Ricciotti v Coomblas and Ors No. Scgrg-96-2202 Judgment No. S6678

[1998] SASC 6678

RICCIOTTI  v  COOMBLAS and ORS

Perry J

The plaintiff sues for damages for personal injury suffered by him in a road accident which occurred on Friday 19 November 1993.

At the time he was a passenger in a van being driven by Andrew Gee (“Gee”).  Both Gee and the plaintiff were employees of Australian National Railways Commission (“ANRC”).  The accident occurred in the course of their employment.  Gee was driving the van on Long Plains Road at Windsor when it came into collision with a truck which was being driven on Port Wakefield Road at the junction of the two roads.  The truck was being driven by Nicholas Dimitri Coomblas (“Coomblas”), who was driving the truck in the course of his employment by MacMahon Construction Pty Ltd (“MacMahon”).

It is alleged in the pleadings that MacMahon and the State of South Australia (“South Australia”) had entered into an agreement for road construction work to be performed by MacMahon.

The plaintiff brings the proceedings against Coomblas, South Australia and MacMahon.

In his statement of claim he alleges that Coomblas was negligent having regard to his manner of driving the truck; that South Australia was negligent in that, through the agency of the Commissioner of Highways, it failed to place appropriate warning signs at the junction; and that MacMahon was negligent in that it failed to erect at the junction what is described in the pleadings as “a hazard board or bunting” and other warning signs.

The plaintiff is alleged to have suffered serious injuries.  He claimed compensation from ANRC pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Compensation Act”).

The three defendants have issued various third party notices and contribution proceedings.  Coomblas has issued third party notices against Gee and ANRC, the latter as Gee’s employer.  Coomblas claims contribution or indemnity from them with respect to any liability which may be established in the action by the plaintiff against Coomblas.

The three defendants have exchanged contribution notices, claiming in turn an indemnity or contribution against any liability which may be established against them by the plaintiff.

It is one of the grounds of defence raised by Gee and ANRC which is important for present purposes. They plead that Coomblas is barred from seeking indemnity or contribution from either of them by reason of s44 of the Compensation Act.

On 1 December 1997, Master Kelly ordered that the point of law as to whether the claims for indemnity or contribution made against Gee and ANRC are barred pursuant to s44, be tried as a preliminary issue.[1]

[1]    See SCR R 75.02.

The Compensation Act is an Act relating to the rehabilitation of employees of the Commonwealth and certain corporations, and provides a scheme of workers compensation for such employees. The Act establishes a body called ComCare (s68). Broadly speaking, it is the role of ComCare to make determinations with respect to claims advanced by employees under the Act, and to assist in their rehabilitation (s69).

ComCare is liable to pay compensation in accordance with the Act, inter alia, with respect to an injury suffered by an employee “arising out of, or in the course of, the employee’s employment .....” (s4).  Compensation includes the cost of medical treatment (s16), payment of weekly amounts during a period of incapacity (s19), and lump sum payments where the injury results in a permanent impairment.

The provision of lump sums payable with respect to injuries resulting in permanent impairment is dealt with under Part II, Division 4 of the Act, which encompasses ss24-28 inclusive.

Part IV is entitled “Liabilities arising apart from this Act”.  Part IV encompasses ss42 to 52 inclusive.

Of those last mentioned sections, the two which are most relevant for present purposes are ss44 and 45. They are as follows:

“44.(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b)the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury loss or damage occurred before or after the commencement of this section.

(2)    Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.

......... 45.    (1)    Where:

(a).... compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1) be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceedings against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.

(2)    Where an employee makes an election:

(a)subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and

(b)compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.

(3)    An election is irrevocable.

(4)    In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.”

During the course of argument, attention was drawn to the fact that s44(1)(a) only speaks of an injury sustained by an employee “in the course of his or her employment”, whereas the liability of ComCare to pay compensation in accordance with the provisions of the Act is with respect to an injury suffered by an employee “arising out of or in the course of, the employee’s employment”.[2]  It is, however, unnecessary to pursue the distinction between injuries which might be said to arise “out of”, as opposed to injuries arising “in the course of” the employment, as the statement of agreed facts put before me contains a concession that the plaintiff suffered injury “in the course of his employment”.

[2]    See definition of injury in s4.

It is agreed that ANRC is a Commonwealth authority within the meaning of s44(1)(a).

The right to contribution or indemnity sought to be exercised in the third party proceedings is a right which can only arise by statute, there being no common law right of contribution or indemnity in such circumstances:  see Merryweather v Nixan[3] and Weld-Blundell v Stephens.[4]

[3] (1799) 101 ER 1337.

[4] (1920) AC 956 at 976.

The relevant statutory provision is s25 of the Wrongs Act 1936 which provides in part:

“25(1).. Where damage is 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 will at any time have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise. ...”

The extent of any contribution is defined by s26:

“26... In any proceeding 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 tort 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.”

