Oxley County Council v Macdonald

[1999] NSWCA 126

CITATION:	OXLEY COUNTY COUNCIL v MACDONALD & ORS; BRAMBLES HOLDINGS LIMITED v MACDONALD & ORS [1999] NSWCA 126
FILE NUMBER(S):	CA 40117/97; 40121/97
HEARING DATE(S):	13 April 1999
JUDGMENT DATE:	2 July 1999
PARTIES :	Oxley County Council Ronier Godfrey MacDonald Brambles Holdings Limited Leslie Thomas Page Rosalie Anne Page Patuse Pty Limited
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 2; Powell JA at 80

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	15000/88
LOWER COURT JUDICIAL OFFICER:	Bruce J

COUNSEL:	Appeal 40117/97 J A Timbs QC/M L Williams - A B H K Donovan QC/G R Graham - R1 D Nock SC/G M Gregg - R2 J D Hislop/I J McGillacuddy - R4 Appeal 40121/97 D Nock SC/G M Gregg - A B H K Donovan QC/G R Graham - R1 J A Timbs QC/M L Williams - R2 J D Hislop QC/I J McGillacuddy - R3 R4 R5
SOLICITORS:	Appeal 40117/97 Sparke Helmore - A T D Kelly & Co - R1 Colin Biggers & Paisley - R2 McLachlan Chilton - R4 Appeal 40121/97 Colin Biggers & Paisley - A T D Kelly & Co - R1 Sparke Helmore - R2 J M Crestani - R3 R4 McLachlan Chilton - R5
CATCHWORDS:	NEGLIGENCE - co-tortfeasors - apportionment of liability - whether unreasonable or plainly unjust; CONTRACT - implied term - breach - measure of damage - application of s5 (1) of Law Reform (Miscellaneous Provisions) Act 1946 - remoteness of damage; PRACTICE & PROCEDURE - costs - Bullock order
ACTS CITED:	Workers Compensation Act 1987 Law Reform (Miscellaneous Provisions) Act 1965 Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Astley v Austrust Limited (1999) 73 ALJR 403 Goose v Wilson Sandford & Co (unreported) English Court of Appeal, 13 February 1998 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Lewis v G H Varley Pty Limited (unreported) 18 October 1996 Grljak v Trivan Pty Ltd (In Liquidation) (1994) 35 NSWLR 82 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 House v The King (1936) 55 CLR 499 Kondis v State Transport Authority ((1984) 154 CLR 672 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Koufos v C Czarnikow Limited [1969] 1 AC 350 at 388; Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 363 and following Wenham v Ella (1972) 127 CLR 454 Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 Gould v Vaggelas (1985) 157 CLR 215 Steppke v National Capital Development Commission (1978) 39 LGRA 94
DECISION:	Appeals allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40117/97; 40121/97
CL 15000/88

PRIESTLEY JA
SHELLER JA
POWELL JA

OXLEY COUNTY COUNCIL v MACDONALD & ORS
BRAMBLES HOLDINGS LIMITED v MACDONALD & ORS

The respondent was injured in an accident when part of a load of electrical equipment he was assisting to unload fell from the truck and crushed him. The respondent commenced negligence proceedings against the appellants Oxley and Brambles. Oxley was an electricity supplier servicing the Taree area which purchased some second hand electrical and had contracted with Brambles to transport the equipment from the ACT to Taree. The trial Judge held that the respondent’s injuries were due to the negligence of both the appellants, and awarded verdicts accordingly.

Both appellants appealed against the apportionment of liability between them on the grounds that the trial Judge gave no reasons and that the apportionment was wrong. Oxley further claimed that the trial Judge erred in failing to determine its claim for damages for the breach, by Brambles, of an alleged implied term of the contract for carriage that Brambles would load, secure and transport the goods with reasonable care and skill, so that the goods could be unloaded in a safe and proper manner without presenting a risk of injury to the employees who were to assist in the unloading. Oxley argued that this term was implied because Brambles had unilaterally in the course of carrying out the contract decided to re-load the goods from two trucks to one. Brambles also relied on an alleged implied term of the contract of carriage that Oxley would unload the transformers and accessories with reasonable care and skill and with competent and qualified workmen. These claims were argued before the trial Judge who did not deal with them in his judgment.

Held:
By Sheller JA, Priestley and Powell JJA agreeing:
(1) As the trial Judge did not give reasons for the apportionment of liability between Brambles and Oxley, the Court may infer that in some way there has been a failure properly to exercise the discretion which the law opposed in the court at first instance, if upon the facts the result embodied in the order for apportionment was unreasonable or plainly unjust. However, the trial Judge’s apportionment was not unreasonable or plainly unjust, accordingly each parties’ claim to vary the apportionment was dismissed. House v The King (1936) 55 CLR 499 at 505 applied, Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 493-4 considered, Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 at 68 referred to;
(2) That the contract for carriage did contain an implied term that Brambles would load, secure and transport the goods with reasonable care and skill, so that the goods could be unloaded in a safe and proper manner without presenting a risk of injury to the employees who were to assist in the unloading. This term could be regarded as a particular incident of a contract for the carriage of goods, otherwise silent on the subject, where for any reason of necessity or otherwise the carrier off-loads and re-loads goods during the course of carriage. Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349 at 363-4 referred to;
(3) Further, there could be little doubt that if Oxley suffered damage as a result of the breach by Brambles of this contract, the measure of damages would be the damages and costs Oxley was required to pay the respondent and the costs Oxley incurred in defending the proceedings. It did not matter that Oxley was a co-tortfeasor with Brambles or that each was entitled to recover contribution from the other in respect of the damage suffered as a result of the other’s tort. Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588 at 591, 598-9 applied;
(4) Oxley’s right to recover damages for breach of contract was unaffected by the application of s5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946, as this section applied to damages resulting from a tort, not from breach of contract. In the absence of some contractual stipulation to the contrary, there was no reason of justice or sound legal policy which should prevent Oxley recovering for all damage that was causally connected to the breach by Brambles even if Oxley’s conduct contributed to the damage which it suffered. Astley v Austrust (1999) 161 ALR 155 applied;
(5) Oxley was contractually obliged to unload the truck in a manner so as not to damage Brambles’ property or injure its employee or contractor. However, Brambles could not recover damages, being the amount of its liability to the respondent, as they were too remote. Damages for the loss which Oxley suffered as a result of the injury to its employee and its liability as employer to that employee could fairly and reasonably be considered to arise according to the usual course of things from Brambles breach of its contractual obligation to load and secure the goods with reasonable care and skill. However, the possibility of Brambles’ liability to Oxley’s employee flowing from the consequence of Oxley’s failure to unload the goods with reasonable care and skill could not fairly and reasonably be considered to arise according to the usual course of things. Such damages could not reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as not unlikely to occur; Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588 at 598; Koufos v C CzarnikowLimited [1969] 1 AC 350 at 388; Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 363 and following referred to; Hadley v Baxendale (1854) 9 Ex 341 at 355; 156 ER 145 at 151 referred to; Wenham v Ella (1972) 127 CLR 454 at 466-7 considered;
(6) An order by the trial Judge that the unsuccessful defendant to pay the costs of a successful defendant, also known as a Bullock order, may only be set aside if the Court is satisfied that the order was unreasonable or plainly unjust. A condition of making a Bullock order was whether the suing of the defendant was reasonable, and further, whether the conduct of the unsuccessful defendant had been such as to make it fair to impose liability on it for the costs of the successful defendant. In this case the trial Judges’ decision was in error and consequently the Bullock order should be set aside. Gould v Vaggelas (1985) 157 CLR 215 at 229 applied, Norwest Refrigeration Services Pty Limited v Bain Dawes (WA) Pty Limited (1984) 157 CLR 149 considered, Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100 referred to.

