Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited v Essential Energy

Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited v Essential Energy - [2015] NSWSC 719 - NSWSC 2015 case summary — Zoe

[3]

The evidence of Mrs Stephenson

Mrs Stephenson was born on 17 June 1959 and is currently 56 years of age. She married her husband on 3 September 1983. There were two children of the marriage.
In her affidavit Mrs Stephenson recounted the circumstances in which she learned of her husband's death on 2 February 2006. She was first alerted to the accident by her son at about 10:30am on that day. She made an inquiry of the local police who were unable to provide any information. When she telephoned the Council she was informed that somebody would speak with her. She described herself as having a sense of disbelief and feeling numb throughout her body.
Later in the day police contacted her by telephone and advised her that three people had died in a helicopter accident and that there were no survivors. She said that she was visited by the Mayor of Parkes who said that he wished to speak with her about her husband's leave entitlements. Mrs Stephenson stated that the Mayor offered little support or expression of sympathy. She expanded upon these matters in her oral evidence.
Mrs Stephenson described herself as being "on automatic" between the date of the accident and the date of her husband's funeral. She described feeling an overwhelming sense of loss, and feeling anxious about the future. She said that she was unable to travel along the road which ran through the area where the accident occurred. She said that although her General Practitioner Dr Whitmill had attempted to medicate her, she was concerned that she may use prescribed drugs to kill herself.
Mrs Stephenson explained that since the accident she found it difficult to be with people. She said she did not wish to speak with anyone, and did not wish people to enquire about her well-being, about anything to do with the accident, or indeed about anything at all. She said that she experienced difficulties sleeping and had been taking sleeping tablets prescribed by her General Practitioner since the time of her husband's death.
Mrs Stephenson gave evidence that she had been referred to a psychologist, Ms Andrea Grom. When asked whether or not that treatment had assisted her, Mrs Stephenson said that she continued to see Ms Grom and that such treatment "takes away some of the fear of not knowing where I am".
Mrs Stephenson confirmed that her weight had increased since the accident. When asked why this had occurred she answered: "I don't care. I have - I don't care about - I don't see a future. I don't see the implications of if you weigh 130 kilos or you weigh 80 kilos. I just don't care. I don't truly care."
Mrs Stephenson also said that she moved house after the accident, principally because she could not undertake the maintenance that was required at her previous premises. She explained that her husband had attended to all home maintenance prior to his death.
Mrs Stephenson said that she was not able to engage in any social activity and that her life consisted of little else other than work. She explained that she had retained "two very good friends" but had otherwise "managed to get rid of other people". This, she explained, was her choice, because she did not want to talk to anyone. Her reluctance to talk to people had extended to deliberately doing her shopping at a time when other people were unlikely to be at the shopping centre.
Mrs Stephenson explained that she and her late husband had intended to travel overseas in the future. Twelve months after her husband's death, and partly to ensure that she was not in Parkes at the time of the anniversary of the accident (and on her husband's birthday), Mrs Stephenson travelled to New Zealand with a friend. She described that trip as "horrible". She also explained that in consultation with her psychologist, she had set a goal that if she was able to reach five years after the accident without "doing anything" to herself she would reward herself with a trip overseas. She achieved that goal and travelled to Italy. She described the trip as "something that (she) shouldn't have done"
Mrs Stephenson was cross-examined briefly. There were questions put to her concerning aspects of her employment history which I have set out more fully below. None of the evidence I have summarised above was the subject of any substantive challenge.

[4]

The medical evidence

Mrs Stephenson was examined by Dr Clarke, Consultant Forensic Psychiatrist, for medico-legal purposes on 6 November 2008. Dr Clarke diagnosed a pathological grief reaction and thought her prognosis was poor.
Dr Whitmill, Mrs Stephenson's General Practitioner, provided a report of 22 October 2008. He confirmed that Mrs Stephenson had been his patient for a period of 20 years, and that he had referred her to Andrea Grom, Psychologist and had prepared a mental health plan for her. Dr Whitmill expressed the view that Mrs Stephenson had suffered an "extreme loss" following her husband's death.
Ms Grom provided a report of 4 December 2008 in which she confirmed that she had first seen Mrs Stephenson in August 2007. Ms Grom expressed the view that Mrs Stephenson was suffering from a chronic grief reaction and that she satisfied the criteria for a diagnosis of depression.
Mrs Stephenson was examined by Dr Phillips at the request of her Solicitors, and by Dr Lewin at the request of the Solicitors for the Council. Both Dr Phillips and Dr Lewin are Forensic Psychiatrists. Each provided a series of reports, however their joint report dated 4 June 2013 provides a succinct summary of the following matters about which they were agreed: 1. Mrs Stephenson suffered a depressive reaction following her husband's death which went beyond the normal experience of grief or bereavement; 2. there were demonstrated signs of improvement, although she continued to exhibit residual symptoms; 3. although pre-morbid vulnerability factors were identified, including the death of her father in 2001, her diagnosed illness was triggered by the death of her husband; 4. the harsh manner in which information relating to the circumstances of her husband's death was communicated to her contributed to her distress; 5. Mrs Stephenson was progressing towards recovery; 6. anti-depressant medication was no longer a vital part of her treatment; 7. Mrs Stephenson should continue under the care of a psychologist for a further period of two to three years with monthly outpatient treatment being considered appropriate at a cost of $220.00 per session; 8. the avoidance symptoms which manifested themselves in association with Mrs Stephenson's employment (discussed further below) were part of her diagnosed psychiatric condition; 9. if Mrs Stephenson's employment required her to have regular and frequent interaction with the public she may not cope as well as she did prior to her husband's death, but apart from that there was probably no other impairment in her capacity for employment; 10. there was no indication that her illness would worsen over time, although another emotional loss or bereavement would render her more vulnerable to a recurrence of her depressive condition; 11. Mrs Stephenson had reported fleeting thoughts about suicide but was not at risk in that regard; 12. there was some evidence that she had experienced limited interest in her own appearance and was eating in a hazardous manner, resulting in significant weight gain.

[5]

