The cross-claim judgment: further amended third cross-claim
39 The primary judge described the "thrust" of the further amended third cross-claim as "the assertion by [the owner] that the [employer] was liable pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)" because it "was a tort feasor liable in respect of the same damage suffered to the plaintiff, as had the [owner] been found liable." His Honour rejected that submission in reliance on James Hardie (at [31]) where Gaudron and Gummow JJ said of a claim for contribution pursuant to s 5(1)(c):
"The claimant tortfeasor who satisfies the condition precedent [the liability ascertained as between the plaintiff and the claimant tortfeasor] may recover contribution from those other tortfeasors who bear responsibility in respect of the same damage in a fashion which answers a description in the balance of par (c). The defendant tortfeasor must be one (i) 'who is ... liable in respect of the same damage' or (ii) 'would if sued have been, liable in respect of the same damage'. Only those who satisfy (i) or (ii) are amenable to a claim for contribution under the statute. Further, those who have been sued to judgment, whatever its outcome, do not fall within (ii). That is the effect of settled authority in this Court." (emphasis added)
40 The primary judge held that the fact that the employer had been sued and found not liable was fatal to the owner's claim for contribution from the employer.
The cross-claim judgment: further amended fourth cross-claim
41 The primary judge dealt succinctly with the further amended fourth cross-claim against the driver, which he described as a claim made by the owner on the basis of the driver being the employer's agent. His Honour said that claim must also fail because:
"The fact of the matter is that the court found liability in [the driver] and that it [sic, should be "he"] was the agent of [the owner]."
Issues on appeal
42 A number of grounds of appeal were pleaded, however the only extant issue at the commencement of the hearing was whether the primary judge erred in rejecting the owner's claims for contribution/indemnity under s 5(1)(c) from the employer and the driver.
43 That issue was further refined during the hearing of the appeal. Mr K Andrews, who appeared for the owner on appeal and at trial, accepted that this Court was bound by James Hardie with the consequence that the primary judge correctly dismissed the s 5(1)(c) claim against the employer, he having found it not liable to the plaintiff.
44 Mr Andrews also accepted that, even if the Court was to find that the owner could claim s 5(1)(c) contribution from the employer on the basis that the latter was vicariously liable for the driver's negligence (for which the latter had been found liable), the employer's negligence on that basis had effectively been considered by the primary judge in the context of determining the employer's notional liability to contribute under s 151Z(2)(c) of the WC Act - an exercise which, in turn, had led to a reduction in the damages the owner was required to pay the plaintiff.
45 Mr Andrews conceded, in the light of that proposition, that it was improbable, as the employer argued, that the owner could get any greater contribution than 50 per cent from the employer pursuant to s 5(1)(c), bearing in mind the requirement that the Court should determine the amount of the contribution recoverable under s 5(1)(c) and s 5(2) of the LRMP Act on the basis of what was just and equitable.
46 I would add however, that in my opinion the reason the owner's claim for contribution against the employer would have failed, even if it had been found liable to the plaintiff, or had not been found not liable was because, as explained in Forstaff (at 74), as the plaintiff could not have recovered any damages from the employer if calculated under the WC Act, the owner could not recover any sum by way of contribution from the employer.
47 The remaining issue, therefore, was whether the owner should have succeeded in its s 5(1)(c) claim against the driver on the basis that he had been found liable to the plaintiff. In this respect Mr Andrews submitted that, having been left after the s 151Z(2) exercise involving the employer with a net MAC Act liability to the plaintiff, the owner was entitled to ask the driver whose acts or omissions gave rise to that burden to indemnify it for that liability.
48 The difficulty with this argument, as the respondents submitted, is that it raised an issue which was not raised at the primary or cross-claim hearings. In the first of those hearings the plaintiff's case was that the driver was the owner's agent and hence by virtue of s 112 of the MAC Act, the owner was liable for his negligence in driving the front-end loader. The driver was only found liable because of his conduct in driving the owner's vehicle, not for any conduct as the employer's employee.
49 When the primary judge came to consider the s 151Z(2)(c) position, he considered the employer's liability on the basis that, if sued by the plaintiff for employer's negligence (rather than under the MAC Act), the employer's system of work would have been found to have been negligent. It was on that basis he assessed the employer's liability to contribute to the owner at 50 per cent. Although not expressly stated by his Honour, it can be assumed that that assessment included his Honour's opinion as to the driver's role in implementing the employer's system.
50 At that stage of the proceedings, as is apparent from the chronology set out above, the owner had not formulated the cross-claims against the employer and the driver in the terms in which they ultimately came to be determined. Further, when those cross-claims were heard, it is apparent that the owner sought to pursue the s 5(1)(c) claim against the driver on the basis that he was executing the employer's system of work. His Honour rejected that claim because it did not reflect the basis on which he had found the driver liable, which was as the owner's, rather than the employer's agent. In other words, at no stage did the owner advance a case that the driver was liable simpliciter, independently of whether he was a statutory agent of the owner by virtue of s 112 of the MAC Act or as the employer's employee.
51 In my opinion the owner should not be permitted to formulate a claim against the driver in those terms for the first time on appeal. If a claim in those terms had been advanced at the primary hearing stage, so that his Honour had had to consider not only the extent to which the employer might be liable to contribute to the owner as a joint tortfeasor under s 151Z(2)(c), but also the extent to which the driver may be required to contribute purely on the basis of s 5(1)(c) of the LRMP Act, the extent of the employer's contribution may well have been different from the 50 per cent for which he adjudged it liable. That, in turn, could have affected the damages the plaintiff was entitled to recover from the owner.
52 The owner should be bound by the way he conducted the cross-claim proceedings and the primary hearing: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at 7) per Gibbs CJ, Wilson, Brennan and Dawson JJ. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481. Whether or not an appellate court exercising a rehearing function as this court does will entertain a new point on appeal depends upon whether the court finds it expedient and in the interests of justice to do so: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497) per Mason CJ, Wilson, Brennan and Dawson JJ; see also Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 (at 645-6) per Mason P (Gleeson CJ and Priestley JA agreeing).
53 It would clearly be inexpedient, and inimical to the interests of justice, to allow the owner to raise a point which would require not only determining the further amended fourth cross-claim on a basis not hitherto advanced, but also determining it in circumstances where the outcome would necessarily impinge on the issues determined in the principal judgment from which no appeal has been brought. In my opinion the appeal should be dismissed with costs.