation payments should be deducted before any apportioning is done, thus giving his client a substantial benefit from payments to which he has made no contribution at all. I listened to an interesting argument, and I have not found it easy to resolve it. 22. It is as well to approach any discussion of this question with certain basic principles in mind. Although a plaintiff's damages may be assessed at a particular figure, it does not necessarily follow that judgement will be entered for that amount. It may have to be reduced, for instance, to allow for the plaintiff's contributory negligence. He may have received from the defendant an advance payment. In this case the plaintiff received $56,387 for workers compensation. If Stratman were the only defendant, the position would be quite clear. The compensation payments would be deducted from the assessed damages and judgement entered for the balance. That procedure complies with the requirements of the workers compensation legislation, but even without it some at least of the compensation payments (for instance, the medical expenses), perhaps all of them, would have to come off in accordance with the principle against double recovery. Where there are two defendants, the employer and a concurrent tortfeasor, the employer would normally get a credit for the compensation payments before judgement is entered against him, but the circumstances may also require, exceptionally, some adjustment to be made to the amount for which judgement is entered against the co-defendant. It is true that the compensation payments only operate to reduce an employer's common law liability to the worker; where the compensation exceeds the damages, the employer is not entitled to a refund of the balance. Nevertheless the principle against double payment may influence, directly or indirectly, the amount of the damages payable by the co-defendant as well. That does not necessarily mean, however, that the compensation payments are simply to be deducted from the assessed damages and the balance then divided between the two negligent defendants. That might give the co-defendant a benefit, at the expense of the employer, that he has not earned. One might think that the respective rights of the parties could be adjusted satisfactorily in any given case by having recourse to the principles I have mentioned together with the rules about contribution between tortfeasors that are laid down in the Wrongs Act. However, Mr Bell's submission is that any attempt to adjust the parties' rights and obligations to produce what might appear to be a just result will be subject to important legal limitations. 23. The argument begins with s.84 of the Workers Compensation Act 1971 (now repealed but applicable to this case) which reads -

    "(1) Where the injury for which compensation is payable under
     this Act was caused under circumstances creating a legal
     liability in some person other than the employer (which other
     person is hereinafter called "the third party") to pay damages
     in respect thereof, the following provisions shall apply:
     (a) the worker may take proceedings both against the third
     party to recover damages and against the employer for
     compensation;
     (b) a worker who receives any money from a third party in
     respect of an injury and compensation under this Act shall
     repay to the employer such amount of that compensation as does
     not exceed the amount recovered from the third party;
     (c) upon notice to the third party, the employer shall have a
     first charge on moneys payable by the third party to the
     worker, to the extent of any compensation which the employer
     has paid to the worker;
     (d) if the worker has received compensation under this Act, but
     no damages or less than the full amount of the damages to which
     he is or was entitled, the third party shall be liable to
     indemnify the employer against so much of the compensation paid
     to the worker as does not exceed the damages to which the
     worker is or was entitled but has not received, and the
     employer may enforce the indemnity against the third party by
     action; and (e) payment of money by a third party to the
     employer pursuant to paragraph (d) shall, to the extent of the
     amount paid, be a satisfaction of the liability of the third
     party to the worker.
     (2) Subsection (1) does not apply in relation to any payment
     made to a worker under the Criminal Injuries Compensation Act,
     1978." 24. It was held by the High Court in Public Transport Commission of New South Wales v. J. Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 that the right to an indemnity given by the New South Wales counterpart to par.(d), above, was given only to an employer who had no liability to the worker in relation to the compensable injury other than a statutory liability to pay worker's compensation. The provision did not enable an employer whose negligence had contributed to the occurrence, out of which the right to compensation arose, to recover an indemnity. The High Court considered that the headwords of sub-s.(1), properly understood, referred only to the case in which the third party was exclusively liable to the worker, and it found confirmation of this in the wording of par.(a). In so holding the High Court followed the decision of the English Court of Appeal in Cory and Son Ltd v. France, Fenwick and Co. Ltd (1911) 1 KB 114. In the New South Wales case the worker's injuries had been caused by the negligence of both his employer and the third party. The employer paid the worker compensation under the Workers' Compensation Act (NSW) and then sued the third party for an indemnity in respect of that compensation. It was held that the claim could not succeed. 25. I do not think that the decision in Murray-More will necessarily prevent an employer who is successfully sued for negligence or breach of statutory duty by one of his workers from having the workers compensation payments he has made to the worker set off against the common law damages. Section 84 of the Workers Compensation Act, 1971, was concerned with the circumstances in which a third party is liable to indemnify an employer for compensation that the employer has paid to his injured workman. In the simple case of a workman suing his employer for negligence or breach of statutory duty, no question of indemnity arises. The deduction for compensation payments will be made in accordance with the provisions of s.82 of the Act which authorized a worker to sue his employer for a work-related injury and provides in sub-s.(6) - "Any sum received by a worker from an employer by way of compensation under this Act or under a law of any other State or of the Commonwealth in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of damages in respect of the same injury." 26. That says nothing about indemnity proceedings against a third party. It simply, by implication, authorizes the Court, in an industrial accident case against an employer, and whether there is another defendant or not, to deduct the compensation payments from the assessed damages before entering judgement against the employer. Kassos v. South Australia (1981) 29 SASR 375. 27. There may be a difficulty, however, where the worker has sued both his employer and a third party and both are found liable, particularly where the amount of the compensation payments, that the employer has made, happens to exceed the employer's effective share of the assessed damages. As I have indicated, it is possible that in such a case the only way of adjusting the respective rights and interests of the parties is by way of the contribution provisions contained in Part III of the Wrongs Act. The relevant part of s.25 of that Act reads -
    "(1) Where damages suffered by any person as a result of a
     tort (whether a crime or not) -
     ...