The words “complete indemnity” in s26 make it plain that insofar as Coomblas claims an indemnity as opposed to a contribution, the claim has the same statutory foundation.

The argument put forward by Mr Stanley on behalf of Gee and ANRC may be stated simply. He submits that unless and until the employee (the plaintiff) elects in writing to institute an action or proceeding against the Commonwealth within the meaning of those words in s45 of the Act, s44(1) operates as a complete bar to an action by him against either ANRC or Gee. In those circumstances, it could not be said that either ANRC or Gee “is, or would at any time have been, liable in respect of the same damage whether as a joint tortfeasor or otherwise” within the meaning of those words in s25(1)(c).

The “same damage” means, of course, the personal injury suffered by the plaintiff.  Mr Stanley contended that if there is no liability on the part of either Gee or ANRC to pay damages to the plaintiff with respect to his personal injury, and no such liability has existed at any time, there is no basis upon which either could properly be made liable for an order for contribution or indemnity under s25 of the Wrongs Act.

Long-standing authority has established that an action under s25 of the Wrongs Act, or the equivalent provisions in other jurisdictions for contribution or indemnity as between joint tortfeasors, is not an action for damages.  It is a statutory right of action which is sui generis.[5]

[5]    Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 86, 91. See also Tuckwood v Rotherham Corporation [1921] KB 526, George Wimpey & Co Ltd v British Overseas Airways Corporation (1955) AC 169 and Nichols v Parkes (1948) 49 SR (NSW) 124.

It follows that the third party claims in question are not directly barred by s44(1) of the Act. But in order for s25(1)(c) to avail Coomblas, he must be able to demonstrate that Gee or ANRC are either presently “liable” in respect of the plaintiff’s injuries, or “would at any time have been” so liable.

As to this aspect of the matter, Mr Walsh QC for Coomblas contends that s44(1) does not operate to extinguish liability, but only operates to bar the remedy.

I have some hesitation in accepting that analysis of s44(1). But even if it was to be correct, which I am prepared to assume for the purposes of the argument, it seems to me that Coomblas would still not bring himself within s25(1) of the Wrongs Act.  This is so as it seems to me that when s25(1)(c) uses the word “liable”, what is being identified is a liability capable of being enforced by an action or proceedings, or which at some time or other might have been so enforced.

Support for that construction of s25(1)(c) is to be found in s25(1)(ca).  This provides:

“25(1).. ..........

(ca).. a tort-feasor who, on or after the coming into operation of the Wrong Act Amendment Act 1959, becomes liable in respect of that damage may recover contribution from a third party as defined in subsection (2) of this section or commence proceedings for such recover notwithstanding-

(i)that judgment in an action founded on the tort has not been given determining the tort-feasor’s liability in respect of that damage; or

(ii)... that the plaintiff as defined in that subsection has released the third party from his liability to the plaintiff for that or any part of that damage; or

(iii).. that the plaintiff has not duly given any notice that would be required if the plaintiff were to recover judgment against that person; or

(iv)... that the time within which the plaintiff may commence action against the third party has expired; or

(v)that the third party is the Crown or an instrumentality of the Crown:”.

In that subsection, paragraphs (ii) (release), (iii) (notice before action), and (iv) (action out of time) identify situations which would ordinarily operate to preclude the commencement of proceedings, or the enforcement of a liability which otherwise might exist by resort to proceedings.  So that it seems to me that subs(ca) of s25(1) in part identifies a series of exceptions which otherwise might have precluded an action for contribution under s25(1)(c).  That tends to suggest that, were it not for subs(ca), s25(1)(c), when it speaks of a liability, is (subject only to those exceptions) speaking of a liability which may be, or could at any time have been, enforceable by the institution of proceedings.

Support for that line of reasoning would appear to be given by the decision of the High Court in Unsworth v Commissioner for Railways.[6]

[6] (1958) 101 CLR 73.

That case involved a widow’s action brought against the driver of a vehicle in which her husband had been a passenger and the Queensland Commissioner for Railways.  The plaintiff’s husband was killed in a collision between the vehicle and unlighted railway trucks standing at a level crossing.

The Commissioner’s liability was limited by statute to ú2,000.  The jury brought in a verdict against both defendants in the sum of ú5,615.

Under the Queensland provisions which are the equivalent of s25 of the Wrongs Act, liability was apportioned between the Commissioner for Railways and the driver of the car in which the deceased was a passenger as to 85% against the Commissioner and 15% as against the driver.  A question arose as to how the apportionment was to be carried into effect, given the statutory limitation upon the Commissioner’s liability.  The Queensland Act under which the contribution was awarded was the Law Reform (Tort-Feasor’s Contribution, Contributory Negligence, and Division of Chattels) Act 1952.  S5 of that Act relevantly provided:

“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 suit had been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise.”

S6 of the same Act provided, inter alia:

“In any proceedings for contribution under this Part of this Act 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 ........”

