Izzard v Dunbier Marine Products [2012] NSWCA 132 | Case summary

Court of Appeal (NSW)|2012-03-05|Before: Basten JA, Macfarlan JA, Barrett JA

THE APPLICATION OF SECTION 151Z 111Section 151Z(1)(a) of the Workers Compensation Act 1987 permits a worker both to take proceedings against a third party for damages and to claim compensation from his or her employer under the Act (although the worker is not entitled to retain both). 112Section 151Z(2) provides that if, in respect of an injury for which compensation is payable under the Act, a worker takes proceedings against a third party for damages and also "takes or is entitled to take" proceedings independently of the Act to recover damages from the employer, the following provisions apply: "(2) (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) [being proceedings against a third party for damages] 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, ... ". 113As Mr Buckley's injuries were ones for which compensation was payable under the Workers Compensation Act and third parties (Mr Izzard and Haulage), whom he has sued for damages, raised a defence under s 151Z(2)(c), the following steps need to be taken: (a) The contribution which Mr Izzard and Haulage would (but for Part 5 of the Act) have been entitled to recover from Dunbier as joint tortfeasor needs to be determined. This is the amount obtained when the percentage responsibility of Dunbier for Mr Buckley's injuries (which I have determined to be 40 per cent) is applied to the amount (not in issue on appeal) necessary to compensate Mr Buckley for his injuries. (b) It is then necessary to determine the amount that Mr Buckley would have been entitled to recover from Dunbier under Part 5 of the Act. One barrier to his recovery may have been s 151H which falls in Division 3 of Part 5 of the Act. Dunbier contended that this section would have precluded Mr Buckley from obtaining damages from Dunbier in respect of the injuries in question in these proceedings. (c) It is then necessary to apply the percentage representing Dunbier's responsibility (40 per cent) to the amount determined in accordance with (b). (d) The damages recoverable by Mr Buckley from Mr Izzard and Haulage are then reduced by the excess of the amount calculated in accordance with (a) over that calculated in accordance with (c). 114Section 151H contains the following limitation on the recovery of damages: "(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together. ... (4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. ... ". 115As Mr Buckley did not sue his employer, no medical assessment of his injuries in accordance with the Workplace Injury Management and Compensation Act 1998 ("WIM Act") has been made. Dunbier contended that in these circumstances Mr Izzard and Haulage did not, and could not, establish that Mr Buckley was entitled to recover damages from Dunbier. It thus submitted that the hurdle imposed by s 151H on the recovery of damages from Dunbier (that the degree of permanent impairment be at least 15 per cent) was applicable. 116Although I accept, on the authority of Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 at [71], that the onus of proof of Mr Buckley's entitlement rested upon Mr Izzard and Haulage, I otherwise reject Dunbier's submission. The presently relevant question posed by s 151Z(2) is: what damages would Mr Buckley have been entitled to recover from Dunbier? As Mr Buckley has not sued Dunbier for damages, the question is a hypothetical one. It is to be answered by reference to the circumstances existing at the time of the accident and not to some later time, such as when the worker brought proceedings against a third party (see Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516 at [42]). 117This hypothetical question is analogous to that which frequently arises in the assessment of damages for professional negligence. Where negligence has caused a client to lose the opportunity to bring court proceedings, an assessment must be undertaken of what would have been likely to occur at a notional trial of the proceedings (Johnson v Perez [1988] HCA 64; 166 CLR 351 at 366 - 7; Firth v Sutton [2010] NSWCA 90 at [141] - [156]). As was pointed out in Johnson, the assessment may well require "a broad brush approach" (at 367) as assumptions need to be made about such matters as the likely trial date and the evidence that would or should have been available at the notional trial. 118Likewise in the present context an assessment needed to be made as to what would have occurred if Mr Buckley had sued his employer. As in the professional negligence context, consideration needed to be given to the evidence that Mr Buckley would have had available for tender. In my view that required the Court in the present proceedings to make a finding on the balance of probabilities as to whether Mr Buckley would have been able to prove that a medical assessment of his injuries would have revealed a degree of permanent impairment of at least 15 per cent. Except in an obvious case of catastrophic injuries, the making of such a finding would require the Court to consider relevant medical evidence and the WorkCover Guidelines pursuant to which medical assessments are made in accordance with the WIM Act. 119This view accords with that