Mrs Stephenson's employment history

Prior to the accident Mrs Stephenson was employed as a receptionist at a motel in Parkes. She earned $522.56 per week but had been offered (and accepted) an increase to $650.00 net per week. She said that due to the symptoms experienced after her husband's death, she was not able to work in a position which involved close interaction with members of the public. She therefore ceased working as a receptionist.
Following the accident, Mrs Stephenson obtained employment as a clerk in a Real Estate Agent's office. Although she was not initially required to have any contact with the public, that situation changed when she was moved to the front office of the business. She said that she was unable to tolerate that contact and was forced to leave that employment. Documentation provided by that employer indicates that Mrs Stephenson worked between about 12 and 33 hours per week. Her inability to have contact with the public represents a manifestation of the avoidance symptoms diagnosed by Dr Phillips and Dr Lewin.
In August/September 2007 Mrs Stephenson was employed by Telescope Tyres in Parkes. Once again that position necessitated contact with members of the public and as a consequence, Mrs Stephenson was forced to leave that employment. Documents provided by that business establish that Mrs Stephenson was employed in a casual clerical position. She worked between 5 and 18 hours per week.
On 7 November 2007 Mrs Stephenson obtained employment at the Commonwealth Bank in Forbes, a township near Parkes. Part of the attraction of that employment was that it was removed the necessity for Mrs Stephenson to have contact with members of the Parkes community. Mrs Stephenson remained in that employment until August 2009. She left because she was told that she would be transferred to the Parkes branch of the bank which would have involved contact with residents of that town.
In September 2009 Mrs Stephenson commenced part time employment as a clerk at Parkes Leagues Club, working three days each week. She has since progressed to full time employment. Her position involves no interaction with the public. Mrs Stephenson also confirmed that she had been invited to return to her previous employment at the Coachman Hotel doing the same work that she had done before. She explained that she could not return to that employment because of the public exposure and the necessity to interact with members of her local community.
I have noted (at [21] above) that Mrs Stephenson earned a sum of $650.00 at the date of her husband's accident. Mrs Stephenson's net yearly earnings as at the time of the accident were therefore $33,800.00. On the basis of her taxation returns which are in evidence her net earnings for the years since the accident were as follows: 1. for the year ending 30 June 2007: $29,221.00; 2. for the year ending 30 June 2008: $26,672.00; 3. for the year ending 30 June 2009: $21,111.00; 4. for the year ending 30 June 2010: $30,548.00; 5. for the year ending 30 June 2011: $36,176.00; 6. for the year ending 30 June 2012: $38,134.00.
Since 2010 Mrs Stephenson's income has exceeded the amount that she was earning prior to the accident. Accordingly, her claim for past economic loss is limited to the period up to 30 June 2010.

[14]

The evidence of Mr Stephenson

Mr Stephenson is now 30 years of age. He spent the entirety of his childhood living with his parents and sister in Parkes. He described his family as being a very close knit one. He spoke, in particular, of his late father's involvement in, and support of, his various sporting activities as a child. He said that each year the family would holiday in Queensland. He also went on yearly camping trips with his father.
Mr Stephenson said that he was told of the accident by telephone. He attempted to visit the accident site but in the course of making his way there he was telephoned by his mother and he returned home. He explained that the real impact of what had occurred came when a person from the Coroner's office telephoned his home seeking his father's dental charts. He said that he felt angered by the lack of information regarding the accident. He described feeling a sense of devastation, wondering whether he was in a nightmare from which he might eventually emerge. As time went on, he experienced a growing sadness at the realisation that his father had been killed in the accident.
Mr Stephenson took one month of leave from his employment following his father's death. He agreed that this has been his only period of absence from work. He said that he thought constantly about his father and felt generally depressed. As a result, he saw his General Practitioner Dr Whitmill on several occasions although he did not engage in any formal treatment.
Mr Stephenson said that following his father's death he began "drinking hazardously". His smoking also increased. He rejected his mother's suggestions of counselling. He continues to experience difficulties with sleep. He has nightmares in which he has visions of his father's accident. He described himself as being constantly depressed and easily irritated. He has "bad days" where he does not wish to speak with others.
When giving oral evidence, Mr Stephenson stressed that his relationship with his late father was "very good" and was one which saw them socialise and play sport together. He described it as a "strong loving relationship". He described undergoing a "massive change" in his life because he had lost his best friend when his father died. He explained that when he returned to work at the Forbes Bowling Club after his father's death he stayed for a period of time but didn't like it because "everything sort of changed". One of the principal difficulties was that he used to play lawn bowls with his father at that club. As a consequence, being there created bad memories for him.
Mr Stephenson was cross-examined about his consumption of alcohol. He said that his frequency of alcohol consumption had increased from drinking one night per week to drinking up to seven nights per week, and that he would drink between half a carton and one carton of beer on each of those occasions. When asked why he did that he said that it made him feel better. He explained that there had been a consequent increase in his weight. He confirmed that he continued to have problems with sleeplessness.

[22]

The evidence of Ms Stephenson

Ms Stephenson is currently aged 27. She completed Year 11 in 2004 following which she left school. In 2005 she undertook a course at the International Beauty Institute in Orange. She completed that course approximately one month before her father's death. Ms Stephenson explained that she was "obsessed" with beauty products as a child, and that her father always volunteered himself to be the "model". She said that at the time of her father's death, she had wanted to pursue a career in the beauty industry.
Ms Stephenson said that she was at home on the day of the accident when her mother arrived unexpectedly at about 11am. She was aware that her father had been in a helicopter on that day. Her mother told her that there had been an accident. Ms Stephenson scanned media reports in the hope of finding news about what had occurred. When she was unable to do so she went outside and locked herself for a period of time in her partner's car.
Ms Stephenson explained that in the days following the accident she felt a need to give the appearance that she was coping with what had occurred. She said that she worried constantly about the welfare of her mother and brother, but that even at that early stage she formed a plan to leave Parkes as soon as possible. As I have outlined further below, she in fact left Parkes shortly after her father's funeral.
Ms Stephenson married on 2 January 2010. She separated from her husband in May 2011. She attributed her separation to the fact that after her father's death she could not share her feelings with her husband. She said that she felt "helpless, hopeless and useless".
Ms Stephenson gave evidence of a number of ongoing symptoms from which she had suffered since her father's death. She referred to being troubled by a fear that others close to her would die. She said that she had suicidal thoughts and that on occasions she thought that it would be easier if she were dead. She said that she felt depressed most of the time and was troubled by feelings of helplessness, hopelessness, uselessness, self-pity and guilt. She said that she slept poorly. She explained that on the occasions on which she did manage to get to sleep she would invariably wake quickly, leaving her exhausted in the mornings. She said that she had occasional nightmares.
Ms Stephenson explained that her standards of personal grooming had deteriorated since her father's accident. She said that she no longer felt the need to look after herself. She said she had a tendency to eat in a "random and chaotic manner", as a consequence of which her weight had increased by approximately 40 kilograms.
Despite her qualifications as a beauty therapist, Ms Stephenson explained that she had become disinterested in that work. She expressed a reluctance to socialise. She also explained that she has suffered severe headaches since her father's death and has been put to an average cost of $30.00 per week in analgesic medication.
Ms Stephenson agreed in cross-examination that she had sought medical advice about headaches in 2006, and that she had told at least one doctor in September of that year that her headaches had been ongoing for at least 12 months before that (which would obviously pre-date her father's death). She said that on those occasions it had been suggested to her that she was suffering from migraine. However, Ms Stephenson stressed that the headaches from which she had commenced to suffer after her father's death were different to those from which she had previously suffered. She described her current headaches as a "daily pain". She agreed that she had a problem with dependence upon codeine medication and confirmed that she wished to undertake treatment for that dependence.

[30]

The legislation

Section 151Z of the WCA is in the following terms: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (2) If, 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, the following provisions 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, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise-the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution-subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.