The majority (Fullagar and Taylor JJ, McTiernan ACJ expressing no opinion) held that in assessing the amount of the liability of the Commissioner for contribution, such amount should first be ascertained independently of the statutory provisions which limited his liability to ú2,000, but those provisions should then be applied to limit the amount of the Commissioner’s liability to that sum.

In the course of his judgment, Fullagar J observed:[7]

[7] Ibid 87.

“We have still to turn to s5(c) of The Law Reform Act to see what the appellant’s rights against the commissioner are.  His right is to recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage’.  Mr Mylne said that the commissioner was another tortfeasor who was liable with Unsworth for the wrongful causing of the death of King, and that s5(c) had no bearing on the quantum of the contribution recoverable.  But it is, in my opinion, clearly implicit in s5(c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability.  Contribution can only be recovered from one who ‘is, or would if sued have been, liable’ to pay damages to the person injured.  A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law.  In any case, I do not think that it could be lawfully held to be ‘just and equitable’ within the meaning of s6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount that he could be compelled to pay to the person injured.”

Insofar as Fullagar J observed in that passage that a person “cannot be said to be so liable except to the extent to which damages can be recovered from him at law”, Mr Walsh QC sought to distinguish the case on the footing that s5(c) of The Law Reform Act (Qld) contained the words “is or would if sued have been, liable” whereas s25(1)(c) of the Wrongs Act simply provides “would at any time have been, liable ..... whether as a joint tortfeasor or otherwise”.  But I am unable to accept the argument that the presence of the words “would if sued” in the Queensland legislation is a necessary element in the reasoning adopted by Fullagar J.  Further, it would be a strange construction of s25(1)(c) of the South Australian legislation if it obliged a tortfeasor to contribute towards damage suffered by an injured party who could not at any time have instituted proceedings to recover in respect of the same injury damages from the tortfeasor.

Even if I was to be wrong in that, it seems to me that the concluding sentence in the passage which I have cited from the judgment of Fullagar J is apposite.  That sentence makes it clear that in his view it would not be “just and equitable” to order a person “to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured”.  The same reasoning would apply, in my opinion, where it is not a question of paying by way of “just and equitable” contribution a “larger amount” than the person against whom the contribution is sought could be compelled to pay, but where that person could not be compelled to pay anything.

A question arises as to whether or not it could properly be said that there was ever a time at which the Commonwealth, or in the case of Gee, an employee of a Commonwealth authority, could have been sued for damages by the plaintiff.  Mr Walsh contended that from the time of the occurrence of the accident until the receipt by the plaintiff of compensation under either ss24, 25 of 27, Gee and ANRC were “liable” in respect of the plaintiff’s injuries.

But as to that aspect of the matter, I accept the reasoning of the Court of Appeal of New South Wales in Commonwealth of Australia v Flaviano and Anor.[8] In circumstances relevantly indistinguishable from those in the case at bar, that court held that unless and until an employee makes an election in writing pursuant to s45(1)(b) of the Act, no action lies against the Commonwealth.

As to this aspect of the matter, it has been agreed:

[8] (1996) 40 NSWLR 199.

1. That the plaintiff received compensation of $114,244.99 from ComCare pursuant to ss24 and 27 of the Act.

1. The plaintiff received that compensation on or about 19 December 1997.

1. The plaintiff has not made an election pursuant to s45(1)(6) of the Act.

No such election was ever made here.  Indeed, the plaintiff opted instead to claim compensation under the Act.  So that there was never a time when, in the relevant sense, the Commonwealth was liable in respect of the damage suffered by the plaintiff.

I mention, so that it is not overlooked, that even if an election was made under s45(1)(b) in any action for damages, the award for non-economic loss would be limited to $110,000 (s45(4)). It follows that if, contrary to the findings which I have made, there was to be an entitlement to contribution on the contribution notices now in question, on the authority of Unsworth v Commissioner of Railways (supra), the contribution could not exceed that amount.

It is true that the result of my analysis of the respective liabilities of the parties in this case, having regard to the operation of ss44 and 45 of the Act, means that Coomblas may become liable to pay a disproportionate share of any judgment which the plaintiff may recover. If the court was free to assess the relative responsibilities for the plaintiff’s damages of Coomblas on the one hand and Gee and ANRC on the other to, it might be that Gee and ANRC would be liable for a substantial, if not a major, share.

But that admittedly unsatisfactory result is a consequence of the fact that the draftsman of s25(1) did not contemplate or provide for a situation in which the liability of one of the tortfeasors might be limited or extinguished by operation of law independently of the section.  As it was put by Taylor J in Unsworth v Commissioner for Railway with respect to the Queensland provisions equating to ss25 and 26 of the South Australian Act:[9]

[9]    Supra at 92.

“These provisions take no account of the possibility that the liability of one of two tortfeasors to an injured party may be limited whilst that of the other is not .......  Whichever way the problem be resolved, anomalies will be created.”

I would answer the preliminary point of law as follows: the claims made against the second and third third parties are barred by the operation of s44(1) of the Compensation Act 1988 (Cth).