     (c) any tort-feasor liable in respect of that damage may
     recover contribution from any other tort-feasor who is, or
     would at any time have been, liable in respect of the same
     damage, whether as a joint tort-feasor or otherwise so,
     however, that no person shall be entitled to recover
     contribution under this section from any person entitled to be
     indemnified by him in respect of the liability in respect of
     which the contribution is sought: ..." 28. Section 26 reads -
    "In any proceedings for contribution under the last preceding
     section the amount of the contribution recoverable from any
     person shall be such 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 the court shall have power
     to exempt any person from liability to make contribution, or to
     direct that the contribution to be recovered from any person
shall amount to a complete indemnity." 29. In Hanson v. Matthew Bros Contractors Ltd (1990) 55 SASR 183, at 197, I expressed a doubt whether the liability to contribute pursuant to s.25 of the Wrongs Act can be applied to payments made under the Workers Compensation Act 1971, even where the damage happens to have been suffered by the plaintiff as the result of a tort; indeed, whether the contribution scheme in ss.25 and 26 of the Wrongs Act extends generally to payments made under the Workers Compensation Act. I cited Foster v. A.T. Brine and Sons Pty Ltd (1972) WAR
157, at 161, and Marrett v. Australian Coastal Shipping Commission and Peterson and Co. Pty Ltd (1975) WAR 37. The former case anticipated the High Court's decision in Murray-More, but the trial Judge (Burt J.) also observed that he did not think that the Western Australian contribution legislation could be used by the employer, in proceedings subsequent to the worker's successful action against his employer and the concurrent tortfeasor, to obtain contribution from the tortfeasor towards the workers compensation payments that the employer had made. In Marrett a worker sued both his employer and a third party and judgement was entered by consent against both for an agreed amount, less the workers compensation payments that had already been made. The employer then sought from the Court an order under the contribution legislation requiring the third party to contribute to the compensation payments according to his agreed proportionate liability for the worker's injuries. He failed because, judgement having been entered against the third party, Wallace J. considered that the latter was no longer "liable" to the worker in damages so that the contribution legislation was inapplicable. However, I observe that the following month, in Perry v. McIlwraith's Transport Pty Ltd and Associated Steamships Pty Ltd (1975) WAR
83, Wallace J. resiled from that construction of the word "liable" (following Brambles Pty Ltd v. Helmers (1966) 114 CLR 213); notwithstanding the fact that judgement had been entered in Perry's favour for an amount less the workers compensation payments, the employer was entitled to recover contribution from his co-defendant to the extent of the agreed proportion of the full damages. His Honour considered that the co-defendant's consent to judgement carried with it an acceptance of such liability. It was evidently held that this was a matter of contribution, not indemnity, and so not proscribed under the workers compensation legislation. The last two cases have a good deal in common with the present case. In Price v. Commissioner of Highways (1968) SASR 329, Bray C.J. had held that s.27a(3) of the Wrongs Act - the standard contributory negligence provision - could be applied to reduce the amount of an indemnity that an employer could recover against a third party under s.71 of the Workmen's Compensation Act 1932-1965, the predecessor to s.84 of the Act of 1971. His Honour's reasoning would seem to apply also to the contribution provisions of ss.25 and 26 of the Wrongs Act. In Eggleston v. Marley Engineers Pty Ltd and Merrett (1979) 21 SASR 51, a case fairly similar to the present, Hogarth J. (at 66) made contribution orders that took the workers compensation payments by the employer defendant into account. His Honour contemplated the possibility of the employer otherwise taking indemnity proceedings against the other defendant under s.84 of the Workers Compensation Act. It is plain that no question was raised in Eggleston v. Marley as to the power to make such contribution or indemnity orders. Indeed, the point was not really argued in Hanson v. Matthew Bros and I did not have to express a firm opinion about it. 30. Mr Bell referred me to the reasons of Gibbs J. in Murray-More in which his Honour, after dealing with the s.84 question, added -
    "No submission was made to us that the position had been
    altered by the enactment of the legislation that provides for
    the apportionment of liability in the case of contributory
    negligence - in New South Wales, s.10 of the Law Reform
    (Miscellaneous Provisions) Act, 1965. It was held in Price v.
