On appeal from the Supreme Court of Western Australia
Representation
B W Walker QC with P Kulevski for the appellant (instructed by DLA Piper Australia)
B L Nugawela with B W Ashdown for the respondent (instructed by Chapmans)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Newcrest Mining Limited v Thornton
Negligence – Damages – Statutory limit on recoverability of damages – Section 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act1947 (WA) provides that person bringing more than one action in respect of damage suffered as the result of a tort cannot recover more than "the amount of the damages awarded by the judgment first given" – Settlement of claim against concurrent tortfeasor given effect by consent judgment – Subsequent claim brought against different concurrent tortfeasor – Whether statutory limitation on recoverability of damages applied to subsequent claim.
Words and phrases – "award", "consent judgment", "damages awarded by the judgment first given".
A person who has suffered damage as the result of a tort or torts and brings separate actions against tortfeasors liable in respect of the damage cannot recover more than "the amount of the damages awarded by the judgment first given". That is the substance of s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act1947 (WA) ("the WA Act"). It is a limit upon the recoverability of damages[1] that has been part of the law of Western Australia since 1947. Similar provisions are found in New South Wales, Queensland and the Northern Territory[2]. They were all modelled on s 6(1)(b) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK) ("the 1935 UK Act").
The question in this case is whether the limit applies when the "judgment first given" is a consent judgment in proceedings in tort and/or contract where the proceedings have been commenced and the consent to judgment filed solely to give effect to an agreement to settle the claim. The answer in this case is no. The appeal by Newcrest Mining Ltd against the decision of the Court of Appeal of Western Australia which so found should be dismissed.
"(1)Subject to Part 1F of the Civil Liability Act2002, where damage is suffered by any person as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Newcrest Mining Ltd v Thornton [2012] HCA 60
Case
[2012] HCA 60
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Newcrest Mining Ltd against a decision of the Court of Appeal of Western Australia. The dispute concerned the interpretation of section 7(1)(b) of the *Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947* (WA), which limits the total amount recoverable in damages from concurrent tortfeasors to the amount awarded in the first judgment. The respondent had previously settled his claim against a concurrent tortfeasor, Simon Engineering, by way of a consent judgment for $250,000. He then sought to bring a further action against Newcrest Mining Ltd for the same injuries.
The central legal issue before the High Court was whether the consent judgment entered into with Simon Engineering constituted "damages awarded by the judgment first given" for the purposes of section 7(1)(b) of the Act. This required the Court to determine whether a consent judgment, which does not involve an admission of liability or a judicial determination of fault, could be considered an "award" of damages in the statutory sense.
The High Court, in dismissing the appeal, reasoned that the phrase "damages awarded by the judgment first given" in section 7(1)(b) refers to damages that have been judicially determined after a hearing, not to sums agreed upon by the parties in a settlement. The Court noted that a consent judgment, while having the force of an order, does not represent a finding of liability by the court. Therefore, the $250,000 paid pursuant to the consent judgment with Simon Engineering did not qualify as "damages awarded" under the Act, and the statutory limitation did not apply to the respondent's subsequent claim against Newcrest Mining Ltd. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Section 7 of the WA Act provides:"(1)Subject to Part 1F of the Civil Liability Act 2002, where damage is suffered by any person as the result of a tort—(a)judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;(b)if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given: and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable grounds for bringing the action;(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so 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 for which contribution is sought."Factual and procedural background In February 2004 the respondent, who was employed as a rigger at the Telfer mine site in Western Australia, slipped in mud and injured his knee. He claimed workers' compensation payments and common law damages from his employer at the mine site, Simon Engineering (Australia) Pty Ltd ("Simon Engineering"). Eventually the respondent and Simon Engineering's insurer, Allianz Australia Insurance Ltd ("Allianz") agreed to settle his claims. The terms of the settlement, set out in a letter dated 17 May 2007 from the solicitors for Allianz to the respondent's solicitor, included the following:"2.By consent between the parties, judgment for [the respondent] against [Simon Engineering] in the sum of $250,000.00, in addition to all payments that have been made to date pursuant to the Workers' Compensation and Injury Management Act 1981 ...3.