[31]

Submissions of South West

There is evidence of the compensation payments made by the Council in favour of the two deceased workers. However, a number of submissions were made by senior counsel for South West in support of a conclusion that the Council was not entitled to succeed in either proceedings.
It was firstly submitted that in light of my finding of liability against the Council, and on a proper construction of s. 151Z of the WCA, the Council was not entitled to succeed in either proceedings. It was submitted that an employer whose negligence contributed to the occurrence from which the right to compensation arose is prevented from having the benefit of the statutory indemnity for which s. 151Z provides.
Specifically in respect of the proceedings brought by the Council arising out of the death of Mr Stephenson, senior counsel for South West submitted that any right of the Council to recover, from South West, payments of compensation made in favour of Mr Stephenson stemmed from s. 5(1) of the Law Reform Miscellaneous Provisions Act 1946 ("the LRMPA"). It was submitted that the Council sought to enforce that right by the fourth cross claim issued in the proceedings commenced by Mrs Stephenson and that in these circumstances, the Council's proceedings against South West pursuant to s. 151Z of the WCA should be dismissed.
Senior counsel for South West advanced two further submissions specifically in respect of the proceedings brought by the Council in respect of the death of Mr Buerckner.
Firstly, it was pointed out that Mr Buerckner's wife had brought proceedings against EE which had been settled. It was submitted that: 1. Mrs Buerckner (like Mrs Stephenson) would have been entitled to recover damages against the Council but had not brought such proceedings; 2. EE would have been liable to Mrs Buerckner in proceedings under the CTR Act; 3. an amount paid under a settlement agreement engages the operation of s. 151Z(1)(b), and thus a liability on the part of Mrs Buerckner to repay the compensation payments to the Council out of any sum paid to her by EE; 4. an employer in the position of the Council had no right to be indemnified under s. 151Z(1)(d) by any other tortfeasor if the employer was entitled to payment under s. 151Z(1)(b).
It was submitted that in these circumstances the Council was required, in order to prove its case against South West, to establish that no right of repayment had accrued under s. 151Z(1)(b). It was submitted that in circumstances where there had been a settlement of the proceedings brought by Mrs Buerckner, and where that settlement had been approved by the Court, the Council had failed to prove an essential fact necessary to assert the right to the indemnity under s. 151Z(1)(d). It was submitted that accordingly, the proceedings brought by the Council against South West arising out of the death of Mr Buerckner must fail on this specific basis.
Secondly, it was submitted that the Council had failed to prove those facts which would allow the Court to be satisfied of the matters set out in s. 151Z(2)(e)(i) and (ii). It was submitted that this was an additional basis upon which the proceedings brought by the Council in respect of the death of Mr Buerckner should fail. No submission was made that the proceedings brought by the Council arising out of the death of Mr Stephenson should fail on a similar basis.
Further, and in respect of both proceedings brought by the Council, it was submitted on behalf of South West that on a proper construction of the provisions of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the CAA") a limitation period of two years applied to proceedings commenced by an employer under s. 151Z of the WCA against a carrier who is liable under Part IV of the CAA. It was submitted that both of the proceedings brought by the Council were commenced after that time and that this was a further basis upon which both proceedings should dismissed.
In advancing that submission, senior counsel for South West candidly acknowledged that such submission would, at first instance, be rejected in light of the decision of the Court of Appeal in United Airlines Inc. v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 289 ALR 682.
Finally, it was submitted on behalf of South West that in the event that it was determined that the Council should succeed in either or both of the proceedings, the statutory cap in terms of any amount which was able to be recovered by the Council included interest which formed part of the indemnity. In these circumstances, it was submitted that the Council had no separate entitlement to an order for interest.

[33]