arrived at by this Court in Fuller. In that case an employer sought from a third party, whose negligent driving had caused injury to an employee, indemnity for the worker's compensation that the employer had paid to the employee. To succeed in its recovery action under s 151Z(1) the employer needed to prove that the third party was liable to the employee for damages for non-economic loss. As the injuries arose out of a motor vehicle accident, ss 131 - 2 of the Motor Accidents Compensation Act 1999 were applicable. These sections prohibit an award of damages for non-economic loss unless, in the case of a dispute, a medical assessment conducted in accordance with that Act demonstrates that the injured person suffered a degree of permanent impairment exceeding 10 per cent. 120The third party in Fuller submitted that the employer could not demonstrate that the third party was liable to the employee for damages for non-economic loss when the employee had not undertaken a medical assessment in accordance with the Act. In rejecting this submission, Bryson JA (with the concurrence of Handley and Ipp JJA) said: "[46] It was necessary for K & J Trucks [the employer] to establish the amount in respect of which there was a liability of Mr Fuller [the third party] to pay damages in respect of Mr Kearney's [the employee] injury, but the statutory machinery regulating the determination of the amount of Mr Kearney's [the employee] damages has no application because it applies only to a claim for damages by Mr Kearney [the employee] and the award of damages to him. If it is to be established in proceedings under s 151Z(1)(d) what damages Mr Kearney [the employee] suffered the amount of those damages can be determined by the Court, in much the same way as the Court can determine other complex questions; the unavailability of the machinery by which the amount of Mr Kearney's [the employee] claim would have been decided if he made a claim is not a difficulty for making this determination. If the actual facts are proved it is reasonable to decide that as a matter of probability, the process through which Mr Kearney [the employee] would have had to pass if he had made a claim would have produced a result which accorded with the actual facts; that is a reasonable way of assessing the probabilities, and much more likely to be correct than to suppose or to act on the supposition that the machinery would have produced a decision that Mr Kearney [the employee] was not entitled to anything for non-economic loss. The question is not how much damages should be awarded to Mr Kearney [the employee], but how much are the damages which the circumstances in which Mr Kearney's [the employee] injury was caused created a liability in Mr Fuller [the third party] to pay in respect of the injury: the provisions of s.151Z(1) show that the amount of those damages may fall to be decided in circumstances in which an injured worker does take proceedings and recover damages, but also in circumstances in which he does not. The machinery provisions with which Mr Kearney [the employee] and others concerned in his claim would have had to comply if he made one cannot be complied with; but the provisions which require compliance with them have no application to K & J Trucks' [the employer] claim under s 151Z(1)(d)." 121Although in my view it was therefore unnecessary for Mr Izzard and Haulage to demonstrate that Mr Buckley had undertaken a medical assessment and that his degree of permanent impairment was at least 15 per cent, it was nevertheless necessary for them to satisfy the Court on the balance of probabilities that, at the hypothetical trial of an action by Mr Buckley against Dunbier, Mr Buckley would have been able to prove that he had undergone a medical assessment which revealed the requisite degree of impairment. On appeal, Mr Izzard and Haulage submitted that there was evidence before the primary judge from which that conclusion could be reached. Dunbier submitted the converse. 122As resolution of this issue would require consideration of material (including medical reports) which was not put before this Court and was not the subject of detailed argument, the issue should be remitted to the primary judge for determination. 123The parties did not identify any other issues between them concerning the quantification of the damages which Mr Buckley would have been entitled to recover from Dunbier. Accordingly, once the issue as to the degree of impairment has been resolved, the parties should be able to agree upon any necessary quantification of those damages and to apply the primary judge's finding as to contributory negligence and this Court's finding as to the apportionment of responsibility between the tortfeasors. 124If the Court below concludes that Mr Buckley would not have been able to demonstrate a permanent impairment of at least 15 per cent, the damages to which he is entitled from Dunbier are zero. In those circumstances the effect of s 151Z(2)(c) is to reduce the damages recoverable by Mr Buckley from Mr Izzard and Haulage by the 40 per cent of Mr Buckley's damages that Haulage would (but for Part 5 of the Act) have been able to recover from Dunbier as contribution but which is not in fact recoverable (due to s 151H in Division 3 of Part 5 of the Act).