[Allianz] will make a contribution towards [the respondent's] legal costs in the sum of $10,000.00 and will pay the disbursements in the sum of $1,804.00.4.Settlement is to be effected by way of Consent to Judgment filed and sealed at the District Court."Enclosed with the letter was a writ of summons to be issued out of the District Court of Western Australia and a form of consent to judgment in the proceedings which were to be commenced by that writ. The terms of settlement contained no admission of liability in respect of any cause of action. The writ was issued out of the District Court in the name of the respondent as plaintiff against Simon Engineering as defendant. The indorsement of claim on the writ stated:"The Plaintiff claims against the Defendant damages in respect of all personal injuries suffered by him arising out of or in the course of his employment with the Defendant on or around 16 February 2004 and in respect of all subsequent aggravations and/or recurrences of whatsoever nature, which injuries, aggravations and/or recurrences were caused by the negligence and/or breach of statutory duty and/or breach of contract of the Defendant."No statement of claim was filed.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
HEYDON J
CRENNAN AND KIEFEL JJ
BELL J
Two months after Mazza DCJ delivered his judgment in the District Court dismissing the respondent's appeal from the decision of the Deputy Registrar[4], the Court of Appeal of New South Wales delivered judgment in Nau v Kemp & Associates Pty Ltd[5]. The Court of Appeal of New South Wales held that the term "damages awarded by [a] judgment" in s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the NSW Act"), relevantly identical to s 7(1)(b) of the WA Act, did not extend to a judgment entered by consent of the parties. The Court of Appeal of Western Australia followed the decision in Nau v Kemp on the basis that it was not "plainly wrong". In so doing, the Court of Appeal of Western Australia acted in accordance with what was said in this Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[6]. [4]Thornton v Newcrest Mining Ltd [2010] WADC 61.[5](2010) 77 NSWLR 687.[6](2007) 230 CLR 89; [2007] HCA 22.Consent judgments under the District Court Rules The District Court Rules 2005 ("DCR"), which are made under the District Court of Western Australia Act 1969 (WA), provide that the Rules of the Supreme Court 1971 ("RSC") apply to and in respect of any case in the District Court[7]. [7]DCR, r 6(1). Order 42 of the RSC provides for entry of judgment to be made in a book to be kept by the Principal Registrar at the Central Office[8]. There is a specific requirement that in any case in which a defendant "has appeared by a solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by his solicitor or agent"[9]. Where a defendant is self-represented no such order shall be made unless the defendant appears before a judge and gives his consent in person or unless his written consent is attested by a solicitor acting on his behalf[10]. Those rules are calculated to ensure that an informed consent is given by the defendant. They do not require any assessment by the court of the merits of the compromise underlying the order.[8]RSC, O 42 r 1(1).[9]RSC, O 42 r 7.[10]RSC, O 42 r 8. Order 43 provides for drawing up judgments and orders. Order 43 r 16 deals with consent orders. It provides that "[t]he parties to proceedings or their practitioners may file a written consent to the making of an order in those proceedings"[11]. The Registrar may "settle, sign and seal the order without any other application being made in any case in which in his opinion the Court would make such an order upon consent of the parties"[12]. Alternatively, the Registrar may bring the matter before the court which, without any other application, may "direct the registrar to settle, sign, and seal the order"[13]. Order 43 r 16(3) provides: "The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Court."[11]RSC, O 43 r 16(1).[12]RSC, O 43 r 16(2).[13]RSC, O 43 r 16(2). A consent order of the kind made in this case can properly be described as an order which expresses an agreement in a more formal way than usual. It may be set aside on any ground which could invalidate the agreement[14]. It is, nevertheless, an order. However, when a consent order in favour of a plaintiff gives effect to an agreement which does not involve any admission of liability in respect of any cause of action asserted by the plaintiff, it cannot be taken as reflecting an admission of liability or as a determination of liability by the court. In this case, the consent order was an order for the payment of a money sum. Order 43 r 16(3) gives the same legal effect to such an order as an order made after a hearing in the court. That does not impute any finding to the court. In this case, the causes of action asserted in the indorsement of claim on the writ were cumulatively, and alternatively, negligence, breach of statutory duty and breach of contract. It cannot be known whether underlying the terms of settlement was an unexpressed concession as to liability in respect of any of the causes of action. That gives rise to the question whether, for the purposes of s 7(1)(b) of the WA Act, it can be said, and if so on what basis, that the consent judgment was a judgment given in an action against a tortfeasor liable in respect of the damage suffered by the respondent. The answer is in the negative. Nor can it be said that the money sums specified in the consent judgment constituted "damages awarded by the judgment" within the meaning of s 7(1)(b) of the WA Act. The latter answer is fatal to this appeal. That answer flows from the construction of s 7(1)(b) in the light of its legislative history. [14]Harvey v Phillips (1956) 95 CLR 235 at 244; [1956] HCA 27 quoting Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280 per Lindley LJ.Legislative history of s 7(1)(b)
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
HEYDON J,
CRENNAN AND KIEFEL JJ,
BELL J