Arthur Fatur v Ic Formwork Services Pty Limited and Civil & Civic Pty Limited [2000] ACTSC 110

"21. Under reg 73 the duty is cast upon any person who carries out building work. The duty is directed at the protection of persons engaged in the building work. The exact scope of the duty as prescribed by reg 73(2) is to provide and maintain safe means of access to every place of work in which any person has to work at any time. There is nothing that restricts the scope of the duty to what is practicable or reasonable. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur: Trott v W E Smith (Erectors) Limited [1957] 1 WLR 1154, Brown v National Coal Board [1962] AC 574 per Lord Denning at 596.

22. The ramp was a means of access to the plaintiff's place of work in the basement. It was unsafe or dangerous because its surface being loose or unstable in parts was a possible cause of injury to persons like the plaintiff, who were likely to be walking down the ramp. Neither defendant provided safe means of access, and that failure resulted in the plaintiff's injury.

23. It is clear enough that the first defendant was carrying out building work being the construction of formwork for the liftshaft of the proposed building. It was conceded on behalf of the second defendant that the first defendant was carrying out building work, but it was submitted on behalf of the second defendant that, although it engaged various sub-contractors, including the first defendant, to undertake work to carry out the project, the second defendant was not carrying out the building work in which the plaintiff was engaged at the time of his injury. Therefore, a duty imposed by the regulation did not extend to the plaintiff....

24. ... The duty is imposed on any person who carries out any building work either directly or by servants, agents or independent contractors. The regulation expressly requires a person who carries out any building work either directly or by servants, agents or independent contractors, to take necessary measures to prevent injury to persons engaged in such building work. Thus, the regulation is cast widely enough to require a person, who, in pursuance of an undertaking being the erection of a building, engages a sub-contractor to construct the formwork incidental to the erection of the building, to take all measures for the prevention of injury to persons engaged in the construction of the formwork. The necessary measures include the provision and maintenance of safe means of access to every place at which those engaged in the construction of the formwork have to work at any time. Thus, the duty to comply with reg 73(2) is imposed on both defendants."

3. Section 11(1) of the Law Reform Miscellaneous Provisions Act 1955 (the Act) provides:

"11(1) This section applies where damage is suffered by a person as a result of a tort (whether a crime or not)."

"12 In proceedings for contribution under s 11 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity."

5. It is notorious that the decision as to the assessment of contribution is in the nature of a discretion so wide that, apart from requiring the Court to weigh all relevant considerations, the Act gives virtually no guidance as to the exercise of the discretion.

6. Most authoritatively for the purposes of this Court, the majority judgment in Nominal Defendant v Australian Capital Territory [1999] FCA 446 lays down the following principles:

"16 The discretion under s 12 of the Act is a broad one and one which requires that considerable latitude be given to the Court in arriving at a judgment as to what is just and equitable: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16; James Hardie & Co Pty Limited v Seltsam Pty Ltd [1998] HCA 78 at 79 per Kirby J with whom McHugh J agreed. Within the exercise of that broad discretionary judgment the Court is required to compare the culpability of each of the negligent parties, the relative importance of the acts of the negligent parties causing damage and to subject to comparative examination the whole conduct of each party in relation to the circumstances of the events giving rise to the negligently caused loss: Covacevich v Thomson [1988] Aust Torts Reports 80-153 (Queensland Full Court) at 67,373. The discretion is not limited to such factors alone. It involves consideration of all relevant matters which go to the issue of what is the just and equitable sharing of responsibility for the damage suffered by the plaintiff: Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 at 212-213."

7. Apportionment between a plaintiff and a defendant is made on similar but not identical principles. In Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (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 of 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] HCA 26; (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] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [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; ..."

8. It may be appropriate to observe that the principles relating to apportionment between tortfeasors and apportionment for contributory negligence tend to overlap. However, it may be important for the purposes of the present case to bear in mind that the statement in some of the contributory negligence cases, that regard must be had to the relative departures from the proper standard of care, does not apply to tortfeasors who are liable to the plaintiff not in negligence but in respect of some other tortious cause of action. Thompson v Australian Capital Television Pty Limited (1997) 129 ACTR 14 is an example of contribution apportioned between defendants liable in defamation where there was no question of departure from proper standards but where the conduct of one was adjudged more culpable than the other.

9. These considerations led John Fleming to comment in The Law of Torts, 8th ed, at 264:

"Trial judges do not make a practice of elaborate explanations for their apportionment, being usually content merely with the conclusion that it would be 'just and equitable' to divide responsibility in the stated proportion. This conforms with the general admonition that apportionment should be `dealt with somewhat broadly and upon common sense principles'. What is thereby lost in precedential value is gained in discouraging appeals."

10. Contrary to Fleming's comment, however, the increasingly strict requirement that trial judges give detailed reasons for their decision appears to be leading to the development of principles about what may and what may not be regarded as "just and equitable" for the purpose of apportionment, as the above extracts from the judgments suggest.

11. In Nominal Defendant v ACT (where the defendants, essentially a motorist and a road authority, were found jointly liable for the plaintiff's injury) a Full Court of the Federal Court of Australia decided that the Full Court of this Court was entitled to reduce the contribution of one defendant from 66 percent, as assessed by the Master at first instance, to 25 percent, although no error could be detected in the Master's findings or reasoning. The Full Court of this Court was considered to be entitled to attach significant weight to the circumstance that, in its opinion, the conduct of the motorist was the "more operative and culpable cause of the damage".