Commissioner of Highways (1968) SASR 329 that Cory and Son Ltd.
v. France, Fenwick and Co. Ltd. (1911) 1 KB 114 should be
    regarded as assimilating the right of the employer against the
    stranger under the indemnity to the right which the employer
    would have had against the stranger under the general law at the
    relevant time in an action brought by the worker against both;
    accordingly, it was held, since the enactment of the
    apportionment legislation the employer can recover from the
    stranger an appropriate proportion of the amount of compensation
    paid to the worker. A different view was taken in Foster v.
A.T. Brine and Sons Pty Ltd. (1972) WAR 157, at pp 160-161,
    where it was held, agreeing with dicta in James S. Adams and
    Co. Pty Ltd v. State Rivers and Water Supply Commission (1960)
    VR 542, at p 545, that notwithstanding the enactment of the
    apportionment legislation the negligence of the employer is
    still a complete defence to an action against a stranger for
    indemnity. This latter view is in my opinion correct. The
    words "where any person suffers damage" in s.10 are inapt to
    refer to the case of an employer who has been called upon to pay
    compensation, and the words "the damages recoverable in respect
    thereof" do not appropriately describe an indemnity in respect
    of the compensation paid. Moreover, s.10 makes a number of
    references to payments made under the Act, including repayments
    of compensation under s.64(1)(a), and this provides an
    additional reason for thinking that s.64(1)(b), which is not
    mentioned in s.10, was not intended to be affected by its
provisions." (132 CLR at 351) 31. The headwords of s.10 of the New South Wales Act are identical with the headwords of sub-s.(3) of s.27a of our Wrongs Act, but the respective provisos are different. Paragraph (d) of s.10 (unlike s.27a) makes express reference to the situation dealt with in par.(a) of sub-s.(1) of s.84 of our Workers Compensation Act. It is clear, however, that the absence of any express reference in the New South Wales Act to the indemnity paragraph was seen by Gibbs J. as being merely supportive of a conclusion to which his Honour had already come. The other members of the Court in Murray-More did not discuss the contribution law. 32. In James S. Adams and Co. Pty Ltd v. State Rivers and Water Supply Commission (1960) VR 542, to which Gibbs J. referred in the passage quoted above, Sholl J. held that the Victorian contribution law (similar in this respect to our own) did not apply to the indemnity provisions of the workers compensation legislation. This was primarily because compensation payments could not aptly be described as "damages", the term used in the contribution legislation. (Bray C.J. in Price v. Bevan expressly disagreed with Sholl J. about that.) In Philip Morris Ltd v. Ainley (1975) VR 345, Menhennitt J. (at 350) appears to have taken the same view as Sholl J. 33. In my opinion, for the reasons given in the Victorian cases and in Foster v. Brine, and by Gibbs J. in Murray-More, it is not open to an employer who has paid workers compensation to a successful plaintiff to claim indemnity or contribution towards those compensation payments under s.27a(3) of the Wrongs Act from a tortfeasor who is concurrently liable to the worker, whether in a damages action brought by the worker against the two tortfeasors or in some separate proceedings. Workers compensation payments are not "damages" within the meaning of the Wrongs Act. (I respectfully disagree with Bray C.J. on that point.) The use of the Workers Compensation Act for this purpose is barred by the ruling in Murray-More. There is no other statutory provision, so far as I am aware, or any principle of the common law, that the employer may call in aid. 34. I return to the facts of the present case. It is convenient first to see whether any contribution question between Stratman and Manning necessarily arises. The plaintiff's damages have been assessed at $121,632. He has already been paid $56,387 under the Workers Compensation Act. I have not been given the details of that payment, except that it includes all the special damages and that the weekly payments were made in 1987 and 1988. I presume that it includes a lump sum payment as well, but for what kind of liability and upon what basis I do not know. What is really needed, from a practical point of view, is a payment by Manning to the plaintiff of $65,245 and a payment by Manning to Stratman of $38,142.20. That would give the plaintiff his assessed damages - $103,387.20 (85%) from Manning and a net $18,244.80 (15%) from Stratman. However, there are two problems about making orders of that sort. First, the basic common law principle of liability of concurrent tortfeasors is that each of them is liable to pay the whole of the victim's damages. They are bound, as it is said, in solido and not merely to the extent of a pro rata share. A judgement along the lines I have just outlined would be contrary to that principle and involve an important departure from the general practice of this Court. Furthermore, the usual solidary order has an important practical aspect as well. If the successful plaintiff cannot recover judgement against one of a number of tortfeasors, he has the others to fall back on. If an order were made in this case of the kind proposed, the plaintiff would be in difficulties in the event of Manning for any reason being unable to make the payments ordered. 