Statutes:

Workers Compensation Act 1987
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Act 1946

Cases:

Astley v Austrust Limited (1999) 73 ALJR 403
Goose v Wilson Sandford & Co (unreported) English Court of Appeal, 13 February 1998
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Lewis v G H Varley Pty Limited (unreported) 18 October 1996
Grljak v Trivan Pty Ltd (In Liquidation) (1994) 35 NSWLR 82
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
House v The King (1936) 55 CLR 499
Kondis v State Transport Authority ((1984) 154 CLR 672
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Koufos v C CzarnikowLimited [1969] 1 AC 350 at 388;
Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 363 and following
Wenham v Ella (1972) 127 CLR 454
Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149
Gould v Vaggelas (1985) 157 CLR 215
Steppke v National Capital Development Commission (1978) 39 LGRA 94

ORDERS

Oxley’s Appeal No 40117/97

1. Appeal allowed;
2. Set aside order 6 made by Bruce J on 14 February 1997 and in lieu thereof order that the plaintiff pay the costs of the fourth defendant and the first defendant pay those costs directly to the fourth defendant and the fourth defendant be entitled to seek assessment and execution in relation to the assessment directly against the first defendant.
3. Set aside order 7 (a) and (b) and in lieu thereof declare that the second defendant is entitled to recover from the first defendant by way of damages the amounts which the second defendant has paid or is called upon to pay to the plaintiff by way of damages and costs and to the first defendant, by way of contribution.
4. The respondent, Brambles Holdings Limited, to pay the appellant’s costs of the appeals and the proceedings before Bruce J.
5. Patuse to pay so much of the appellant’s costs of the appeal as relate to the appeal against the order that the appellant contribute to Patuse’s costs.
6. Remit to the Common Law Division the assessment of damages pursuant to the declaration in 3 above, if such damages are not agreed between the parties.

Brambles’ Appeal No 40121/97

1. Appeal allowed;

2. Set aside order 1 and in lieu thereof order that the first defendant pay to the plaintiff the sum of $788,698.68, this judgment to take effect on 14 February 1997.

Otherwise Orders 2, 3, 4 and 5 and 7 (c) and (d) are confirmed.

*****

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40117/97; 40121/97
CL 15000/88

PRIESTLEY JA
SHELLER JA
POWELL JA

Friday, 2 July 1999

OXLEY COUNTY COUNCIL v MACDONALD & ORS
BRAMBLES HOLDINGS LIMITED v MACDONALD & ORS

JUDGMENT

1    PRIESTLEY JA: I agree with Sheller JA.

2    SHELLER JA:

Introduction

On 30 November 1987 the plaintiff, Ronier Godfrey MacDonald, was injured in the course of his employment with the appellant, Oxley County Council (Oxley), when a piece of electrical equipment known as a conservator, part of a load he was assisting to unload from a delivery truck at Oxley’s depot at Taree, fell from the truck and crushed him. The plaintiff began proceedings against Brambles Holdings Limited (Brambles) which had agreed with Oxley to carry two transformers and accessory equipment from Kingston in the Australian Capital Territory (ACT) to Taree. The plaintiff alleged that he was injured as a result of Brambles’ negligent loading of the equipment onto the vehicle.

3    Brambles cross-claimed against Oxley and Parra-Trans Pty Limited (Parra-Trans) with which Brambles had sub-contracted the carriage. Brambles filed a second cross-claim against Les Thomas Page and Rosalie Anne Page as first cross-defendants and Patuse Pty Limited (Patuse) (trading as Coastal Cranes Services) as second cross-defendant, the owners and operators of a crane used at Oxley’s premises at Taree to unload the truck. Patuse cross-claimed against Brambles and Oxley.

4    Apparently the plaintiff was spurred on by these cross-claims to add Oxley, Parra-Trans and Patuse as the second, third and fourth defendants to its statement of claim. Oxley filed a cross-claim against Brambles alleging an agreement made in the course of telephone conversations and by quotation dated 7 September 1987 and purchase order dated 15 November 1987. An implied term of the agreement was alleged to be that Brambles would “load, secure and transport the goods with reasonable care and skill, so that the goods could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to employees of Oxley who were to assist in [the] unloading of the goods.” Oxley does not appear to have cross-claimed against Patuse.

Trial

5 Bruce J heard the proceedings on five days in April 1995 and gave his decision in the form of reasons for judgment and a supplementary judgment on 6 and 20 December 1996 and 14 February 1997. His Honour awarded verdicts for the plaintiff against Brambles of $866,126.02 and against Oxley of $694,030.58 and ordered Brambles and Oxley to pay the plaintiff’s costs. The first amount was arrived at after adjustments made pursuant to s151Z (2) of the Workers Compensation Act 1987 and the second by deducting $77,427.30 previously paid by Oxley for workers compensation. His Honour apportioned liability at 60 per cent to Brambles and 40 per cent to Oxley. He gave no reasons for this apportionment.

6    Bruce J entered a verdict for Patuse against the plaintiff and dismissed Parra-Trans from the proceedings with no order as to costs. His Honour held that the plaintiff was liable to pay the costs of Patuse and ordered Brambles and Oxley to pay those costs directly to Patuse. He dismissed the cross-claim of Patuse against Brambles and Oxley “(if any)” and the cross-claim of Brambles and Oxley against Patuse “(if any)” with no order as to costs.

Appeals

7    Oxley and Brambles appealed (Nos. 40117/97 and 40121/97 respectively). In so far as the appeals were against the verdicts in favour of the plaintiff, they were not pressed, though as will appear there was a formal error in the amount of the verdict against Brambles. The Court made orders dismissing Brambles’ appeal against the third, fourth and fifth respondents, Les Thomas Page and Rosalie Anne Page and Patuse, with costs. Oxley and Brambles both appealed against the apportionment of liability between them on the grounds that the trial Judge gave no reasons and that the apportionments were wrong. Oxley also appealed on the ground that Bruce J erred in holding that Oxley was liable to contribute to the costs of Patuse. Patuse submitted to such order as the Court might make on this ground of appeal and did not seek any order as to the costs of the appeal.