Consideration and conclusion

In support of the submissions advanced as to the construction of s. 151Z of the WCA (summarised in [93] above) senior counsel for South West relied upon the decision of the High Court in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited [1975] HCA 28; (1975) 132 CLR 336. In that case, a worker had sustained a compensable injury by reason of negligent acts of both the respondent employer and another tortfeasor (the appellant). The respondent had paid compensation pursuant to the Workers Compensation Act 1926 ("the 1926 Act") and had then sued the appellant seeking an indemnity under s. 64 of the 1926 Act in respect of that compensation.
Section 64 of the 1926 Act was in the following terms: "(1) Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof - (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to retain both damages and compensation. If the worker recovers firstly compensation and secondly such damages he shall be liable to repay to his employer out of such damages the amount of compensation which the employer has paid in respect of the worker's injury under this Act. and the worker shall not be entitled to any further compensation. If the worker firstly recovers such damages he shall not be entitled to recover compensation under this Act; (b) if the worker has recovered compensation under this Act the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid: (c) if the worker subsequently obtains judgment for damages against the person who has paid under such indemnity. Such payment under the indemnity shall be. to the extent of the amount of such payment a satisfaction of the judgment for damages; (d) all questions relating to matters arising under. this section shall in default of agreement. be settled by action or, with the consent of the parties by the Commission. (2) In this section 'damages' does not include any sum ordered or directed pursuant to any provisions of the Crimes Act 1900 as amended by subsequent Acts. to be paid by way of compensation for an injury, but any such sum so paid to a worker shall be deducted from the compensation payable to him under this Act in respect of the injury."
At first instance, the respondent succeeded, the Court concluding that it was entitled to an indemnity notwithstanding that it had, by its negligence, contributed to the relevant injury. That decision was affirmed on appeal.
The High Court unanimously allowed the appeal and concluded that the right to an indemnity which was conferred by s. 64(1)(b) of the 1926 Act was conferred only upon an employer who had no liability to the worker in relation to the compensable injury (other than a liability to pay statutory compensation). Senior counsel for South West submitted that in these circumstances, because I had previously found that the negligence of the Council was a cause of the injury from which the right to compensation arose, the Council was not entitled to an indemnity and that it could not succeed in either of the proceedings brought under s. 151Z of the WCA.
In J Murray-More Barwick CJ said the following: "It provides in s. 64, in my opinion, for the case where the employee sues a person or persons other than the employer. In my opinion it intends to cover the case where the only liability of the employer to the worker is the statutory liability to pay compensation. It seems to me that it sufficiently expresses this by the expression "a legal liability in some person other than the employer", appearing as it does after the provisions of s. 63. These words, in the evident scheme of Pt VIII, are adequate to indicate that the employer for whom s. 64 is making provision is not one of the persons who has produced the circumstances out of which the liability to pay compensation has arisen. The language contemplates, and on its proper construction provides for, the case where a stranger, or strangers, so far as employer and workman are concerned has or have caused the compensable injury. The person who is to indemnify the employer under s. 64 (I) (b) is that person, that is to say, a person other than the employer, who in the circumstances caused the injury in respect of which the compensation has been paid."
His Honour went on to say (at 341): "I see no room whatever for a construction of the section which would provide the employer with complete or partial relief from the damages which he may become liable to pay because of his own breach of duty to his employee. The contradistinction in par. (a) of the sub-section supports the view I have expressed. The concession of that paragraph is that the worker may sue "that person", i.e. the person other than the employer who has caused the injury for damages and the employer for compensation. There is no room for including the employer in the description of "that person". I am unable to read the expression "other than" as the equivalent of "as well as".
His Honour then said (again at 341): "In my opinion, the proper construction of s. 64 (I) would preclude the respondent, as an employer whose negligence has contributed to the occurrence out of which the right of compensation arose, from recovering an indemnity under par. (b) of the sub-section. The right to an indemnity under s. 64 (I) (b) is only given to an employer who has no other liability to the worker in relation to the compensable injury than the statutory liability to pay workers' compensation.
Gibbs J (as his Honour then was) said (at 349): "The provisions of s. 64 apply, as the opening words of the section state, "Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof'. Those words, considered alone, are in my opinion ambiguous; they may be intended to be an exhaustive statement and to refer to circumstances which create a legal liability in a stranger but not in the employer, or they may be intended to refer to circumstances which create a legal liability in a stranger whether or not the employer is also legally liable. However, the case where the injury was caused by the negligence of the employer is dealt with by the immediately preceding section, s. 63. This suggests that It was intended that s.64 should apply to cases where the injury was not caused by the negligence of the employer. This conclusion is strongly supported by a consideration of the provisions of s. 64 (1) (b) themselves. If s.64 applied where the employer had been guilty of negligence causing the injury, the result would be to give to the negligent employer a right to a complete indemnity from the stranger. This would be so even if in fact the employer's share in the responsibility for the injury was much greater than that of the stranger. That is, of course, the result which was reached in the Supreme Court and for which the respondent contends, but it is one most unlikely to have been intended by the legislature: the employer is the person primarily liable to pay the compensation and it would have seemed irrational and unjust to give him a right of complete indemnity against a stranger whose degree of fault and responsibility for the worker's injury was no greater than his own. Such a resuIt would have seemed particularly surprising in 1906. for at that time (and still in 1926) the law did not permit one tortfeasor to recover contribution from another who had been responsible for the same damage. These considerations might not have been of importance if the words of the statute were plain and unambiguous. but where two meanings are open, as is the case with the opening words of s. 64 (1). it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust. The view that I have expressed is in substance that which was taken in Cory & Son Ltd. v. France. Fenwick & Co. Ltd. by Buckley L.J. (41) and by Kennedy L.J. (42). I respectfully agree with their observations on this point, although the other reasons given in support of their conclusion are rather less persuasive."
His Honour went on to conclude that s. 64(1)(b) of the 1926 Act did not give, to an employer, a right to an indemnity against a stranger when the injury of the worker was caused by the negligence of both parties.
Prima facie, the decision in J Murray-More supports the proposition advanced on behalf of South West. However, there are a number of more recent authorities in which the issue has been further considered.
In I & J Foods Pty Limited v Bergzam Pty Limited (1997) 14 NSWCCR 486 the respondent had employed a truck driver who was injured by a moving forklift in the course of loading items onto his truck. The respondent made compensation payments to the truck driver and then sued the appellant to recover the amount of those payments pursuant to s. 151Z(1)(d) of the WCA. At trial, the sole issue was whether the negligence of the respondent had contributed to the worker's injury. The trial judge concluded that the respondent had not been relevantly negligent. At the hearing of the appeal it remained the position of the parties that the sole issue was whether the negligence of the respondent had contributed to the worker's injury.
However in a supplementary written submission which was made after the hearing of the appeal had concluded, the respondent contended that a (then) recent amendment to the provisions of s. 151Z of the WCA operated to overcome the effect of the decision in J Murray-More, as a consequence of which the respondent was entitled to a partial indemnity from the appellant even if its negligence had contributed to the injury from which the right to compensation arose. The amendment upon which the respondent relied was that which inserted the words "or is entitled to take" into s. 151Z(2)(a), as it now appears.
Giles AJA (as his Honour then was and with whom Priestley JA and Simos AJA agreed) traced the history of s. 151Z before saying the following: "When s151Z(2) replaced s150(2) in 1989 it was necessary to accommodate the restoration in modified form of the worker's entitlement to damages at common law from the employer. But the task to be performed was of the same kind. S151Z(2) was concerned to adjust recovery of contribution by the third party from the employer as joint tortfeasor to reflect the modified entitlement of the worker to damages at common law from the employer (para(b)) and to reduce the worker's damages from the third party by the excess over the amount which could be so recovered (para(a)). It still operated where the worker took proceedings, and para(e) adjusted the employer's indemnity so that the burden of the compensation paid under the Act would remain with the employer to the extent of the employer's fault which led to the employer paying contribution to the third party. The difference was that para(e) was introduced by words apt to enlarge the employer's entitlement to indemnity from the third party and free it from Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd, necessarily so because any effect of s151Z(2)(e) was predicated upon the worker taking or being entitled to take proceedings against the employer for damages at common law (see para(a)). Thus s151Z(2)(e) took effect by providing that s151Z(1) should apply "as if the worker had not been entitled to recover damages from" the employer, a tolerably clear statement that the limitation declared in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd should be deemed out of existence so as to permit partial indemnity"(emphasis added).
His Honour went on to say: "So in my view Bergzam's contention in the supplementary written submission is correct, and it may be entitled to partial indemnity even if its negligence contributed to the occurrence out of which the right to compensation arose. It follows that, going beyond the basis on which the proceedings had been conducted before Herron DCJ, there should not necessarily be judgment for I& J. Rather, Bergzam may be entitled to partial indemnity from I& J. There must be an assessment of the damages which could be recovered by Mr Price from I& J and of the contribution which I& J could recover from Bergzam. If the amount of the contribution is less than $119,779.04, the difference can be recovered by way of indemnity" (emphasis added).
A similar approach was taken in J Blackwood and Son v Skilled Engineering [2008] NSWCA 142.