35. There are, I think, two possible solutions to the problem. The first is to enter judgement for the plaintiff against Manning for $103,387.20 (being Manning's proportion of the assessed damages) and for the plaintiff against Stratman for $65,245 (being the assessed damages less the compensation payments) and to make appropriate cross-orders as to contribution under the Wrongs Act designed to ensure that Stratman in the end pays 15% of the damages, with a credit for compensation payments already made, and that Manning pays 85% of the damages. That is what was done in Eggleston v. Marley. However, it is a necessary aspect of this sort of joint and several liability that one cannot tell how the plaintiff will choose or be able to recover judgement, and it would generally be undesirable to restrict his options. It would, therefore, be necessary to cover the possibility of the plaintiff in this case recovering the whole of the judgement against Manning, and to provide that in that event the plaintiff should be obliged to make a refund, in effect, of $38,142.20 to Stratman. Such a procedure would not be without its problems. First, there is always a degree of risk in making that sort of order. For one reason or another, the refund might not be made. Next, there is a question whether the Court has power under the contribution law to order a plaintiff to make any payment at all. Finally, and following from that last consideration, there is the possibility that any such payment by the plaintiff in this case would be interpreted as a refund of compensation payments to the plaintiff's employer in circumstances that would offend the High Court's ruling in Murray-More. No doubt it could be argued that the Court is entitled to make orders that will ensure that the plaintiff in this situation does not receive a double payment for the one injury - cf D'Angola v. Rio Pioneer Gravel Co. Pty Ltd (1977) 2 NSWLR 227 and Barisic v. Devenport
(1978) 2 NSWLR 112 - but, even if so authorized in principle, the expediency of requiring such a payment by the plaintiff would not, I think, be free of risk legally or practically. 36. There are occasions when the normal practice as to solidary orders must yield to the requirements of the particular case. See the two decisions last cited. I think some modification of the usual practice is warranted here. As I have already indicated, differential judgements in this case are necessary to accommodate the workers compensation payments made by Stratman. I propose to enter judgement for the plaintiff against Manning for $103,387.20 and for the plaintiff against Stratman for $65,245. I shall give a direction that Manning pay Stratman $38,142.20 and that he pay the plaintiff $65,245, and that the two payments constitute a full discharge of Manning's liability to the plaintiff under the judgement. See s.26 of the Wrongs Act. Such satisfaction by Manning of the damage sustained by the plaintiff would operate at common law to discharge Stratman's liability to the plaintiff as well. See D'Angola at 234-5. Proceedings by the plaintiff to enforce the judgement against Manning, beyond the amount of $65,245, will be stayed until further order. However, it is necessary to guard against the possibility that the plaintiff may choose to enforce the judgement against Stratman first. I shall therefore direct that proceedings to enforce the plaintiff's judgement against Stratman be stayed until further order, to the intent that the plaintiff may not seek to enforce that judgement without leave of the Court, and then only to the extent required to supply the difference between the amount of the judgement against Stratman and such sums (if any) as the plaintiff may have been able to recover from Manning. The plaintiff, of course, will retain the workers compensation payments. 37. It is necessary to make those orders in order to do justice between the parties. In my opinion, the Court has power to make the orders, and none of the payments made pursuant to them would constitute a repayment by the plaintiff of the workers compensation payments made to him by Stratman or an indemnification of Stratman by Manning with respect to those payments. The subject of the orders would be in form, and also I consider in fact, not the compensation payments but the damages that the plaintiff is entitled to recover in his action against the defendants. The circumstance that the orders achieve indirectly under the Wrongs Act what Stratman may not achieve directly under the Workers Compensation Act is not to the point. 38. The complexity of the orders is made necessary by the fact that the compensation payments made before trial in this case happen exceed the employer's just proportion of the assessed damages. Probably that does not happen very often. What the position is under the comparable provisions of the Workers Rehabilitation and Compensation Act 1986 I do not have to consider. I have not mentioned the matter of interest. I was asked to leave that until the issues of liability and procedure had been determined.