8    At the beginning of the hearing, Oxley sought and obtained leave to amend its notice of appeal to add a ground that Bruce J erred in failing to determine, and determine in favour of Oxley, its claim for damages for the breach by Brambles of the implied term of the contract of carriage earlier referred to. This led Brambles to seek and obtain leave to amend its notice of appeal to add a ground also relying upon an implied term of the contract of carriage that Oxley would unload the transformers and accessories with reasonable care and skill and with competent and qualified workmen. These claims in contract were pleaded and argued before Bruce J, though not with great enthusiasm. Bruce J did not deal with them. They have been revived as a result of the decision of the High Court in Astley v Austrust Limited (1999) 73 ALJR 403.

Findings of fact

9    Neither party challenged Bruce J’s findings. Oxley was an electricity supplier servicing the Taree area. The plaintiff worked as an electrical fitter at its Taree depot. Oxley purchased a quantity of second hand electrical equipment from the ACT Electricity Authority. The equipment consisted of two large transformers and accessories. Oxley contracted with Brambles for Brambles to transport that equipment from the ACT to Taree. Mr Birchmore, a former employee of Brambles, gave evidence that he entered into this arrangement on behalf of Brambles and that the basis of the quotation was that Oxley employees would load the accessories in the ACT and unload them in Taree. The arrangement was that Mr Brian Leggatt, an Oxley employee, would supervise the loading in Canberra and Mr Col Sunderland, an Oxley employee, would supervise the unloading in Taree. The agreement did not specify the number of vehicles to be used to transport the accessories from Canberra to Taree although Oxley would pay for only one truck.

10    This evidence was consistent with Oxley’s purchase order dated 13 November 1987 and addressed to Brambles, attention Mr Birchmore. The service to be provided was described as:

“To Load and Transport from

KINGSTON, ACT to OCC DEPOT, TAREE

2 only 20 MVA Transformers (approx 38 Tonne each)

Unit price Extended Price


Crane Hire (at Kingston) 1800.00

Transport of Transformers 4400.00 8800.00

Additional Semi-trailer Transport 1150.00

TOTAL $11750.00

As per your Quote of 7 Sep 87

NOTE OCC to arrange loading of Semi-trailer

“ “ “ unloading at Taree”

No written quotation was in evidence.

11    Parra-Trans agreed with Brambles to transport the accessories including the two conservators from the ACT to Taree. Parra-Trans in turn contracted with V & K Pace and another carrier to carry the accessories from the ACT to Sydney and with V & K Pace to carry them to Taree.

12    The accessories arrived at the Brambles’ depot in Sydney from the ACT on two separate vehicles. The accessories were re-loaded onto V & K Pace’s vehicle at the depot to be carried to Taree as one load. The re-loading was done using a Brambles’ crane and a Brambles’ crane driver. Mr Birchmore said that Brambles used sub-contractors for loads such as these and that the sub-contractors were responsible for loading but that the loads were checked by a Brambles’ employee, generally a supervisor.

13    Mr Jose Sanchez, who was then the managing director of Parra-Trans, which by the time of the trial had been de-registered and was not, as described by Bruce J, in liquidation, gave evidence of attending at the Brambles’ depot on Saturday, 28 November 1987 and of assisting in the loading of the single truck which was to carry the accessories to Taree. Mr Sanchez said that it was the usual practice that the driver determine how the truck was to be loaded and give directions about the load. He said that the conservators were placed on top of some pipes and metal frames. Large timber bearers were placed across the truck to take the weight “off” the tanks. When the first tank was placed on them it seemed too unstable to be left on its own so some wedges were placed there until the second tank was placed beside it and both were secured. The pipework was under the tanks. Mr Sanchez said that the load was consolidated into one vehicle because that was the way Brambles wanted it done. The load arrived at Oxley’s premises at about 8.30 am on Monday, 30 November 1987.

14    At the relevant time Mr Sunderland was the officer in charge of Oxley’s depot. The plaintiff’s immediate supervisor, Mr Leggatt, was absent from the premises in the ACT and took no part in the unloading. The plaintiff gave evidence that on the morning of the accident Mr Sunderland came to him and told him that a load had arrived and that some of the equipment had shifted. He was asked to keep an eye on Mr Carney and Mr Murton, two employees of Oxley, who were to unload the truck. Mr Sunderland had to go elsewhere. The plaintiff took this to be an instruction to give them a hand if they needed it. The plaintiff held a crane chaser’s certificate. Before Mr Sunderland approached him, the plaintiff had seen the truck at a distance but did not pay any particular attention to it. Oxley engaged Patuse to supply a crane and a driver to assist in the unloading of the truck. Mr Les Page, a director of Patuse, drove that crane.

15    The plaintiff said that after a period of time he went outside the shed where he had been working and saw that Mr Carney and Mr Murton had partly completed the unloading of the front section of the truck. There was some confusion in the evidence as to whether the plaintiff went out to the truck before the unloading began. The Patuse crane driven by Mr Page was being used in the unloading process.

16    The plaintiff said he gave some minor assistance with the unloading. When the work of unloading the front section of the truck was complete they attempted to “sling the conservators”. The conservators were not secured with any straps. Mr Carney was on the truck and he placed a sling on the conservator on the driver’s side of the truck but when he threw a sling down between the two conservators at the rear of the conservator the plaintiff could not reach it. The plaintiff asked Mr Carney where the hook was and he was told it was on the passenger’s side near the rear wheels. The plaintiff went round the truck to where the hook was, bent over to pick it up and was crushed by the conservator on the passenger’s side of the truck rolling off the truck onto him. He was seriously injured.

17    Mr Murton gave evidence that when the truck arrived at the Oxley depot some of the load at the front of the trailer had moved. He said the conservators were “on the rear of the trailer on top of a pile of pipework, checker plate and gauges - there was a jumble of pipework and ancillary equipment from the transformers”. Mr Murton had no experience as a dogman or crane chaser. The plaintiff told him he should not be involved in the slinging. Mr Carney did the slinging of the front portion of the load and the plaintiff went back to the shed. The plaintiff later returned and Mr Murton said he was “giving us a hand”. There was a conversation between the three Oxley employees to the effect that the load was “a mess” and that whoever loaded it had not done a very good job. He said the load was untidy and was not very stable. He said the conservator which rolled onto the plaintiff was positioned so that its legs were leaning to the side of the truck in the direction in which it rolled.

18    Mr Carney held a crane chaser’s certificate. He said the conservators had been sitting on the truck unstrapped for a “good hour or more” before one of them fell, so “we assumed it was steady and they weren’t going to move.” Mr Page, the crane driver, thought it was safe because he assumed there had to be packers holding them in place.

19    Mr Carney understood that it was his main responsibility to sling the load and that the plaintiff was there to help. He described the problems encountered in slinging the first conservator and what the plaintiff did. His account accorded with the plaintiff’s. Mr Carney said he was standing on some steel which was protruding from under the conservators and the plaintiff could not reach the sling but when the plaintiff went round the rear of the truck to collect the hook which was on the ground, Mr Carney moved approximately three metres away from the conservators. He said that the crane was not lifting the conservator to which the one sling had been attached.