In that case Campbell JA said at [44] and following: "[44] It is the prima facie effect of section 151Z(1)(d) that an employer who has paid compensation to a worker is entitled to recover the amount of that compensation from any non-employer wrongdoer whose wrong has caused the injury that led to the payment of the compensation, provided only that the non-employer wrongdoer does not end up paying more than the amount of the damages which the non-employer wrongdoer would have had to pay if sued for that wrong. Further, that prima facie right of the employer under section 151Z(1)(d) is one that the employer has whether or not the employer is itself a tortfeasor who has caused the injury to the worker with respect to which the compensation has been paid. [45] Section 151Z(2)(e) modifies that prima facie situation in a situation where (A) the worker has an entitlement to take proceedings for damages against both the employer and a non-employer, and (B) the worker has not taken proceedings against his employer or, having taken those proceedings and obtained a judgment, has not either (i) been paid the amount of the judgment or (ii) received whatever it may be that the worker has agreed to accept in satisfaction of the worker's right to be paid the amount of the judgment" (emphasis added)
In Milich v Council of the City of Canterbury (No 2) [2012] NSWSC 450 Davies J noted (at [5]) that one of the matters which arose for consideration was whether, in circumstances where a worker had taken proceedings against both his employer and a third party, and where it had been determined that both the employer and the third party were negligent, an indemnity was available to the employer under s. 151Z of the WCA.
His Honour concluded (at [8]) that an indemnity was available to the employer notwithstanding that it had been sued and had been found to be negligent. His Honour proceeded to cite four matters in support of that proposition: "[9] First, one can discern a number of indications in Pt 5 of the Workers Compensation Act (dealing with common law remedies) that the worker is not entitled to double dip - s 151A(1), s 151Z(1)(a), (b), (c), (e) and (e)(i). [10] Secondly, in balancing matters between the employer and the non-employer wrongdoer Campbell JA (with whom Beazley JA and seemingly Giles JA agreed) said this about s 151Z in J Blackwood & Son: [33] Section 151Z(2) deals with the consequences of an employer tortfeasor never ending up paying, by way of damages, more than its proportionate share of the responsibility for the worker's injuries, multiplied by the total damages that the worker is entitled to receive under the modified damages regime established by the Act. The consequences with which it is concerned are on the liability of a non-employer wrongdoer to pay damages to an injured worker, and on the employer's right under section 151Z(1)(d) to obtain indemnity for workers compensation payments it has made to the worker. [11] Thirdly, when discussing s 151Z(1)(d) before considering how s 151Z(2)(e) modified that prima facie situation Campbell JA said this: [44] It is the prima facie effect of section 151Z(1)(d) that an employer who has paid compensation to a worker is entitled to recover the amount of that compensation from any non-employer wrongdoer whose wrong has caused the injury that led to the payment of the compensation, provided only that the non-employer wrongdoer does not end up paying more than the amount of the damages which the non-employer wrongdoer would have had to pay if sued for that wrong. Further, that prima facie right of the employer under section 151Z(1)(d) is one that the employer has whether or not the employer is itself a tortfeasor who has caused the injury to the worker with respect to which the compensation has been paid. (emphasis added) This is a strong indication that, contrary to the Plaintiff's submission, the decision in J Blackwood & Son was not directed only to the situation where a worker had not taken proceedings against the employer. [12] Fourthly, the decisions in Williams v Twynam and Cobcroft v Aggcon are clear indications that the reasoning in I&J Foods was not confined to the position where a worker has not taken proceedings against the employer. I consider that I ought to follow those decisions unless I consider them to be plainly wrong. I do not consider those decisions to be plainly wrong and, further, they seem to me to accord with the analysis provided by Campbell JA in J Blackwood & Son although that decision does not appear to have been cited to either Hoeben J or Fullerton J. [13] Accordingly, notwithstanding that the Plaintiff sued the employer and I found a breach of duty on the part of the employer, the employer is entitled to the indemnity referred to in s 151Z(1)(d)."
In my view, each of the decisions in I&J Foods, J Blackwood and Son and Milich tend against the submission advanced on behalf of South West as to the construction of s. 151Z of the WCA. Each supports the proposition that an employer has a right of indemnity under s. 151Z, irrespective of whether it is a tortfeasor.
Senior counsel for South West also relied upon the decision of the Court of Appeal in CSR Timber Products Pty Limited v Weathertex Pty Limited [2011] NSWCA 49; (2011) 83 NSWLR 433. In that case, a worker had contracted a disease of gradual onset between 1965 and 2004, in respect of which he received compensation payments from his most recent employer. That employer brought proceedings for indemnity under s. 151Z of the WCA against the company which had employed the worker over an earlier period during which the disease had been contracted. The claim was defended on the basis that the previous employer fell within the meaning of the term "the worker's employer" as it appeared in that provision and therefore the claim should fail. That defence was rejected. An appeal to the Court of Appeal was dismissed.
Meagher JA, with whom Bathurst CJ and Hoeben JA agreed, said (commencing at [33]): "[33] Section 151Z(1), as did these earlier provisions, regulates the enforcement by a worker of remedies under the common law and under the Act in respect of an injury for which compensation is payable. It is critical to an understanding of the scheme of s 151Z to appreciate that if s 151Z(1) is considered alone, it does not apply where the employer is liable to the worker for damages at common law. That is because its application depends on the injury for which compensation is payable being caused under circumstances creating liability in "some person other than the worker's employer" to pay damages in respect of that injury: see, in relation to s 64(1) of the 1926 Act, Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 341, 348, 351, 352, 354; and, in relation to s 151Z(1) of the 1987 Act; I&J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 at 492-496. [34] In Murray-More, the High Court followed the decision of the English Court of Appeal in Cory & Son Ltd v France Fenwick & Co Ltd [1911] 1 KB 114. It held that the right to an indemnity under s 64(1)(b) was given only to an employer who had no liability to the worker independently of the Act. Barwick CJ considered (at 340) that the indemnity was intended to cover the case where "the only liability of the employer to the worker is the statutory liability to pay compensation". Gibbs J described (at 350) the reference to the employer entitled to the indemnity as being to "the person primarily liable to pay compensation". McTiernan J referred (at 348) to the cases to which the indemnity applied as ones "in which the employer has paid workers compensation". [35] The third parties against whom the employer has rights independently of the Act are described in s 151Z(1) as persons "other than the worker's employer". Section 151Z(1)(a) permits the worker to take proceedings both against a third party liable for damages at common law and against the employer for compensation. In that event, the worker cannot have double recovery and as between the employer and the third party, the primary burden to compensate the worker is on the third party (s 151Z(1)(b)). The indemnity in s 151Z(1)(d) gives effect to that scheme by entitling the employer who has paid compensation to be indemnified by any third party liable under the common law to pay damages to the worker: see generally per Giles AJA in I&J Foods Pty Ltd v Bergzam Pty Ltd at 492."
Senior counsel for South West submitted that the observations of Meagher JA, particularly at [33], recognised that nothing in s. 151Z entitled the Court to depart from the construction of s. 64 of the 1926 Act which was adopted by the High Court in J Murray-More and which, it was submitted, applied to s. 151Z of the WCA. In my view, the difficulty with that submission is that in CSR the question of whether or not an employer who was adjudged to be a tortfeasor remained entitled to a limited indemnity under s. 151Z did not arise for consideration. In my view, there is nothing in the judgment of Meagher JA in CSR which suggests that the judgments of Giles AJA in I&J Foods and Campbell JA in J Blackwood and Son should not be followed. As I have outlined, those decisions were applied by Davies J in Milich. There is no reason to depart from them.
It follows that in my view, the submission made on behalf of South West regarding the construction of s. 151Z of the WCA fails.
Further, the judgment of Meagher JA in CSR, and in particular his Honour's reference (at [35]) to s. 151Z giving effect to the statutory scheme, is at odds with the proposition that the Council's rights are limited to those conferred under the LRMPA. I do not accept that submission which was advanced on behalf of South West.
As to the first of the submissions made on behalf of South West specifically in relation to the proceedings brought by the Council arising from the death of Mr Buerckner, and leaving aside the question of whether the basis of that submission ought to have been specifically pleaded, it is certainly the case that Mrs Buerckner brought proceedings against EE. Those proceedings were discontinued: Buerckner v Essential Energy [2013] NSWSC 640. Whilst it is not in issue that amounts of compensation were paid by the Council, an entitlement on the part of the Council to recover those payments is not established by the fact that proceedings were commenced by Mrs Buerckner against EE and were later discontinued. Further, a concession was made on behalf of South West in these proceedings that had Mrs Buerckner successfully brought proceedings against South West for damages arising from the death of her husband, the amount of damages that she would have recovered, not including damages for nervous shock, would not have been less than $400,000.00. In these circumstances, having regard to the amount of compensation paid by the Council (about which there is no issue) the Council has established its entitlement to recovery.
As expressly acknowledged by senior counsel for South West, the submissions made regarding the construction of relevant provisions of the CAA run contrary to the decision in United Airlines. In that case, the respondent's employee was injured when he was hit on the head by an object which became dislodged shortly after the aircraft on which he was travelling had landed. Section 37 of the CAA was in the following terms: "Nothing in [Pt IIIC and the Convention] shall be deemed to exclude any liability of a carrier: 1. to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers' compensation; or 2. to pay contribution to a tortfeasor who is liable in respect of the death of, or injury to, the passenger; but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part".
Article 29 of the Warsaw Convention was in the following terms: 1. The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 2. The method of calculating the period of limitation shall be determined by the law of the Court seised of the case.
The respondent made payments of compensation to its employee and sought to recover those payments from the appellant under s. 151Z(1)(d) of the WCA. The primary issue was whether such an action was time barred by the operation of Article 29.
Allsop P (with whom Macfarlan JA and Handley AJA agreed) concluded (at [77]) that the right of indemnity in the CAA was not subject to the 2 year limitation period. In light of that decision, and as anticipated by senior counsel for South West, the submission that the right of action of the Council under s. 151Z is extinguished after a period of 2 years must be rejected.
It follows that in my view, the Council is entitled to succeed in each of the proceedings brought under s. 151Z of the WCA.
Finally, the payment of interest is not a payment made under, or pursuant to, s. 151Z(1)(d) of the WCA. Rather, it is a statutory claim to reimburse an employer who has paid compensation for being deprived of its money, pending payment of that compensation by the tortfeasor: Kwanchi v Kocsis Pty Limited (1996) 40 NSWLR 270 at 276 per Clarke JA (Priestley JA and Handley JA agreeing). In these circumstances I am satisfied that the Council is entitled to the payment of interest on the judgment sum in each case.