THE COMPULSORY THIRD PARTY MOTOR VEHICLE INSURER'S LIABILITY 125As noted earlier, TAC, as the relevant compulsory third party motor vehicle insurer, is liable in relation to Mr Buckley's injuries only if those injuries were caused by and during the use or operation of Haulage's vehicle (which the parties accepted included the trailer upon which Mr Buckley's accident occurred) "by a defect in the vehicle" (see [70] - [71] above). 126In Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193 an employee suffered a serious injury to his back whilst lifting a heavy ramp that formed part of a trailer attached to a truck owned by the respondent employer. The Court held that the absence on the trailer of any form of hydraulic or mechanical assistance for lifting the ramp was a "defect" for the purposes of the Motor Accidents Compensation Act and that this defect caused the employee's injuries (at [69]). Spigelman CJ (with whom Handley and Powell JJA agreed) concluded as follows: "[68] The defect must be 'in' the vehicle. A vehicle is not 'defective' only because its operation in a particular manner may lead to injury. However, the manner in which it is intended to operate may determine whether there is a 'defect' 'in' the vehicle. [69] In the present case, the respondent submitted that the absence of any form of hydraulic or mechanical assistant for lifting was a 'defect' for purposes of the Act. The appellant emphasised the possibility of a team lift as a safe system of work for the trailer in its extant condition. In the circumstances of the present case, the appellant's characterisation should be rejected. [70] I have concluded above that the design of the trailer was such that it was intended to be used in circumstances where a single worker lifted each ramp. When this happened it was, in my opinion, the use or operation of a vehicle in which there was a 'defect' for its intended use. It was not negligent use of a vehicle otherwise fit for the purpose or use to which it was intended to be put." 127In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 an employee was injured when he sought to convey airline containers manually to the rear of the truck upon which they were loaded. The truck had a mechanical unloading system that would ordinarily have performed this task but it was inoperative at the time of the accident. The Court held that the employee's injury was not an "injury" within the definition of that word in s 3(1) of the Motor Accidents Act 1988 which was relevantly in the same terms as the definition under present consideration. 128The Court held that the operative cause of the employee's injury was not the defect in the vehicle but a negligent direction given by the employer to unload the vehicle manually. In so holding, Gummow, Hayne and Heydon JJ said: "[102] The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act. [103] It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver's [the employee] injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense" (Reference omitted). 129Their Honours noted (at [89]) that the parties to the appeal did not challenge the decision of this Court in Zurich v CSR. 130I consider that in light of the matters to which I have referred in [85] - [89] above, the perimeter frames in the present case were defective, rendering Haulage's vehicle itself defective. In my view the unstable nature of the frames when they were unsecured constituted a defect in Haulage's vehicle because the frames needed to be unsecured and moved to fulfil their intended purpose. As it was Mr Izzard's job, first, to unlock the frames (necessarily whilst he was on the ground), secondly, with the assistance of a Dunbier employee, to move the frames whilst he was on the tray of the trailer and thirdly, (whilst on the ground again) to re-secure the frames, there was necessarily a period of time in which the frames were unsecured when people were likely to be moving near them. They were heavy metal structures of some height, liable to topple over due to their small bases if care were not taken in applying force to them. The frames could not perform their intended role in the transit of the vehicle without imperilling the safety of those engaged in the unloading operations: if (as was intended to be the case) they were placed in such a way as to secure the cargo and to facilitate stacking of it, they had to be unsecured and moved in the course of the unloading operations. There was not only necessarily a short period of time during which they were unsecured but there was also a significant risk that they would remain so for the duration of the unloading operations (see [89] above). 131Furthermore the defective nature of the frames "resulted in and caused" Mr Buckley's injuries within the meaning of those expressions in the definition of "injury" in the Motor Accidents Compensation Act. The pressure that Mr Buckley applied to the relevant frame caused it to topple onto him. This would not have occurred if the post-accident modifications designed to stabilise the frames had been made prior to the accident. To use the language of the plurality in Allianz v GSF, the defect in the frames "had a predominant quality for, and an immediacy to [Mr Buckley's] injury" (at [103]). 132In Allianz v GSF the defective T-bar was not in use. In one sense its defective character caused the accident because its unavailability forced the employee to adopt an alternative, and dangerous, means of carrying out the same work. However this only made it a cause in an attenuated sense, not in the immediate sense required by the High Court. In the present case the defective item was not out of use. Rather, it fell on Mr Buckley while it was in use, and as a result of its defective character. The present case more closely resembles Zurich Australian v CSR where the defective ramp was being used for the purpose for which it was intended but its defective character resulted directly in injury to the employee. 133TAC submitted on appeal that the frame was not defective in the relevant sense because, when used by Mr Buckley as a hand-hold, it was not being used in the manner for which it was intended. In my view this submission too narrowly describes the function of the frames. The frames were designed to facilitate the carriage of boat trailers and associated equipment on the vehicle. It was essential to this use that on arrival they be moved to a different part of the trailer to permit unloading of the boat trailers and equipment. The relevant frame was positioned where it was at the time of the accident, and in an unsecured state, because of the unloading operations. At the time of the accident Mr Izzard and Mr Buckley were dismounting from the trailer, presumably with the intent on the part of Mr Izzard of securing the frames when he was on the ground. Even though all of the cargo may by then have been lifted off the vehicle, the unloading operations could not have been regarded as complete until those engaged in it had dismounted from the vehicle and the frames had been re-secured. The precise reason for pressure being applied to the relevant frame is not presently significant as the frames were performing their intended function in relation to Haulage's carriage of Dunbier's goods when the accident occurred. 134This approach is consistent with that of this Court in AMP General Insurance v Brett [1998] 27 MVR 492 in which a question arose as to whether a milk delivery boy who was struck by a passing vehicle whilst alighting from his truck to deliver milk had thereby been involved in an act independent of "the use or operation of the vehicle". The Court held that he had not because "[i]t is an integral part of the use of a milk delivery truck that somebody delivers milk from it" (at 495) (see also NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 at pp 321 - 2). In the same way, the dismounting of Mr Izzard and Mr Buckley from the vehicle trailer was a part of, or at least a necessary concomitant of, the unloading operation. Mr Buckley could hardly be expected to remain on top of the vehicle indefinitely, or to leave the frames unsecured. 135It follows from the above that I do not agree with the primary judge's conclusion that Mr Buckley's accident "did not occur in the use or operation of the vehicle and the injury was not caused by the use of the vehicle" (Judgment at [92]). His Honour found that the intended use of the frames was to "increase the capacity of the trailers to carry boat trailers from Victoria to Ingleburn" but that their "use as a hand hold was not a use in the operation of the vehicle" (Judgment at [97] quoted in [72] above). However he had earlier expressed the view that the "intended use of the frame encompassed the process of loading and unloading the trailer" (Judgment at [94]). For reasons that I have given earlier, I consider that Mr Buckley's accident occurred in the course of this process. 136Whilst the accident would likely have been avoided if Mr Izzard had locked the frames earlier or given appropriate instructions to Mr Buckley, those possibilities were not, in my view, "the predominant, proximate or immediate cause of the injury" (compare Judgment at [103]). Rather, as I have said, the cause in that sense was the defective frame. It is unnecessary to consider whether those possibilities to which the primary judge referred were joint causes of Mr Buckley's injury (see Allianz Australian v GSF at [59] per McHugh J).