20    Mr Page provided the crane with himself as driver but did not provide a crane chaser. This was the usual practice if Oxley, as in this case, did not request a crane chaser. Mr Page said that when he arrived with the crane the ties which had held the load had been removed, at least in part. The equipment at the front of the truck was unloaded with Mr Carney slinging the loads and giving directions relating to the unloading. When the front portion of the load had been removed from the truck the crane was re-positioned towards the rear of the truck. One of the Oxley employees had put a strap around the front of the conservator on the driver’s side of the truck. When the second strap could not be placed around the conservator, Mr Page turned the crane off and alighted from it. The other conservator then rolled off the truck onto the plaintiff. Mr Page said that he was working under the direction of Mr Carney. He expressed the view that the accident occurred because of the way the conservators were placed on the truck, lengthways on top of pipes and other loose material. In his view, the manner in which they were loaded was not safe.

21    Brambles called a consultant transport engineer, Mr Colin Wingrove, who gave evidence that the industry practice made it the driver’s responsibility to ensure that his load was secure before he drove the vehicle. He said that the proper way of loading equipment such as the conservators was longitudinally on the truck, chocked to prevent them rolling and then tied down across the tray of the truck. Loaded as they were the conservators should, in Mr Wingrove’s opinion, have been lifted with a spreader on the crane. If there was a danger of instability in a load it should not be untied until the load was hooked to the crane. Mr Wingrove said that in the present case the sling should have been attached, and the tension taken up before the chains were taken off. Mr Page rejected the view that spreaders should have been used.

22    Mr Wingrove also said that both conservators should have been taken off together so the removal of one would not disturb the other and that a forklift, which Oxley had available, could have been positioned with its tines under the remaining conservator as a safety measure. He said that a person standing on the loose material on the truck had the potential to affect the stability of the conservator.

23    Mr Wingrove was cross-examined about the way in which the conservators had been loaded on the truck and asserted that there was nothing uncommon in the way that it was done if it had been chocked and battens placed under the conservators. “It may well have been stable.” Bruce J observed that Mr Wingrove did not say that the method of loading was either proper or safe.

24    The driver of the truck gave evidence. Bruce J said that his statement of the manner of loading and securing the conservator and of the events at Oxley’s depot leading to the plaintiff’s injury, were substantially inconsistent with virtually all the other evidence and he did not accept it, except where it accorded with other evidence.

Brambles’ Liability

25    The accessories were loaded onto two trucks in Canberra, under the supervision of Oxley, as was provided for in its agreement with Brambles, and carried to Sydney in a manner which was safe and which apparently was not likely to cause any injury to anyone involved in unloading them. There was no suggestion that the loading of the trucks was deficient in any way relating to safety.

26    When the equipment was in Sydney, Brambles formed the view that for reasons of economy the load should be consolidated onto one truck. Brambles made the decision to consolidate the load in the middle of the trip. The consolidation was done in its depot. Mr Sanchez and the driver of the truck which travelled to Taree carried out the re-loading at Brambles’ depot using a crane and driver provided by Brambles. Mr Birchmore said that Brambles were responsible for checking the load for safety as it was done at its decision. The truck was loaded as it was for the journey from Sydney to Taree, as the result of Brambles decision to change the loading configuration and mode of carriage from the way in which it left Canberra where Oxley’s representative supervised the loading.

27    Mr Birchmore said that it was important for Brambles to properly co-ordinate the loading and to ensure that all loads left its depot safely secured and safely loaded. It was important that goods were loaded in a way which made it safe for people who might be working in areas where the goods were loaded or unloaded. As to the method of loading he said:

“Any truck driver wouldn’t put 2 inch pipes on the truck and then load it with equipment on top of it” and “well, there is no way anybody would put these two tanks on top of pipes” and “…..if it [pipe] was underneath it wouldn’t be too safe, no”.

28    In the present case Brambles had no knowledge of the level of competence and skill of the driver of the truck other than that he was apparently licensed to drive. It was clear that injury could occur to persons involved in the unloading if proper precautions were not taken. In the circumstances Brambles had a duty to ensure either that the contractors it engaged had sufficient and appropriate skills to perform the task required or, alternatively, that the task was carried out in a manner which did not create a risk for persons who would be involved in unloading. In Bruce J’s view the evidence of the manner in which the equipment was loaded established a lack of care in carrying out that task. The two conservators were loaded on top of a collection of material and not on a flat and necessarily stable base. The load was not loaded or chocked by the driver of the truck on a wooden frame. There was metal of various sizes and shapes running across the truck underneath the conservators. In Mr Birchmore’s words to load the conservators with material running across the truck “wouldn’t be too safe”.

29    Mr Wingrove expressed views as to the way in which the load should have been unloaded. Bruce J said that his evidence did not avoid liability on the part of Brambles but pointed to the liability of others as well.

30    In summary, Bruce J held that both Brambles and Parra-Trans were in breach of their duty which caused injury to the plaintiff when the conservator rolled off the truck and onto the plaintiff. Accordingly, both Brambles and Parra-Trans were liable to the plaintiff. As Parra-Trans was deregistered at the time of judgment, and no attempt was made to take the formal steps necessary to enable proceedings to be continued against it, the finding against it can be ignored. It did not feature in the apportionment of liability.

Oxley’s Liability

31    Although the plaintiff was an electrical fitter who had a crane chaser’s certificate and used that qualification from time to time in the course of his employment he was not engaged in that activity as a regular part of his employment. On the day in question he was asked by Mr Sunderland to “keep an eye” on the unloading of the truck by the other two employees. Mr Sunderland left the premises and there was no supervision or instructions given as to how the task given to Messrs Carney and Murton should be carried out. Mr Carney held an appropriate ticket and assumed de facto control and supervision of the unloading of the truck. There was nothing to suggest he had any significant unloading experience as he was employed to perform other activities for Oxley. The plaintiff’s activity was limited to assisting Mr Carney by such actions as passing slings and the like. Mr Carney made decisions and gave directions.

32    The load was untied and the conservator sat for a period of perhaps one hour without moving while the load on the front of the truck was removed. One of the conservators then fell for no apparent reason. Bruce J said that the system of work in which the plaintiff was engaged was unsafe. No directions were given by anyone in authority as to how the work was to be carried out and no warnings were given of any danger in carrying out the work. No check was made to ensure that the conservators were adequately chocked. The conservators were unsecured before the time for their removal and no instructions were given by anyone in authority at Oxley not to leave them unsecured. The parties generally accepted that the loading was unsafe. Oxley had a duty to ensure that the unloading process was safe for its employees and it breached that duty either by failing properly to instruct Mr Carney as to what should have been done or, by Mr Carney failing to ensure that the load remained properly secured until it was lifted from the truck. Mr Carney did not take any steps to secure the conservator which fell onto the plaintiff even though the conservator next to it was to be lifted.

33    Bruce J said:

“The load was unstable and there was a danger of it moving if it was unsecured, it was unsecured, it did move and the cause or the lack of explanation of the cause, does not in the circumstances of this case, affect the question of liability. In my view the plaintiff is entitled to succeed against Oxley.”

34    Neither Brambles nor Oxley challenged the conclusion that each was negligent and liable to the plaintiff for damages. The issue was how those damages should be apportioned between the two appellants.