[44]

The differing approaches taken by the experts

Although Mr Hunt and Mr Kahler reached different conclusions regarding the quantum of the claim for loss of profits, their joint report (at paragraph 3) expressed concurrence as to the general approach that should be adopted with a view to calculating that loss. That general approach involved essentially two steps: 1. estimating the loss of gross income that was suffered by South West as a result of the destruction of MFI; and 2. deducting from the amount calculated in (i) the operating costs that were saved as a result of the reduction in work performed by South West during the loss of income period (or in other words assessing the operating costs that would have been incurred in order to derive the lost income).
The joint report of Mr Hunt and Mr Kahler noted that their different conclusions as to quantum arose due to differences with respect to: 1. the loss of gross income which was suffered; 2. the operating costs that were saved; and 3. the duration of the loss of income period.
Both experts agreed that MFI generated a gross income of approximately $1,051,022.00 during the period August 2003 to January 2006. In his first report, Mr Hunt calculated the loss of gross income based upon a monthly average generated during that period, which he calculated as 29 months (but which he later conceded should have been 24 months).
Mr Kahler on the other hand expressed the view that it was more appropriate to base any assessment of the loss of gross income upon income derived by MFI during the seven month period immediately prior to the accident. Mr Kahler expressed the view that the approach adopted by Mr Hunt failed to have regard to the fact that the gross income generated by MFI in the 7 months immediately prior to the accident was 50 lower than it had been in the previous 12 months.
Mr Kahler noted, in particular, that during the financial year ending 30 June 2005 (i.e. the financial year prior to the accident) MFI derived income of $579,841.00 from "Wet Hire" (a reference to fire fighting work). However, in the 7 months immediately prior to the accident, MFI derived only $2,600.00 from that work. Mr Kahler said that Mr Hunt had failed to take account of that alteration in income. In these circumstances, it was Mr Kahler's opinion that the period adopted by Mr Hunt as the basis of his calculations was not properly reflective of the income which was likely to be earned, and that the 7 month period leading up to the date of the accident represented a far more accurate yardstick by which any loss of profits should be calculated.
In the course of his evidence, Mr McKenzie was taken to aspects of Mr Kahler's opinion. He agreed that in the 7 month period leading up to the accident the income derived by MFI was significantly lower than had previously been the case. He also agreed that drought conditions had impacted upon the amount of work available and that his had led to a "big slowdown" in work between mid 2005 through into 2006.
That evidence was generally consistent with that given by Mr Dolby, who said that 2005 was a "bumper year" (particularly in terms of aerial spraying work) and that thereafter there was a general change in aviation conditions which resulted in many operators being forced to actively look for work. He said that as a consequence of all of these matters, income "dropped off". He agreed that the significant drop in available agricultural work extended beyond the date of the accident and into 2007.
Against this background, Mr Hunt was cross-examined about the methodology he had adopted for the purposes of his calculations. He conceded that he did not give consideration to what the relevant business conditions would have been after the accident in February 2006 but had used the past period leading up to that time to perform his calculations. He agreed that if the business conditions which had prevailed in the 7 months prior to the accident had continued after the accident and into 2007, it would affect his opinion and would operate to reduce the loss of profits that he had calculated. Mr Hunt also conceded that the occurrence of a number of natural disasters in 2004 and 2005 contributed to, or perhaps even accounted for, the spike in income of South West during that period. He agreed that such a spike in income had not been reflected in previous years. He also agreed that it was not reflected in the 7 month period leading up to the accident.
In my view, the approach of Mr Kahler represents a far more reliable basis upon which to calculate any loss of profits suffered by South West. Mr Hunt conceded that there was a particular spike in income during the 24 months period upon which he based his calculations. In circumstances where such increase in income did not occur prior to 2004/2005, and was not repeated in the 7 months leading up to the accident, the use of a 24 month period prior to the accident upon which to base a calculation of loss of profits is, in my view, artificial.
MFI generated a gross sum of $203,502.00 during the 7 months prior to the accident, a monthly average of $29,071.00. Mr Kahler adopted a margin of 20% for the purposes of calculating gross profit. The amount of gross profit per month generated by MFI in the 7 month period prior to the accident was therefore $5,814.00.

[45]

The period of loss

South West claims loss of profits over a period of 12 months following the accident. That period was adopted by Mr Hunt for the purposes of his calculations, although such adoption appears to have emanated from his instructions, as opposed to being based upon any specific evidence. Mr Kahler calculated losses over 4 months. This was on the basis that the modifications to SLT to bring it up to those of MFI had been completed within that time.
Mr McKenzie stated in his affidavit that the modifications to MFI took approximately six months to complete. In evidence, he accepted that the period was four months.
In his second affidavit, Mr McKenzie said that he recalled "numerous requests" being made to South West following the accident for services which could have been provided by MFI piloted by Mr Thrupp but which, because of the accident, could not be provided. When cross-examined in relation to these matters, Mr McKenzie was exceedingly vague. He was unable to give any specific evidence of the details of any such requests. No records were produced which recorded any particulars of any such requests. According to Mr McKenzie all of the requests were passed on to another operator. No representative of any other operator was called to give evidence of having received the benefit of any referral from Mr McKenzie, or from any other person within South West.
Mr McKenzie also asserted that in order for South West to resume its agricultural operations following the accident, it needed an experienced pilot to replace Mr Thrupp. He gave evidence that he had "spoken to" people about the availability of replacement pilots. When pressed, he was unable to provide any real detail about who he contacted, when such contact was made, or what (if anything) resulted from it.
The evidence of Mr McKenzie, both in terms of lost work and the efforts to obtain a replacement for Mr Thrupp was vague and imprecise in the extreme. Neither issue was referred to in the first of his affidavits. Both appear to have arisen as something of an afterthought. I do not accept Mr McKenzie's evidence in either respect.
In all of these circumstances I am satisfied that any loss of profits of South West should be limited to the four month period following the accident, at a figure of $5,814.00 per month, making a total of $23,256.00.