ORDERS 137I agree with what Basten JA says concerning costs and with the orders that his Honour proposes should be made to dispose of the appeal. 138BARRETT JA: I agree with Macfarlan JA. 139I wish to add some observations about the process of calculation directed by s 151Z(2)(d) of the Workers Compensation Act 1987 where, as here, both the employer and a non-employer are liable in damages for injury sustained by a worker, the worker sues the non-employer (but not the employer) and that non-employer claims contribution from the employer. 140In the discussion that follows, references to "Division 3" are references to Division 3 of Part 5 of the Workers Compensation Act; and references to "Part 7" are references to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. 141As both Basten JA and Macfarlan JA point out, the question of the amount of damages that the worker would have been entitled to recover from the employer is a hypothetical question. This is because the employer has not been sued. In Goodman Fielder Ltd v Hickson [2008] NSWCA 69 at [24], Giles JA noted that "s 151Z(2) requires a trial within a trial of the damages which the worker could have recovered from the employer". It is this "trial within a trial" that proceeds on the hypothetical basis. 142The hypothetical nature of the inquiry was referred to by Campbell JA in J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 at [40]: "While s 151Z(2)(d) requires the contribution that it talks about to be calculated 'as if the whole of the damages were assessed in accordance with the provisions of Division 3', it does not require that any of the damages involved in the calculation actually be assessed in accordance with the provisions of Division 3." 143The hypothesis directed by s 151Z(2)(d) is not that the worker is suing his employer for damages or that the employer is liable in damages. For the limited and specific purpose of calculating the contribution recoverable by the non-employer from the employer, it is to be assumed that damages are being assessed "in accordance with provisions of Division 3 as to the award of damages". A necessary part of that assumption is that all things have happened necessary to permit the making of an assessment of damages in accordance with Division 3. 144The first provision within Division 3 is s 151E. It causes Division 3 to have direct application to an award of damages in respect of an injury to a worker caused by the negligence or other tort of the worker's employer. Had there been contested proceedings in which the worker sued the employer for damages, s 151H(4) (which is also within Division 3) would have required that the degree of permanent impairment (a matter made relevant by s 151H(1)) be "assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act". A medical assessment under Part 7 would accordingly have been necessary for the purposes of such contested proceedings; and provisions in Part 7 about submitting to medical examination would have been relevant. 145When the contribution to which the non-employer is entitled from the employer under s 151Z(2)(d) is being calculated, no such medical assessment can in fact be undertaken under Part 7. Essential pre-conditions to the operation of the provisions in Part 7 are not satisfied and cannot be satisfied. There is no "claim" as defined by s 4(1) because the worker is not, as a matter of fact, claiming workers compensation or "work injury damages" as defined by s 250(1) (that is, damages "recoverable from" the employer for certain matters); and, because there is no "claim", there is no "claimant" as defined by s 4(1). There is no "medical dispute", as defined by s 319, because there is no "dispute between a claimant and the person on whom a claim is made". 146It follows that when, in the course of the "trial within a trial" required by s 151Z((2)(d), the court considers the 15% impairment threshold with which s 151H is concerned and, in doing so, gives effect to the several directions in s 151H itself, it must proceed without a Part 7 medical assessment and therefore without the assistance of the conclusive presumptions that such an assessment creates through s 326 of the 1998 Act. 147But it does not follow that the court will ignore Part 7. On the contrary, it will pay close attention to Part 7 and, in obedience to s 151H(4), give effect to the Part 7 principles concerning quantification, even though the Part 7 quantification mechanisms are not available. The court must thus, for example, pay attention to the Part 7 provision (s 322(1)) that requires assessment of the degree of permanent impairment to be made in accordance with the WorkCover Guidelines. It will have regard to those guidelines in deciding whether, in the "trial within a trial" of hypothetical proceedings between worker and employer in which there was a Part 7 medical assessment, the necessary minimum 15% impairment would have been proved on the balance of probabilities. 148The s 151Z(2)(d) task is of the kind referred to by Bryson JA in Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; (2006) 67 NSWLR 517 in the passage quoted by Macfarlan JA at [120]. Although the court must calculate, for an alternative purpose, an amount the method of calculating which for a primary purpose is stated in the statute, the court is not given for the alternative purpose machinery that it is required to use when making a calculation for the primary purpose. But unavailability, for the alternative purpose, of the machinery that it would be necessary to use in making a calculation for the primary purpose does not mean that the court is unable to make a calculation for the alternative purpose. It means that the court must do the best it can without the assistance of the particular machinery.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2012