Assessment of Damages and Apportionment

35    Bruce J published reasons for judgment on 6 December 1996, in which he reviewed the evidence of the plaintiff’s injuries and the medical evidence and asked the parties to check his calculations of damages. Nothing was said in these reasons about apportionment. Submissions were subsequently put about apportionment, notably by the plaintiff who submitted that Brambles should be held 90 per cent liable and Oxley 10 per cent liable. As far as can be seen and as we have been told from the bar table, no further submissions were made about Oxley’s claim against Brambles in contract. There were further mentions and finally on 14 February 1997, nearly two years after the hearing, Bruce J published a supplementary judgment in which he said no more about apportionment than:

“7. On the cross-claims I make the following orders:


(a) As between the first and second defendants I find the first defendant 60 per cent liable and the second defendant 40 per cent liable. The first defendant is entitled to recover $308,583.16 from the second defendant by way of contribution.

(b) The second defendant is entitled to recover the sum of $462,874.75 from the first defendant by way of contribution.”

36    The combined reasons for judgment added a failure to give reasons to the consequences of delay in deciding what was a straightforward claim for damages for personal injuries suffered as a result of negligence.

37    In Goose v Wilson Sandford & Co (unreported) English Court of Appeal 13 February 1998 at para 112 the English Court of Appeal pointed out that a judge’s tardiness in completing his or her judicial task, after a trial is over, denies justice to the winning party during the period of delay and undermines the loser’s confidence in the correctness of the decision.

38    The giving of reasons is an incident of the judicial process founded on the principle that justice must not only be done but must be seen to be done. Amongst other purposes it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. In doing so it furthers judicial accountability. In the case of an appeal, it allows the parties to test the decision and the appellate court to decide whether the decision was vitiated by error. In the present case the failure to give reasons explaining the apportionment chosen cannot be justified and denied the parties the proper resolution of the dispute to which they were entitled; see generally Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278 - 281 per McHugh JA.

39 Bruce J calculated the damages payable, without adjustment, as $929,238.10 by Brambles and $771,457.92 by Oxley. Adjustments pursuant to s151Z (2) of the Workers Compensation Act reduced the amount recoverable against Brambles to $866,126.02. The amount recoverable against Oxley was reduced to $694,030.58 [sic] by subtracting an agreed amount of $77,427.30 for workers compensation which Oxley had previously paid to the plaintiff. The parties accepted that these amounts were correctly calculated. The formal judgment required the first defendant to pay to the plaintiff $866,126.02 and the second defendant to pay to the plaintiff $694,030.58. However, the amount recoverable by the plaintiff against Brambles should also have been reduced to $788,698.68 to allow for the payment of $77,427.30 which the plaintiff had already received.

40    Bruce J plainly intended that the plaintiff should receive no more and no less than $866,126.02. Assuming, as was undoubtedly the case, that both Brambles and Oxley were financially able to pay any amount they were ordered to pay, it was, I think, his Honour’s intention that of that amount Brambles would pay $557,542.86 and Oxley $308,583.16.

41    If Oxley had paid the plaintiff $694,030.58, Brambles would have had to pay to the plaintiff the difference between that amount and $788,698.72, namely $94,668.14, and, to Oxley, $462,874.75, which produces a net total of $557,542.89. In the result Oxley would then have paid $694,030.58 together with $77,427.30 and received a contribution of $462,874.75. Its total net liability would have been $308,583.13, or 40 per cent of the unadjusted verdict against it.

42    Bruce J fixed the amounts of contribution by reference to Oxley’s unadjusted liability. $308,583.16 is 40 per cent, and $462,874.75 is 60 per cent of $771,457.92, the damages payable by Oxley before the deduction of $77,427.30 for workers compensation payments. This was erroneous. If Brambles had paid the plaintiff $788,698.68, it would have been able to recover from Oxley the contribution of $308,583.16. Accordingly, its net liability would have been $480,115.52 and Oxley’s net liability would have been the sum of $308,583.16 and $77,427.30 which is $386,011.08. This is more than 50 per cent of its adjusted liability to the plaintiff. As the orders were, if Brambles had paid the verdict, Oxley would have been liable to contribute considerably more than 40 per cent of the damages awarded against it and Brambles considerably less than 60 per cent of the damages awarded against it.

43    The error was the failure to deduct from the contribution to be made by Oxley the amount of $77,427.30 which it had already paid to the plaintiff. For the purposes of apportionment between Brambles and Oxley the $77,427.30 paid by Oxley had to be brought into account. To achieve Bruce J’s intention Oxley’s contribution should have been $231,155.86. This would make Brambles’ net liability $557,542.82 or about 64 per cent of $866,126.02, which was the total amount the plaintiff was to receive including the payment of workers compensation already received. The amount Oxley was ordered to pay by way of contribution to Brambles should be adjusted accordingly.

The amounts of the separate verdicts

44    Submissions were put to the Court that the judgments in favour of the plaintiff should reflect the apportionment. Reliance was placed upon Grove J’s decision in Lewis v G H Varley Pty Limited (unreported) 18 October 1996. Despite a different indication by Brambles, it seems that the plaintiff was paid a total of $866,126.02 by way of damages which should have consisted of $557,542.42 paid by Brambles, and $308,583.17 paid by Oxley, including the workers compensation payment of $77,427.30. This meant that Oxley paid a total of $308,583.16, which represented, as I have pointed out, 40 per cent of the damages, unadjusted, payable by it.

45    However, Mr Donovan QC, who appeared for the plaintiff, said that the total payable and received by the plaintiff was $788,698.68, which was the total amount Bruce J awarded against Brambles, $866,126.02 less the credit of $77,427.34. Of this total of $866,126.02 Oxley paid or should have paid 40 per cent, $346,450.41, which included the credit, and Brambles paid or should have paid 60 per cent, $519,675.61. This is inconsistent with the orders made on the cross-claim and meant that while Brambles paid 60 per cent of the amount of the damages awarded against it, Oxley paid nearly 45 per cent of the amount of the damages awarded against it. I do not think this accorded with the trial Judge’s intention.

Effect of the Workers Compensation Act adjustments and of apportionment on the verdicts

46 Part 5 of the Workers Compensation Act 1987, as in force at the relevant time, deals with common law remedies. Division 3 of Pt 5, which is headed “Modified Common Law damages”, applies to an award of damages in respect of an injury to or the death of a worker resulting from or caused by an injury where the injury is caused by the negligence or other tort of the worker’s employer. In Grljak v Trivan Pty Limited (In Liquidation) (1994) 35 NSWLR 82 at 85, Mahoney JA said, in a judgment with which Kirby P and Priestley JA agreed, that the purpose of these provisions “is, inter alia, to limit a recovery at common law to cases where the worker has suffered substantial rather than insubstantial injury, to limit the amounts which may be awarded in respect of non-economic loss, and to make other provisions in respect of the more conventional heads of damage.” In that sense the amount which otherwise would have been recoverable at common law against the employer for negligence is modified. Section 151S (1) in Div 3 provides:

“If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.”