[47]

The apportionable claims

An issue arises as to whether the claims brought by Country Connection and/or South West are apportionable claims within the meaning of Part 4 of the Civil Liability Act 2002 (NSW) ("the CLA"). I set out Part 4 in its entirety: Part 4 - Proportionate liability 34 Application of Part (1) This Part applies to the following claims ("apportionable claims"): (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law. (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (2) In this Part, a "concurrent wrongdoer", in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty. (4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. (5) (Repealed) 34A Certain concurrent wrongdoers not to have benefit of apportionment (1) Nothing in this Part operates to limit the liability of a concurrent wrongdoer (an "excluded concurrent wrongdoer") in proceedings involving an apportionable claim if: (a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim, or (b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim, or (c) the civil liability of the concurrent wrongdoer was otherwise of a kind excluded from the operation of this Part by section 3B. (2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part. 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim: (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings: (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise. 35A Duty of defendant to inform plaintiff about concurrent wrongdoers (1) If: (a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the "other person") may be a concurrent wrongdoer in relation to the claim, and (b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about: (i) the identity of the other person, and (ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim, and (c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim, the court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff. (2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise. 36 Contribution not recoverable from defendant A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim: (a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant), and (b) cannot be required to indemnify any such wrongdoer. 37 Subsequent actions (1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. (2) However, in any proceedings in respect of any such action the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff. 38 Joining non-party concurrent wrongdoer in the action (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim. (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim. 39 Application of Part Nothing in this Part: (a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable, or (b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable, or (c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.
The claim brought by Country Connection against EE for damages for the loss of the helicopter, and the claims brought by South West for rectification costs and loss of profits, are each apportionable claims within the meaning of s. 34(1)(a) of the CLA. In these circumstances s. 35 and 36 of the CLA become operative.
I have already made findings in respect of the various acts and omissions which were causative of the accident. It follows from those findings that for the purposes of each of the claims brought by Country Connection and South West that EE, South West and the Council are each concurrent wrongdoers within the meaning of s. 34(2) of the CLA: Reinhold v New South Wales Lotteries Corporation (No. 2) (2008) 82 NSWLR 762; [2008] NSWSC 187 at [19]-[20].
I have also found that in flying the helicopter Mr Thrupp breached his duty of care and that such breach of duty was causative of the accident. Mr Thrupp is not named as a party to any proceedings. However in light of my previous findings, Mr Thrupp is also a concurrent wrongdoer for the purposes of Part 4 of the CLA. As Mr Thrupp's employer, South West is vicariously liable for his negligence.
It follows that for the purposes of each of the apportionable claims under Part 4 of the CLA there are four concurrent wrongdoers, namely: 1. South West; 2. the Council; 3. EE; and 4. Mr Thrupp.

[49]

Submissions of South West

Senior counsel for South West submitted that in apportioning responsibility, it was necessary to make a comparison as to the culpability, and the causal potency, of the acts of the relevant parties. It was submitted that a question of apportionment was one of fact and that in these circumstances it was not permissible to elevate observations about the facts of other cases into principles of law. In other words, it was submitted that issues of apportionment must necessarily be determined according to the facts of the case in question, and not according to the facts of, or approach taken in, other cases.
Senior counsel submitted that the findings against South West as to liability essentially involved findings of failures attributable to: 1. the conduct of Mr Dolby, in his capacity as the Chief Pilot, in preparing for the survey; and 2. Mr Thrupp, in flying the aircraft.
It was submitted that the finding of negligence against Mr Dolby amounted to a finding that he had failed to carry out a proper briefing and assessment and that although his various omissions fell short of the standard required, his conduct did not have the causal potency of other impugned conduct of other parties.
In terms of the findings made in respect of Mr Thrupp, it was submitted that there was no suggestion that Mr Thrupp had approached his task recklessly. Reliance was also placed on the fact that Mr Thrupp was not flying contrary to any direction, to any normal survey practice, or to his relevant Government approvals. It was submitted that Mr Thrupp was flying in an area where a single and dangerous wire was present which would have been able to be detected had it been appropriately marked.
It was submitted that the essence of the finding against the Council was that no process of risk management was carried out, and that the care of its employees was left to an assumption that the flight threshold would be 500 feet. Reliance was placed on the fact that nothing had been done to ensure that such a threshold was fixed, and that it had been merely assumed. It was submitted that the council's answer to that failure, namely that such a direction would not have prevented the accident from occurring, was contrary to the evidence and wholly unsupportable. It was submitted that the evidence allowed for only one conclusion, namely had Mr Thrupp been directed as to a flight threshold, he would have complied with it. It was submitted that such a conclusion was irresistible when the reputation of Mr Thrupp was taken into account.
In terms of the position of EE, it was submitted that a marker ball on the wire would have revealed its presence to a pilot on both a high level flyover and on the approach that Mr Thrupp had taken in the lead up to the accident. Senior counsel for South West relied upon the evidence that a marker of that nature would have made the wires "incredibly more visible" and would have avoided the accident.
In light of all of these considerations, it was submitted that any apportionment should reflect the fact that the culpability and causal potency of the acts and omissions of both the Council and EE far outweighed those of South West. It was submitted that the appropriate apportionment was: 1. South West - 15%; 2. EE - 30%; and 3. The Council - 55%.

[50]

Submissions of the Council

The primary submission advanced on behalf of the Council was that notwithstanding my factual findings, it should be completely indemnified by South West. In the alternative, the Council submitted that any liability apportioned to it should not exceed 10 percent.
It was submitted that any apportionment exercise was one which involved the Court considering the facts, assessing the extent of the breach by each tortfeasor, and then making a comparison of the consequences with a view to determining what was just and equitable. It was submitted on behalf of the Council that there were two important underlying factors in such an exercise. Firstly, it was submitted that the fact that the Council owed a non-delegable duty to its employees did not impact upon the question of apportionment, and did not, of itself, call for any greater degree of responsibility. Secondly, and in light of the findings I reached regarding the conduct of Mr Boyd and Mr Sullivan, it was emphasised that the task of apportioning responsibility did not involve any punitive element, and that what was required to be taken into account was the whole of the conduct which was causative of the accident.
It was submitted on behalf of the Council that the act which had overwhelmingly caused the accident was the dangerous flying by Mr Thrupp, and in particular his action in descending to a level which was not only dangerous but which was, for the purposes of the conduct of the survey, completely unnecessary. It was submitted that irrespective of any direction given by the Council as to the altitude at which the flight was to be operated, it remained incumbent upon Mr Thrupp not to fly as low as he did.
It was further submitted that the Council had placed significant trust in South West, a commercial aviator experienced in the conduct of weed surveys necessitating low level flying, to competently and safely convey its employees. It was emphasised that South West was a specialised and licensed aviation contractor which held itself out as having particular expertise in the conduct of aerial weed surveys.
It was submitted that the breaches of duty found against the Council were properly categorised as "system failures" which resulted in undue reliance being placed on South West for the safety of the Council employees. It was submitted that the negligence of EE was of a similar nature, namely a failure to identify and warn of the presence of the wires which were situated in a potential flight path for low flying aircraft, and which were difficult to detect if they were unmarked. It was submitted that bearing in mind the nature and scope of the undertaking, the responsibilities of EE and the Council, and the nature of the respective breaches on the part of EE and the Council, the degree of responsibility apportioned to each of them should be the same.
It was submitted that a comparison of the culpability and causal potency of the omissions of Mr Dolby and Mr Thrupp pointed to South West having far greater responsibility for the accident. It was submitted that by virtue of their respective positions, both Mr Dolby and Mr Thrupp necessarily had an appreciation, and indeed a direct knowledge, of the risk of low level flying and the associated risk of wire strike. It was submitted that such appreciation and knowledge went to the very core of the operations of South West, and was one of the fundamental platforms on which it was permitted to take members of the public on helicopter flights.
It was submitted that in all of these circumstances, the failures on the part of South West were substantially more serious than those of the Council or EE. The Council pointed, in particular, to the following: 1. a heavy onus was placed upon South West to carry out highly specialised work in a manner that protected members of the public who used its services; 2. members of the public who sought aviation services relied on providers of those services to carry out their duties carefully and safely; 3. the Council had a limited degree of control over, and input into, the highly specialised activity of flying a helicopter; 4. there was a substantial departure from the expected standard by Mr Thrupp, but a comparatively minor degree of departure from the expected standard by the Council; 5. the substantial departure on the part of Mr Thrupp was best gauged by the fact that: • Mr Thrupp, as the pilot, was in charge of the helicopter; • he alone made the decision to fly at the height of 120 feet in circumstances where it was not necessary to do so; and • by doing so, he breached one of the fundamental principles of good airmanship, and that such breach led directly to the crash.

