Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s7, s7(1)(b)

Boyle v State Rail Authority (NSW) [1997] NSWDDT 3; (1997) 14 NSW CCR 374

Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 141 ALR 1

XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited [1985] HCA 12; (1984-1985) 155 CLR 448

1 This an appeal by the plaintiff against the decision of a Registrar made on 27 October 1999 whereby he ordered that:

1. The plaintiff's statement of claim be struck out and the action be dismissed.

2. The plaintiff to pay the defendant's costs including costs reserved on an indemnity basis.

2 The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court. In conducting such an appeal, each party may rely on evidence given in affidavit or orally before the Registrar. Furthermore, a re-hearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it. It would be wrong to adopt a more restrictive approach: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28-29.

3 The basis upon which the order was sought was that the plaintiff's claim against the defendant is identical to a claim which the plaintiff maintained against a previous defendant in another action being action number 293 of 1997 and that action has been settled and the plaintiff paid. As a consequence, although the plaintiff can maintain an action against the defendant in these proceedings he cannot obtain a greater judgment than he has already obtained in the previous action and is unable to execute on that judgment having been paid in full under the earlier judgment.

4 This action concerns an incident which occurred according to the statement of claim on 27 March 1997 whilst the plaintiff was undertaking a work trial as part of a rehabilitation programme. In doing so he attended the premises of the present defendant and he alleges that he injured himself whilst using a forklift in the course of his rehabilitation programme. That injury was an injury to the left shoulder and was a rotator cuff tear of that shoulder. At the relevant time the plaintiff was on workers' compensation from his previous employer Sadleirs Transport Company and the activities on that day were concerned with an attempt to rehabilitate him into an alternative form of employment.

5 On 31 July 1999 in action 2930 of 1997 there was simultaneously filed a Writ, a Memorandum of Appearance and a Consent Judgment. All of those documents were dated 28 July 1997. The Registrar stated that it appeared tolerably clear to him that they had all been filed by Messrs Phillips Fox the solicitors for Sadleirs Transport Company. I make no findings in that respect and it is unnecessary for me to do so in the circumstances of this case.

6 The indorsement on that Writ read as follows:

"The plaintiff claims damages against the defendant arising from negligence, breach of contract of employment and/or breach of statutory duty of the defendant which caused personal injury to the plaintiff during the course of his employment with the defendant on or about 20 March 1995 (the initial injury) and for the recurrent/exacerbation of the initial injury on 18 July 1995 and 28 March 1997."

7 It is not in dispute that the injury dated 28 March 1997 refers to the same occasion which is described as occurring on 27 March 1997 in these proceedings.

8 The Registrar stated that that being the case it appeared to him that there was a powerful prima facie inference that whatever injuries that were inflicted upon the plaintiff by the events of 27 March 1997 were the subject of his earlier proceedings and settlement.

9 Counsel for the plaintiff asserted before me that there was no injury to the shoulder prior to the 27 March 1997. In my view that is not the case. In a report of Mr Richard Beaver, Orthopaedic Surgeon, of the 18 March 1997 he states as follows at p1:

"Please note that six years ago this man had an injury to his left shoulder whilst unloading cartons of soft drink at another job. This led to left shoulder pain treated with the anti-inflammatories with resolution and recurrence of pain of mild degree in the left shoulder intermittently. He did not regard this as a problem."

And at p2:

"Examining his shoulder revealed tenderness over the left greater tuberosity of the humerus with positive impingement signs in the left shoulder. There was no restriction of his passive range of motion but his act of abduction was limited by pain. There was no other abnormalities on physical examination."

And further at p3:

"At this stage I do not see why this man should not be returned to normal duties with perhaps only mild restrictions on lifting above shoulder height."

And at the same page:

"My view is that this man's alleged disabilities are related to pre-existing degenerative changes to the shoulder and neck."

10 In a report dated 12 May 1997 from Darrin Brandis from Prime Rehabilitation the following appears:

"Mr Bayley stated that he had aggravated his shoulder on Friday 28 March 1997 at Wesfarmers."

11 In a letter from Bradford and Co the plaintiff's solicitors addressed to the solicitors for Sadleirs Transport Company dated 21 July 1997 the following paragraphs appear:

"In relation to the shoulder injury we see this as having been caused by the same continuous conduct of the defendant, having started of with the defendant's negligence and in the duty transferring to the defendant's rehabilitation provider and an injury occurring during such a rehabilitation programme which, apart for the accident would not have occurred.

The prognosis in this regard is that he will require surgery. He is currently discussing this with his doctors and contemplating when the surgery will take place.

Any settlement therefore will have to take into account surgery and ongoing post operative treatment."

And further:

"He has made every effort in relation to his rehabilitation since his accident but he is now also left with a shoulder injury which may cause him some future problems."

"Our client will be entitled to general damages for pain, suffering and loss of amenities of life and to this must be added in the component for the shoulder injury, anticipated surgery and recovery phase. We believe that an amount of $40,000 is appropriate."

"He will require operative treatment and hospitalisation together with a rehabilitation phase from a physical point of view in respect of his shoulder. To this end we believe that an allowance of $10,000 would be appropriate."

14 It is the submission of counsel for the defendant that:

1. The Writ and consent judgment in the Sadleir's action established that the plaintiff compromised his cause of action in respect of the incident on 27 March 1997 for a sum of money. It is not in dispute that the plaintiff received that money.

2. Even if it were permissible or necessary to look behind that document progress medical certificates and medical reports (sent to GIO, Sadleirs insurer) are clearly directed to the left shoulder injury (as well as the neck injury) and a letter from the plaintiff's solicitors to Sadleirs solicitors (Phillips Fox) dated 21 July 1997 (annexure D to the affidavit of Ms Vanden Driesen dated 26 October 1999), and Phillips Fox's letter to GIO dated 28 July 1997 (annexure E to Ms Vanden Driesen affidavits sworn 10 December 1998) make it clear that the shoulder injury was included in the settlement.

15 That is a submission that I accept.

16 The plaintiff has filed affidavits indicating that the left shoulder injury is not part of any settlement. In my view those affidavits are nothing more than subjective beliefs and do not advance the plaintiff's position.

17 Clearly on the documentation the plaintiff is holding the defendant responsible for the left shoulder injury, is suing in respect of that injury and seeks damages in respect to that injury.

18 Where there are multiple tortfeasors and the plaintiff settles with only one of them, the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 provides that judgment is not a bar to subsequent action against the other tortfeasors: s7; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited [1985] HCA 12; (1984-1985) 155 CLR 448 at 459-460; Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 141 ALR 1.

19 However the plaintiff cannot recover in aggregate more than the amount of the initial settlement: s7(1) (b); Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159; Boyle v State Rail Authority (NSW) (1997) 14 NSW CCR 374.

20 The plaintiff in the present action did settle his claim and has in fact received the full amount of the settlement and therefore in my view cannot recover any more from the present defendant. Accordingly, in my view the action should be struck out.

21 It follows in my view that the appeal should be dismissed.