47 Division 5 in Pt 3 is headed “Miscellaneous provisions” and s151Z “Recovery against both employer and stranger”. Subsection (2) applies in the case where “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.”

48    In such case the following provisions, relevantly, 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.”

49    In Grljak v Trivan Pty Limited, Trivan was engaged in a substantial building project for which it engaged Gawa Pty Limited as a sub-contractor. The plaintiff, Mr Grljak, was employed by Gawa on the project when he was injured. The trial judge apportioned liability as to 90 per cent to Trivan and 10 per cent to Gawa. At 88-89 Mahoney JA said, speaking of s151Z (2) (c) and (d):

“The operation of the first part of the formula is clear. The judge, acting under the Law Reform (Miscellaneous Provisions) Act 1965 concluded that as between Trivan and Gawa, as co-tortfeasors, Trivan would recover a 10 per cent contribution if sued for it. For present purposes that is not in contest. Accordingly this amount is $18,600.
It is the second step in the formula upon which the argument of Mr Hughes QC has focused. This step requires that the court determine ‘the amount of the contribution recoverable’. Paragraph (d) provides that that ‘is to be determined as if the whole of the damages were assessed in accordance with the provisions of Div 3 as to the award of damages.’ This means, I think, that in determining what is the contribution recoverable, the court is to assume that the damages which the third party must pay are those damages which would have been paid ‘if the whole of the damages were assessed in accordance with the provisions of Div 3 as to the award of damages.’ If, in this hypothetical exercise, the court calculated the damages recoverable in accordance with Div 3, the result would, as I have said, have been that no damages would have been payable: this would have been the result of the operation of the specific provisions of Div 3. Therefore, in determining what contribution Trivan can, under the 1965 Act, recover from Gawa, it is to be assumed that the damages payable by Trivan are reduced to nil. Accordingly, Trivan would not recover any sum by way of contribution from Gawa.
If the formula be applied in this way, then there is nothing to be deducted from $18,600 and accordingly it is the amount by which $18,600 ‘exceeds the amount of the contribution recoverable’, viz $18,600 which is to be deducted from the workers common law damages.”

50    It is not suggested that Bruce J did other than apply this formula but the damages were so adjusted on the assumption that the total amount recoverable from the employer, if the damages were assessed in accordance with the provisions of Div 3, was 40 per cent of $771,457.92, that is to say $308,583.16. This was the amount that on the cross-claim Bruce J said Brambles was entitled to recover from Oxley.

51 In the relevant parts of s151Z there is nothing which inhibits the Court from entering verdicts for the full amount of the damages payable by each of the first and second defendant, as was done in this case. Nor do I think there is anything in s151S (1) which has this consequence. As part of his judgment, Bruce J declared what portion of the sum awarded was damages to which Div 3 applied namely $771,457.92.

52    In XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1985) 155 CLR 448, the High Court held that s5 (1) of the Law Reform (Miscellaneous Provisions) Act1946 abolished the common law rule that only one judgment could be awarded in an action for damages against joint tortfeasors. The case was concerned with an award of exemplary damages against one of three joint tortfeasors. At 470 Brennan J said:

“By providing for contribution between tortfeasors in respect of compensatory damages according to their respective responsibility, s5 (1) avoids the possibility that one of the judgment debtors might be called on by the plaintiff to bear the whole of the liability for compensatory damages without recourse to the other judgment debtors. By providing for contribution in respect of compensatory damages, s5 (1) facilitates the assessment of a condign punishment appropriate to be inflicted on the individual tortfeasor…………When an award of exemplary damages is made against a tortfeasor, it may be necessary to specify in the judgment the respective amounts assessed as exemplary damages and as compensatory damages in order to identify the amount to which s5 (1) (b) and (c) might apply.”

53 Section 5 (2) provides that in any proceedings for contribution under the 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 persons responsibility for the damage. Where different amounts of damages are awarded against co-tortfeasors, there is, in my opinion, nothing wrong in principle with the judge concluding on the basis that it is just and reasonable having regard to the extent of the responsibility of one, that that tortfeasor should pay no more than a percentage proportion of the damages awarded against it.

54    However that may be, neither the Workers Compensation Act nor s5 of the Law Reform (Miscellaneous Provisions) Act require or allow an adjustment of the amount of damages that a plaintiff can recover from any tortfeasor by paying regard to the apportionment. Even less is this so, if as proposed by Brambles, the consequence would be that Brambles’ liability to the plaintiff was limited to $519,675.61, which is 60 per cent of $866,126.02 and Oxley’s liability limited to $231,155.87, which is 40 per cent of $771,457.92 less $77,427.30. This would deny the plaintiff his due entitlement and limit it to $828,258.78.

Apportionment

55    Both Oxley and Brambles submitted that the apportionment of liability between them was wrong. Bruce J did not explain his apportionment decision. This being so, this Court may infer that in some way there has been a failure properly to exercise the discretion which the law opposed in the court at first instance, if upon the facts the result embodied in the order for apportionment was unreasonable or plainly unjust; House v The King (1936) 55 CLR 499 at 505. The arguments on each side were powerful and persuasive. Oxley stressed that in failing properly to re-load the goods, Brambles had created an abnormal and dangerous situation. Furthermore, having supervised the loading in the ACT it was said that Oxley was entitled to proceed on the basis that as it arrived at Taree it would be so loaded.

56    Brambles emphasised the non-delegable duty of the employee, Oxley, to provide a safe system of work (Kondis v State Transport Authority (1984) 154 CLR 672), Oxley’s knowledge that the load had shifted and the lack of proper instructions and supervision by Oxley of its employees.

57    In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 493-4 the High Court said:

“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds’: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. …..
The making of an apportionment as between a plaintiff and a defendant between their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; ……”

58    See also Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 at 68. While I, myself, would have favoured an apportionment of 50 per cent, I am not persuaded that Bruce J’s decision on apportionment was unreasonable or plainly unjust. Accordingly, I would reject each party’s claim to vary the apportionment.

Damages in Contract

59    Bruce J did not deal with this part of the case. After nearly two years it may have been overlooked. Apparently the parties did not draw attention to this oversight after 6 December 1996. At that time there was some confusion in the law and a proper submission would have required detailed references to authority and careful presentation. There is no sign that this was done.

60    Oxley’s case is that Brambles, having unilaterally in the course of carrying out the contract decided to re-load the goods from two trucks onto one, must be taken to have agreed to do so on condition that the goods would be loaded and secured with reasonable care and skill so that they could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to employees of Oxley who were to assist in their unloading. The correctness of this proposition can hardly be gainsaid. The term can be regarded as a particular incident of a contract for the carriage of goods, otherwise silent on the subject, where for any reason of necessity or otherwise the carrier off-loads and re-loads goods during the course of carriage; compare Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349 at 363-4 and the cases there referred to.

61    Further, there could, it seems to me, be little doubt that if Oxley suffered damage as a result of the breach of this contract, the measure of damages would be the damages and costs Oxley was required to pay to the plaintiff and the costs Oxley incurred in defending the proceedings; Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588 at 591, 598-9. It mattered not that Oxley was a co-tortfeasor with Brambles or that each was entitled to recover contribution from the other in respect of the damage suffered as a result of the other’s tort.