[51]

Submissions of EE

Senior counsel for EE submitted that the appropriate apportionment was: 1. the Council - 10 to 20%; 2. South West - 80%; 3. Essential Energy - 0 to 10%.
It was submitted on behalf of EE that the objective of any apportionment exercise was to ensure that there was appropriate contribution from, or apportionment between, the participants in the activity which had caused the relevant loss.
It was submitted that there were "system failures" on the part of each of the Council, South West and EE. In terms of the Council, it was submitted that the failure was constituted by (inter alia) the failure to impose a flight threshold and that had such a threshold been imposed, the accident would not have occurred. It was submitted that this failure was to be viewed in the context of the Council having engaged a specialist aviation contractor.
It was submitted that South West was also responsible for a system failure, constituted by a failure to conduct a proper briefing with Mr Thrupp. It was submitted that had such a briefing taken place, there would have been a specific assessment of the risk of a wire strike, and that the issue of the altitude at which it was necessary to perform the task would have been addressed and a flight threshold imposed. It was also emphasised that the flying of a helicopter was a skilled and specialised task which required rigorous training and licensing, and that in flying the helicopter as he did, Mr Thrupp breached a number of principles of good airmanship.
It was further emphasised that the failures of South West had occurred in circumstances where it held an aviation licence, was a commercial aviator, and provided low level flight services for reward. It was submitted that in comparison, the only finding of negligence against EE arose from its failure to mark the power lines.
In all of these circumstances it was submitted that the preponderance of culpability was on South West, to a lesser extent on the Council, and to a lesser extent again on EE.

[52]

Consideration and conclusion

The making of an apportionment between parties of their respective shares in the responsibility for damage involves a comparison of culpability, and a comparison of the relative importance of the acts of the parties in causing the damage. The whole of the conduct of each negligent party must be subjected to a comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492.
In the present case, although it may be appropriate in one sense to describe some of the failures to which reference has been made as "system failures," the adoption of such shorthand runs the risk of obscuring the precise nature of an omission or omissions which was or were causative of the accident.
I accept that the task of apportioning responsibility does not incorporate any punitive element. However in determining the position of the Council, the fact remains that the failures of Mr Boyd and Mr Sullivan are amongst those which must be the subject of comparative examination.
The failures on the part of the Council, through Mr Boyd and Mr Sullivan, were many and varied. There was a failure to ascertain the height threshold for the flight, with both Mr Boyd and Mr Sullivan proceeding upon an assumption, made without discussion or enquiry, that it would be the same as it had been on a previous occasion. There was an associated failure to impose a threshold, either by giving a direction to Mr Stephenson or giving a direction to Mr Thrupp. There was a failure to conduct a risk assessment. There was a failure to access data held by the Council which demonstrated the presence of overhead wires in the area which was the subject of the survey.
Significantly, these failures occurred in circumstances where Mr Boyd and Mr Sullivan were both aware of the risk of wire strike. The Council had, through Mr Boyd and Mr Sullivan, the capacity to impose a flight threshold. Accordingly, the Council had the capacity to exercise some control over the conditions in which the flight was conducted. Had an appropriate direction been given, there is no reason to think that Mr Thrupp would not have adhered to it. Viewed in this way, although the omissions of Mr Boyd and Mr Sullivan might be described as systemic failures, they were nevertheless substantial.
In terms of South West, there was no risk assessment carried out by Mr Dolby. That failure occurred in circumstances where Mr Dolby knew that the survey would involve low level flying. As an experienced aviator, Mr Dolby must have known of the risks involved in such flying. In particular, he must have known of the risk of wire strike. However of even greater significance is the fact that South West, through Mr Thrupp, had complete control of the flight as it was being conducted. Mr Thrupp acted dangerously in flying as he did. There was no need for him to have done so.
Moreover, the failures on the part of Mr Dolby and Mr Thrupp occurred in circumstances where South West was a commercial aviator who represented itself to be experienced and competent in carrying out surveys of this nature. Although the failures of the Council were significant, the fact remains that the Council was entitled to rely upon the experience of South West. Although, as I have said, the Council had some capacity to control the conditions under which the flight was conducted, that capacity necessarily arose before the flight departed. The ultimate control of the flight conditions rested with South West, through Mr Thrupp.
The wire struck by the helicopter was, on the evidence, difficult to detect. That difficulty could have been overcome by marking it in some appropriate way which would have rendered it visible. The omission to do so, whilst a cause of the accident, was of less causal potency than the acts and omissions of either the Council or South West. In particular, EE had no responsibility to conduct any risk assessment in respect of the flight, and it had no control over the flight, either before it departed or whilst it was being conducted. In these circumstances, the culpability of EE must be substantially less than that of either South West or the Council.
In my view, and although it is not determinative, the fact that South West had control over the flight in the way I have described it is of particular significance. Its capacity to exercise control was far greater than that of the Council, by virtue of the fact that it had that capacity whilst the flight was being conducted, as opposed to before it departed. As I have noted, EE had no such capacity at all.
Moreover, the acts and omissions of Mr Dolby and Mr Thrupp arose in the context of South West being a commercial aviator who held itself out to be a licenced and competent provider of low level aerial services. They also arose in circumstances where both Mr Dolby and Mr Thrupp knew of the risks of low level flying generally, and of wire strike in particular.
In these circumstances, the conduct of South West was of greater causal potency than that of either the Council or South West. In light of my findings regarding the failures on the part of Mr Boyd and Mr Sullivan I am unable to accept the submission that the Council should be completely indemnified by South West. However, South West must bear a greater portion of responsibility than either of the remaining two parties.
For these reasons, I apportion responsibility for the accident as follows: 1. South West 70% 2. the Council 20% 3. EE 10%

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (54 paragraphs)

Legislation Cited (4)

Cases Cited (16)