Suitors' Fund Act 1951(NSW)

Motor Accidents Amendment Act 1995(NSW)

ty Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Act 1988 Motor Accidents Amendment Act 1995 (NSW) Motor Accidents Compensation Act 1999 Road Transport (General) Act 1999 Suitors' Fund Act 1951 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 AMP General Insurance v Brett (1998) 27 MVR 492 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 Firth v Sutton [2010] NSWCA 90 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; (2005) Aust Torts Rep 81-814 Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516 Goodman Fielder Ltd v Hickson [2008] NSWCA 69 Grljak v Trivan Pty Ltd (In liq) (1994) 35 NSWLR 82 J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 Johnson v Perez [1988] HCA 64; 166 CLR 351 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; 230 FLR 336 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; 155 CLR 306 NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 State of New South Wales v Maxwell [2007] NSWCA 53 Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; 47 MVR 140 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Zerk v Finemores Tansport (Qld) Pty Ltd [1994] SASC 4531; 62 SASR 333 Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111 Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193 Category: Principal judgment Parties: Rod Izzard (First Appellant) RBI Haulage Pty Ltd (Second Appellant) Dunbier Marine Products (NSW) Pty Ltd (First Respondent) Matthew Buckley (Second Respondent) Transport Accident Commission of Victoria (Third Respondent) Representation: Counsel: P M Morris SC/C Purdy (Appellants) S G Campbell SC/P A Rickard (First Respondent) M McAuley (Second Respondent) J Turnbull (Third Respondent) Solicitors: Moray & Agnew (Appellants) Goldbergs Lawyers (First Respondent) Everett Evans Solicitors (Second Respondent) Holman Webb (Third Respondent) File Number(s): CA 2011/115462 Decision under appeal Citation: Matthew Buckley v Rod Izzard & Ors Date of Decision: 2011-04-01 00:00:00 Before: Delaney DCJ File Number(s): DC 2008/321951

Whether accident a "motor accident" 14The appellants asserted that the injuries suffered by the plaintiff occurred in the course of a motor accident, to which their compulsory third party policy responded. The answer to that question, it was accepted by all parties, depended on the operation of the Motor Accidents Compensation Act as in force at the date of the accident, namely 20 July 2005. The Act has since been amended in significant respects. 15The insurance under a third party policy covered the owner and driver of the motor vehicle "against liability in respect of ... injury to a person caused by the fault of the owner or driver of the vehicle ... in the use or operation of the vehicle": s 10. The term "motor vehicle" was defined to mean "a motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999", since repealed ("the Road Transport Act"). The trailer was not a "motor vehicle" because that phrase was defined to mean a vehicle "that is built to be propelled by a motor that forms part of the vehicle": Road Transport Act s 3(1). It was however a "trailer" which was defined to mean "a vehicle that is built to be towed, or is towed, by a motor vehicle". As explained below by Macfarlan JA, the defect in the present case was said to reside in the trailer and particularly in the large movable bracket which was used to hold the load in place during transport. 16The term "injury" was, at the relevant time, defined in the Motor Accidents Compensation Act, s 3 in the following terms: "injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle ...." 17As the cases explain, the definition of "injury" may operate differentially depending on whether the injury is a result of driving, a collision, or the vehicle running out of control, on the one hand or, on the other, a defect in the vehicle within par (iv): see, generally, Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111. 18The emphatic language of the definition requires that the injury must be caused "in the use or operation of" the vehicle. On one view, the relevant "fault" of the owner or driver must also be in the use or operation of the vehicle. However, as fault is defined to mean "negligence or any other tort", a purposive reading of the provision would include injuries caused by a defect in the vehicle if the defect were due to the fault of the owner or driver. It does not follow, however, that all injuries caused by defective vehicles will be "a result of" and "caused during" the use or operation of the vehicle. In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, the High Court considered whether an injury to a worker manually manoeuvring containers on the back of a truck suffered an "injury" for the purposes of the Act where the defect involved the unavailability of the mechanical unloading system with which the truck was fitted. The Court (McHugh, Gummow, Hayne, Callinan and Heydon JJ) unanimously held that the operative cause of the employee's injury was not the defect in the vehicle but the negligent system adopted by the employer for unloading the containers. Although there was a defect in the vehicle, the Court concluded that the defect merely gave rise to the occasion for the worker to use a different method for moving containers: at [95] (Gummow, Hayne and Heydon JJ). The plurality held that the language of the definition and in particular "the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances": at [102]. 