12. Having regard to these approaches and to the circumstances of the present case, I conclude that Civil & Civic should bear a greater share of the responsibility for the damages awarded to the plaintiff. Although this is not a case in which there has been a finding of negligence against either defendant - indeed there was a positive finding of no negligence - I think that it is possible to assess the relative contributions in terms of "more operative and culpable cause". Civil & Civic was not the plaintiff's employer, but as head contractor it had general responsibility for the safety of persons who might be expected to be on the site. More particularly, under the Regulations it had the duty to do everything necessary or advisable to minimise the risk of injury to persons engaged in the building work, including those who, like the plaintiff, were employed by sub-contractors carrying out various parts of the overall building work. IC, being engaged in the building work, owed similar duties under the Regulations, but more particularly owed a common law duty to the plaintiff that arose out of the relationship of employer and employee.

13. My relevant findings in the case brought by the plaintiff were that, although IC was under the common law duty to provide a reasonably safe place of work and, on the assumption that the common law duty extended to providing reasonably safe access to the place of work, there was little or nothing IC could do about it, since the ramp was under the control of Civil & Civic, and not under the control of IC except, perhaps, to the extent that IC could have made representations to Civil & Civic about the loose surface that the plaintiff claimed he had observed. But because I held further that I was not satisfied that the plaintiff had complained to his supervisors about the loose surface, the absence of other satisfactory evidence that IC knew or should have known about the loose surface meant that IC was not liable in negligence. Moreover, the surface was the usual mixture suitable for a road surface in such a situation and the nature of the operation was such that part of the pre-compacted aggregate might be dislodged from time to time by the wheels of trucks without the need for immediate further compacting. Thus, there was no "fault" on the part of either defendant in the sense of an unreasonable failure to provide safe access. If it is necessary for one tortfeasor to show that the other is at fault, apportionment simply does not arise. However, s 12 does not speak of "fault" but of "responsibility for the damage". Having regard to their respective failures to comply with the strict duty under r 73(c), I am of the view that the "more operative and culpable cause" of the plaintiff's damage lay with Civil & Civic for the reasons given at the commencement of this paragraph.

14. Although the concept of a "more operative cause" has been criticised and appears to have been rejected in Pennington v Norris, it is part of the test laid down and applied by the Full Court of the Federal Court in Nominal Defendant v ACT. It is consistent with what was put by Murphy J (dissenting) in Watt v Bretag (1982) 56 ALJR 760 at 763 (a contributory negligence case):

"... Where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."

15. Mr Nock SC, for Civil & Civic, submitted that where, in contrast to apportionment between negligent tortfeasors or apportionment for contributory negligence, the tortfeasors are in breach of a statutory regulation, equitable principles apply and the tortfeasors contribute equally to the plaintiff's damage. Although that was my provisional view, it is not supported by the authorities referred to above. Indeed, the authority relied upon, namely Oxley County Council v MacDonald Other [1999] NSWCA 126 is concerned with the question whether apportionment legislation like s 12 applies to liability in contract, which, with respect, it clearly does not. However, it may be that there are circumstances in which a contractual obligation may bear upon the question whether and what apportionment is "just and equitable" under s 12 as between tortfeasors. Nothing, however, was put in the present case about how the contractual arrangements between IC and Civil & Civic affected their respective responsibilities for the plaintiff's damages.

16. A case perhaps closer to the point might be Soblusky v Egan [1960] HCA 9; (1960) 103 CLR 215, where the High Court at 235 took the view that it would not interfere with the trial judge's apportionment "based on the simple view that two persons had become liable vicariously without individual fault and the presumption of equality of burden could alone be applied". However, the decision appears to rely on the anomalous liability of the registered owner of a motor vehicle under motor vehicle insurance legislation and is of little assistance.

17. Fleming, at 264 n 78, says that "defendants liable for breach of statutory duty have not gone scot free" for the purpose of contributing to the damages for which another defendant is also liable, but the authorities cited do not entirely support his proposition. In Sherras v Van der Maat (1989) 1 Qd R 114 all three defendants were found liable for breach of construction safety legislation. The third defendant was found liable in negligence also. Counsel for the third defendant conceded that it should bear the whole of the damages, a concession which Thomas J thought was correctly made. Luxmoore LJ took a similar view in Wilkinson v Rea Ltd (1941) 1 KB 688, the other members of the Court of Appeal not considering the question. In Dooley v Commell Laird & Co Ltd (1951) 1 Ll Rep 271, Donovan J apportioned three quarters of the damages against the second defendant who was the plaintiff's employer and liable in negligence and breach of statutory duty and one quarter against the first defendant who was liable in breach of statutory duty only.

18. Although the point appears to be free from binding authority, it is in accordance with the proper construction of s 11(1) and s12 that tortfeasors liable for breach of statutory duty may recover contribution from each other. That was the approach taken in Andriolo v G & G Constructions Pty Limited (unreported, Supreme Court of the ACT, Miles CJ, 14 July 1988) where, on the facts, each defendant (the head contractor and the scaffolding sub-contractor) was held entitled to contribution from the other of one half of the plaintiff's damages.

19. In summary, in my view, the substantial degree of control exercised by Civil & Civic over the whole of the operations and the relative lack of control by IC, even though the latter was the plaintiff's employer, make it just and equitable that liability for the plaintiff's damages and costs be apportioned as to two-thirds to Civil & Civic and one-third to IC. I so order. Unless the parties with to be heard, I propose to order further that Civil & Civic pay two-thirds of IC's costs of the contribution proceedings.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the second defendant: Ken Cush & Associates