62    In Astley v Austrust Limited the High Court considered the application of the Wrongs Act 1936 (South Australia) to an action for breach of contract. Section 27A (3) of that Act provided that where any person suffered damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage should not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof should be reduced to such extent as the court thought just and equitable having regard to the claimant’s share in the responsibility for the damage. “Fault” was defined in the section to mean negligence, breach of statutory duty or other act or omission which gave rise to a liability in tort or would have, apart from the Act, given rise to the defence of contributory negligence. Compare Pt III of the Law Reform (Miscellaneous Provisions) Act1965, the equivalent legislation in New South Wales.

63 In a joint judgment the majority of the Court pointed out (73 ALJR at 412 and 415) that s27A (3) was concerned with claims in tort (para 41) and unconcerned with contractual claims (para 49). At 423 (para 89) their Honours said:

“a construction applying the apportionment legislation to contract cases is contrary to the text, history and purpose of the legislation. That means in this case that, although the learned trial judge was correct in finding that Austrust was guilty of contributory negligence, that finding could only apply to the assessment of damages in the tort claim. It had no application to Austrust’s claim for breach of contract.”

64 The present dispute does not involve defences based on contributory negligence but proceedings for contribution pursuant to s5 (1) and (2) of the Law Reform (Miscellaneous Provisions) Act 1946 which, so far as relevant, provides:

“(1) Where damage is suffered by any person as a result of a tort …..
(c) Any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor, who is, or would if sued have been, liable in respect of the same damage, whether as joint tort-feasor or otherwise….
(2) In any proceedings for contribution under this 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; ……”

65    The majority decision in Astley v Austrust turned in part, at least, upon the conclusion that contributory negligence historically was a defence to a claim in tort but not to a claim in contract, and that decisions applying the apportionment legislation to contract claims adopted a strained interpretation of that legislation. However, under the heading “Policy considerations” their Honours said at 73 ALJR 422-3:

"84. It seems likely that those judges who have held that apportionment legislation applies to contract claims have regarded the contrary view as either anomalous or unfair or both; Doiron v Caisse Populaire D’Inkerman Ltee (1985)17 DLR (4th) 660 at 679. But when the nature of an action for breach of a contractual term to take reasonable care and the nature of an action in tort for breach of a general law duty of care are examined, it is by no means evident that there is anything anomalous or unfair in a plaintiff who sues in contract being outside the scope of the apportionment legislation. Tort obligations are imposed on the parties; contractual obligations are voluntarily assumed. In Simonius Vischer [1979] 2 NSWLR 322 at 349 Samuels JA noted that ‘the first count founds upon a duty imposed by the relationship in which the parties stood, and the second upon a duty imposed by their agreement’. In Henderson [1995] 2 AC 145 at 194, Lord Goff of Chieveley emphasised the will of the parties as the factor which supported different results in contract and tort".
‘The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him.’
85. In contract, the plaintiff gives consideration, often very substantial consideration, for the defendant’s promise to take reasonable care. The terms of the contract allocate responsibility for the risks of the parties’ enterprise including the risk that the damage suffered by one party may arise partly from the failure of that party to take reasonable care for the safety of that person’s property or person. Ordinarily, that risk is borne by the party whose breach of contract is causally connected to the damage. Rarely do contracts apportion responsibility for damage on the basis of the respective fault of the parties. Commercial people in particular prefer the certainty of fixed rules to the vagueness of concepts such as ‘just and equitable’. That is why it is commonplace for contracts to contain provisions regulating liability for breach of a duty to take reasonable care, whether by excluding liability altogether or limiting it in some other way.
86. Absent some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent the plaintiff in a case such as the present recovering for all the damage that is causally connected to the defendant’s breach even if the plaintiff’s conduct has contributed to the damage which he or she has suffered. By its own voluntary act, the defendant has accepted an obligation to take reasonable care and, subject to remoteness rules, to pay damages for any loss or damage flowing from a breach of that obligation. If the defendant wishes to reduce its liability in a situation where the plaintiff’s own conduct contributes to the damage suffered, it is open to the defendant to make a bargain with the plaintiff to achieve that end. Of course, the result of such a bargain may be that the defendant will have to take a reduced consideration for its promise to take reasonable care. But the bargain will be the product of the parties’ voluntary agreement to subject themselves to their respective obligations.
87. In an action in tort, however, the duty of the defendant to take reasonable care and the obligation of the plaintiff to take reasonable care for his or her own safety or interests are imposed on the parties by law. Absent a contractual stipulation varying the rights of the parties, it is the general law that defines their rights and liabilities. It is one thing to apportion the liability for damage between a person who has been able to obtain the gratuitous services of a defendant where the negligence of each has contributed to the plaintiff’s loss. It is another matter altogether to reduce the damages otherwise payable to a plaintiff who may have paid a very large sum to the defendant for a promise of reasonable care merely because the plaintiff’s own conduct has also contributed to the suffering of the relevant damage.”

66 The application of s5 (1) of the 1946 Act is conditioned upon damage being suffered by a person as a result of a tort, and enables a tortfeasor, in this case Brambles, to recover contribution in respect of that damage from any other tortfeasor liable in respect of the same damage whether as a joint tortfeasor or otherwise (Oxley).

67    While the legislative scheme the High Court considered in Astley v Austrust was different in text, history and purpose, the reasoning confirms the distinction between obligations in tort and obligations in contract and the preservation of the right of a party, which suffered damage as a result of a tort, to pursue its remedies for any breach of a contract between it and the tortfeasor. Brambles’ obligation to Oxley flowed from a promise voluntarily made for good consideration. In the absence of some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent Oxley recovering for all the damage that is causally connected to Brambles’ breach of contract even though Oxley’s conduct contributed to the damage which it suffered. By its own voluntary act, Brambles accepted an obligation to load and secure the goods with reasonable care and skill so that they could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to Oxley’s employees there to assist in the unloading, and to pay damages for any loss or damage flowing from a breach of that obligation. (Compare Astley v Austrust 73 ALJR at 423 para 86).

68 Accordingly s5 (1) of the 1946 Act does not affect Oxley’s right to recover damages for breach of contract. The amount of the damages would be measured by the damages and the costs Oxley was ordered to pay to the plaintiff and its own costs of the proceedings brought by the plaintiff against it, less any amount paid by Brambles on account of those damages and costs.