19In reaching the same conclusion, McHugh J referred to cases which had arisen prior to the introduction of the definition in force in 2005 by the Motor Accidents Amendment Act 1995 (NSW). The earlier cases treated the use or operation of the vehicle as covering the loading and unloading of the vehicle, so that the adoption by an employer of an unsafe system of work in that regard could be described as constituting the fault of the owner in the use or operation of the vehicle: at [27]-[29]. McHugh J continued at [30]: "The amendments effected by the 1995 Act do not result in the Act automatically excluding acts of loading and unloading a vehicle from the concept of 'use or operation' of the vehicle. The Act restricts the circumstances in which the Act governs an injury sustained during loading and unloading operations (the injury must be 'a result of and is caused during ... such use or operation by a defect in the vehicle'). However, the Act neither expressly nor inferentially excludes all loading and unloading activities from the expression 'use or operation' of the vehicle. Its application is governed by the cause of the injury, but not by the activity in which the person injured was engaged when the injury was sustained." At [47]-[52], McHugh J added: "However, the amendments bring about the result that the Act does not apply to injuries sustained during loading and unloading operations where there is no defect in the vehicle." 20Callinan J was of the opinion (not shared by other members of the court) that the word "such" in par (iv) of the definition referred back to pars (i)-(iii), thus contemplating that the vehicle was being driving or was running out of control, in circumstances in which the driver had not been at fault: at [133]. The majority held that the word "such" referred back to the phrase "use or operation" in the chapeau, which words were repeated for emphasis in par (iv). (The approach of Callinan J appears to be close to that adopted by the current version of the Act, following an amendment made in 2006: how the amendment applies in relation to trailers need not be considered in this case.) 21In determining whether a vehicle is defective, it is appropriate to consider its fitness for its intended use: Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193 at [68] (Spigelman CJ) in a passage approved in Allianz at [32] (by McHugh J). In Zurich, the worker was injured whilst lifting a loading ramp which formed part of a trailer attached to a truck, unassisted by any hydraulic or any mechanical lifting mechanism. This was held to be a defect in the design of the vehicle. McHugh J distinguished Zurich from Allianz at [64]: "In both Zurich and the present case, the worker was instructed to do something which led to the worker being injured. In Zurich, however, the instruction was to use the vehicle for the purpose and in the manner for which it was intended. In the present case, Mr Oliver was instructed to use the vehicle in a manner other than its intended use. And he was instructed to use the vehicle in a way that did not involve the use of the defective part ...." 22The plurality also stated that they "would not be prepared to differ from the decision in Zurich": at [89], presumably referring to the result, rather than the point of statutory construction discussed in that and the preceding paragraph of the joint judgment. 23In Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; 47 MVR 140, this Court considered an injury caused when the drawbar of a trailer used to transport sullage fell onto the respondent's foot, crushing it. The Court held that the absence of a jockey wheel mounted on the drawbar of the trailer, allowing it to be coupled and uncoupled without requiring the use of a forklift and avoiding the risk that it might fall freely to the ground, was a defect in the trailer. If the injury had been caused by the absence of the jockey wheel, the claim fell within the scope of Act. If, on the other hand, the injury arose from the failure to adopt a safe system of work in the absence of a jockey wheel, arguably it fell outside the scope of the Act. Giles JA concluded at [32]: "The circumstances were different from those in Allianz .... In that case the employer directed an unsafe method of unloading containers without using the defective T-bar mechanism, and it was the unsafe method which brought the injury. The respondent was not injured through an equivalent unsafe method, for example using a forklift when it was unsafe to do so because of the risk that the drawbar would slip off the tines. The appellant had a trailer in which there was a defect, and when Mr Harper removed the pin the defect, the absence of a jockey wheel, meant that there was a risk that the drawbar would fall to the ground even without the tractor being driven away. The risk came home and the respondent was injured. The appellant used a piece of defective equipment and, because of the defect, the respondent was injured." 24In the circumstances of the present case, I agree with Macfarlan JA that the upright brackets or frames on the trailer were insecure when the chains holding them in place were released, and the frames remained in an upright position. I agree that their design was negligent and that they constituted a defect in the trailer due to the fault of the owner. 25The next question is whether the injury occurred in the "use or operation" of the vehicle. The vehicle being a trailer designed to carry goods, and in particular boat trailers and parts, the loading and unloading of the trailer was an essential part of its use and operation. Although the trailer was not in motion at the time of the accident, the injury was caused during its use or operation by a defect in the trailer. That conclusion is consistent with the reasoning of this Court in Zurich and Walfertan and with the distinction between a defect causing injury and one leading to the adoption of an alternative negligently devised system of work not involving the defective mechanism, accepted in Allianz. Accordingly, it was an injury within the meaning of the Motor Accidents Compensation Act.

Calculation of contribution 26I agree with Macfarlan JA that the employer was negligent in failing to play its part in either requiring the appellants to vary the design of their vehicle to remove the defect, or to instruct its employees not to climb onto the trailer. I also agree with the attribution of responsibility, after reduction for contributory negligence, of 60% to the appellants and 40% to the employer. There remains an issue as to the manner of calculating the deduction from the damages payable by the appellants, having regard to the liability of the employer. 27Because the Workers Compensation Act 1987 (NSW), Part 5, Div 3, limits the damages which can be recovered from an employer on a claim for a work injury, the damages assessed against a third party tortfeasor under the general law will generally be greater than those assessed as against the employer. The disparity gives rise to an issue of principle when the damages are apportioned, having been calculated on different bases. Where the injured worker brings a claim against a third party tortfeasor, which in turn seeks contribution from the employer determined at, say, 30% of the loss payable by it, assessed under general law principles, the employer will lose, in part, the protection given by the Workers Compensation Act. If, on the other hand, the third party tortfeasor recovers 30% of the damages, as assessed against the employer, it will lose the full benefit of its entitlement to contribution. The policy of the Act is that "the burden of the reduction that it makes in the amount of contribution recoverable should fall on the worker, not on the non-employer wrongdoer": J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 at [38] (Campbell JA). 28A further difficulty arises where, as in this case, the plaintiff has not brought proceedings against his or her employer. The worker, not being entitled to recover and retain both workers compensation and work injury damages, must choose the appropriate remedy. The limits on the recovery of work injury damages, combined with the benefits which may flow from continued entitlement to workers compensation, especially in circumstances where the long term effects of an injury are unpredictable, not infrequently leads a worker not to sue the employer. In that circumstance, the question is how the hypothetical assessment of the liability of the employer is to be undertaken. 29The calculation required by s 151Z(2) of the Workers Compensation Act (set out by Macfarlan JA at [112] below) is based on a finding that the employer was liable, proportionately, for the accident. On that assumption, the employer's financial liability needs to be assessed. The damages recoverable by the plaintiff have already been assessed under the general law, as modified by the Civil Liability Act. As a proportion of those damages, the employer would be liable to pay the appellants approximately $263,000, being 40% of the damages assessed as payable by the appellants, after reduction for contributory negligence. 30However, the damages payable by the employer would be assessed as work injury damages, in accordance with Pt 5, Div 3 of the Workers Compensation Act. Under that statutory regime, no damages may be awarded unless the injury resulted in "a degree of permanent impairment of the injured worker that is at least 15%": s 151H(1). If the plaintiff cannot satisfy that threshold, the damages recoverable from the employer would have been nil. In such a case, for the purposes of s 151Z(2)(d), the amount of the contribution that the appellants would be entitled to recover from the employer, determined as if the whole of the damages were assessed in accordance with Pt 5, Div 3, would be nil, because no damages would be recoverable under those provisions. It follows that, for the purposes of s 151Z(2)(c), the amount of the contribution which the appellants would be able to recover, but for Pt 5, from the employer would exceed the amount actually recoverable by the full amount of $236,000. Accordingly, the damages recoverable by the plaintiff from the appellants would necessarily be reduced by that amount. 31If, however, the plaintiff does satisfy the threshold test, and the assessment of his damages, calculated under Pt 5, Div 3 of the Workers Compensation Act, is less than the amount assessed under the general law, he will suffer some diminution of the damages recoverable from the appellants, but they will be able to recover 40% of the diminished damages from the employer. 32The consequence of this analysis is relevant to what follows for the future conduct of these proceedings, from the conclusion that the employer was liable for the injury. That question will be addressed below. There are, however, two antecedent questions which affect the position of the appellants. 33First, the assumption underlying the analysis set out above is that the provisions of s 151Z(2) apply to a case where the employer is not in fact liable to pay work injury damages, because the threshold is not satisfied. Subsection (2) is conditioned upon the satisfaction of two elements, each of which contains two limbs. The first is that the worker takes proceedings to recover damages from the third party tortfeasor: sub-s (2)(a). That happened in this case. The second element is that the worker also takes "or is entitled to take" proceedings to recover damages from his employer: sub-s (2)(b). The plaintiff did not take such proceedings and, for sub-s (2) to operate, he must be a person who was "entitled to take" such proceedings. A finding of liability on the part of the employer demonstrates that the employer owed a duty, which it breached, causing loss to the plaintiff. The fact that no damages would be payable by the employer, if sued, is beside the point; the language of par (b) involves an entitlement "to take proceedings" not an entitlement "to recover damages". Accordingly, the preconditions to the engagement of sub-s (2) were satisfied. This construction of the section was adopted by this Court in Grljak v Trivan Pty Ltd (In liq) (1994) 35 NSWLR 82 at 88 (Mahoney JA, Kirby P and Priestley JA agreeing). 