69    Brambles’ claim in contract is not so clear. It was obliged to carry the goods to the Oxley depot and there deliver them on its truck. Oxley had the obligation of unloading. No doubt it was contractually obliged to do so so as not to damage Brambles’ property or injure Brambles’ employee or contractor. But the damages for breach of the contract which Brambles now claims to recover, being the amount of its liability to the plaintiff, were, in my opinion, too remote. I say this for the following reasons. The degree of probability that Oxley’s breach of the contract would cause Brambles to suffer loss as the result of a claim against it by an employee of Oxley for injuries suffered was such as to make the loss wholly unpredictable; see generally Greig & Davis, The Law of Contract, at 1376. In my opinion, damages for the loss which Oxley suffered as a result of the injury to its employee and its liability as employer to that employee could fairly and reasonably be considered to arise according to the usual course of things from Brambles’ breach of its contractual obligation to load and secure the goods with reasonable care and skill. However, I do not think that the possibility of Brambles’ liability to Oxley’s employee flowing from the consequence of Oxley’s failure to unload the goods with reasonable care and skill could fairly and reasonably be considered to arise according to the usual course of things; compare Florida Hotels v Mayo at 598. Nor do I think such damages could reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as not unlikely to occur; compare Hadley v Baxendale (1854) 9 Ex 341 at 355; 156 ER 145 at 151; Koufos v C Czarnikow Limited [1969] 1 AC 350 at 388; Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 363 and following per McHugh JA.

70    In Wenham v Ella (1972) 127 CLR 454 at 466-7 Walsh J said:

“Lord Wright [in Monarch Steamship Co Limited v Karlshamns Oljefabriker (A/B) [1949] AC 196] went on to say that remoteness ‘is in truth a question of fact’ [1949] AC at 223 and he cited a passage from the speech of Lord Haldane in an earlier case, to the effect that the apparent discrepancies found in the statements of general principles governing damages are due mainly to the varying nature of the particular questions which have arisen in different cases and to the need to mould the expression of the general principles, in applying them to the circumstances of particular cases. Lord du Parcq expressed agreement with what Lord Wright had said and added [1949] AC at 232:
‘Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality, and not too rigidly applied. It was necessary to lay down principles lest juries should be persuaded to do injustice by imposing an undue, or perhaps an inadequate, liability on a defendant. The court must be careful, however, to see that the principles laid down are never so narrowly interpreted as to prevent a jury, or judge of fact, from doing justice between the parties. So to use them would be to misuse them.’ ”

71    In my opinion, justice between the parties requires that the loss suffered by Brambles in consequence of Oxley’s breach of contract be treated as too remote. Accordingly, the claim by Brambles against Oxley in contract must fail.

Order for Costs

72    Oxley appealed against the order that it pay the costs of Patuse which the plaintiff was liable to pay directly to Patuse. Brambles did not challenge this order so far as it was concerned. Bruce J gave no reasons for making the order.

73    Oxley submitted that the joinder of Patuse occurred by reason of the defence and cross-claims of Brambles in the proceedings and that only Brambles and the plaintiff claimed that Patuse was liable. In Norwest Refrigeration Services Pty Limited v Bain Dawes (WA) Pty Limited (1984) 157 CLR 149, the plaintiff sued an insurer for indemnity under a policy covering its vessel, which had been destroyed, and a co-operative and an insurance broker for failing to arrange suitable cover or alternatively warning the plaintiff about an exclusion clause. The insurer successfully relied on the exclusion clause at trial. The trial judge dismissed the claim against the other defendants.

74    An appeal by the plaintiff to the Full Court of the Supreme Court of Western Australia failed against the broker but succeeded against the co-operative. The co-operative was ordered to pay the costs of the plaintiff and the broker but not of the insurer. The co-operative appealed to the High Court seeking the restoration of the trial judge’s decision and the plaintiff appealed against the dismissal of its claim against the broker and renewed its claim for a “Bullock Order” in respect of the insurer’s costs. The co-operative’s appeal and the appeal by the plaintiff against the broker failed. At 163 in the joint judgment of the majority of the Court it was said:

“Norwest also seeks a Bullock order ( Bullock v London General Omnibus Company [1907] 1 KB 264) requiring the Co-operative to indemnify it against the costs it is required to pay the insurer. Such an order may be made where the costs in question have been reasonably and properly incurred by a plaintiff as between him and an unsuccessful defendant: Johnsons Tyne Foundry Pty Limited v Maffra Corporation (1948) 77 CLR 544 at 572; Altamura v Victorian Railways Commissioners [1974] VR 33. The making of such an order lies within the discretion of the court. Although, in the Full Court, Norwest succeeded in its action against the Co-operative, their Honours refused to order the latter to indemnify the former against the costs of the insurer. With all respect, we do not think the court erred in the exercise of its discretion. Norwest sued the insurer on the insurance policy. It was a straightforward action which was not interdependent with or in any real sense alternative to the claim against the Co-operative.”

75    In Gould v Vaggelas (1985) 157 CLR 215 at 229 Gibbs CJ said:

“It is sometimes said that the court may make an order of that kind - a Bullock order - where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants: see the Supreme Court Practice (UK) 1982, para 62/39 and Halsbury’s Laws of England, 4th ed, vol 37, para 219. There are some statements in the authorities which appear to support that view, including the judgment of Latham CJ in Johnsons Tyne Foundry Pty Limited v Maffra Corporation (1948) 77 CLR 544 at 556. In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution.”

76    Gibbs CJ adopted a passage from the judgment of Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100, when he said that:

“There is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant.” [157 CLR at 230].

77 See also 157 CLR at 246-7 and 260.

78    Again this Court will not intervene unless satisfied that his Honour’s order was unreasonable or plainly unjust. However, I am persuaded that what Gibbs CJ said in Gould v Vaggelas demonstrates there was no basis for ordering Oxley to contribute to the costs of Patuse. Oxley, in its defence, denied that it was negligent and claimed that the plaintiff was guilty of contributory negligence. But it did not seek to argue that the plaintiff’s injuries were the result of any act or omission by Patuse. To the extent that that was suggested during the trial it was suggested by the expert called for Brambles, Mr Wingrove, who said that the conservators should have been lifted with a spreader on the crane. In my opinion, Bruce J’s order that Oxley contribute to Patuse’s costs should be set aside.

Orders

79    I propose the following orders:

Oxley’s Appeal No 40117/97

1. Appeal allowed;

2. Set aside order 6 made by Bruce J on 14 February 1997 and in lieu thereof order that the plaintiff pay the costs of the fourth defendant and the first defendant pay those costs directly to the fourth defendant and the fourth defendant be entitled to seek assessment and execution in relation to the assessment directly against the first defendant.
3. Set aside order 7 (a) and (b) and in lieu thereof declare that the second defendant is entitled to recover from the first defendant by way of damages the amounts which the second defendant has paid or is called upon to pay to the plaintiff by way of damages and costs and to the first defendant, by way of contribution.
4. The respondent, Brambles Holdings Limited, to pay the appellant’s costs of the appeals and the proceedings before Bruce J.
5. Patuse to pay so much of the appellant’s costs of the appeal as relate to the appeal against the order that the appellant contribute to Patuse’s costs.

6. Remit to the Common Law Division the assessment of damages pursuant to the declaration in 3 above, if such damages are not agreed between the parties.

Brambles’ Appeal No 40121/97

1. Appeal allowed;

2 . Set aside order 1 and in lieu thereof order that the first defendant pay to the plaintiff the sum of $788,698.68, this judgment to take effect on 14 February 1997.

Otherwise Orders 2, 3, 4 and 5 and 7 (c) and (d) are confirmed.

80    POWELL JA: I agree with Sheller JA.

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