34Secondly, there is a question as to how the assessment of damages which would have been recoverable in the event that the plaintiff had brought proceedings against his employer, which he did not, should be assessed. In particular, there is an issue as to satisfaction of the threshold in s 151H, which requires that the degree of permanent impairment that results from an injury be assessed "as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act": s 151H(4). The 1998 Act is the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"). In its terms, Pt 7 only applies to claims for compensation or work injury damages. There was no such claim in the present case. The consequence of that fact for the hypothetical assessment required under s 151Z(2) has been considered in a number of cases in this Court. The conclusion reached is that the Court must make the assessment according the principles established by Pt 7, but without the benefits provided (and the constraints imposed) by the procedural mechanisms. Accordingly, the assessment of the degree of permanent impairment is to be made in accordance with the WorkCover Guidelines, as required by s 322 of the 1998 Act, but need not be made by an approved medical specialist appointed for the purpose under Pt 7. 35In dealing with statutory regimes, analogous circumstances may provide limited assistance. However, as reference is made elsewhere to the reasoning of this Court in Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516, it is desirable to identify the issues in that case. Mr Fuller was the driver of a motor vehicle which collided with a motorcycle driven by the injured worker (Mr Kearney). The respondent was Mr Kearney's employer. Each driver was held equally liable for the accident. No claims were made for damages, but Mr Kearney received workers compensation from his employer. The employer sought to recover such compensation from Mr Fuller, pursuant to the statutory indemnity conferred by s 151Z(1)(d) of the Workers Compensation Act. For that purpose, the limit of recovery was the amount of damages which would have been payable by Mr Fuller, had he been sued in tort. The trial judge in the indemnity proceedings was therefore required to assess those damages. She included an amount on account of non-economic loss in that assessment, being a head of damages not available in respect of a motor accident unless there had been a threshold assessment as to the degree of permanent impairment of the injured person of at least 10%: Motor Accidents Compensation Act, ss 131 and 132. The Court (Bryson JA, Handley JA agreeing and Ipp JA relevantly agreeing) held at [46] that the unavailability of the statutory machinery did not preclude the judge undertaking the relevant assessment. 36Bryson JA noted that the Court had been referred to Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; (2005) Aust Torts Rep 81-814, but found it of no assistance: at [44]. In Forstaff, McColl JA noted that the claimant had not undergone a medical assessment pursuant to s 322 of the Workplace Injury Act and noted counsel's submission that he could not be compelled to do so. She doubted whether that was correct: at [105]. For the reasons given by Macfarlan JA and Barrett JA, I agree that the machinery is not available for the purposes of the hypothetical exercise required by s 151Z(2)(d). Nevertheless, that fact does not preclude an assessment of the degree of permanent impairment being undertaken at trial in order to determine whether the threshold in s 151H is satisfied. 37A related issue arose in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; 230 FLR 336. In that case the injured worker, employed by the respondent, had been injured on the way to work by a bus owned by the appellant. The employer paid compensation to the injured worker and sought to recover the amount of the compensation from the appellant, pursuant to the statutory indemnity; as in Fuller, an assessment of damages was required to determine the limit of the recoverable amount. The defendant tortfeasor wished to have the injured worker examined for the purposes of the assessment of damages. It recognised that there was no mechanism available to require that result directly, but sought a stay of the Council's indemnity proceedings until the Council (as employer) took the necessary steps under s 119 to have the injured employee medically examined. For the purposes of a claim for worker's compensation, the employer to whom notice of an injury had been given, could require an injured worker to undergo a medical examination, by a doctor provided and paid by the employer: Workplace Injury Act, s 119(1). A worker who refused to undergo such an examination could suffer suspension of his or her weekly payments. The Court held that the procedural mechanism was not available in the indemnity proceedings but that the damages could be assessed without such assistance as might have been obtained from a medical examination of the injured worker. 38A consideration of the indemnity cases reveals the caution which must attend reasoning from analogous circumstances. In a claim for indemnity under s 151Z(1)(d), the employer has an interest in maximising the seriousness of the injury suffered and the damages which might have been awarded, in order to maximise its recovery of compensation payments. By contrast, in contribution proceedings under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and s 151Z(2), the employer will, on one view, have an interest in minimising the seriousness of the injury, so as to limit its contribution. On the other hand, it may also intend to recover compensation payments and therefore take a different stance. In contribution proceedings, the non-employer tortfeasor may have no interest in the sum of damages calculated for the purposes of the hypothetical claim against the employer. The plaintiff will, of course, have an interest in maximising the damages which would have been awarded against the employer, in order to minimise the gap between those damages and the damages otherwise recoverable from the non-employer tortfeasor. It is not necessary in this case to consider whether these considerations affect the burden of proof. 39Curiously, the appellants' defence to the plaintiff's claim, to which the employer was not a party, sought a reduction of damages under s 151Z(2), but the cross-claim, to which only the employer was joined, sought contribution but no assessment of the amount. Both the plaintiff and the employer had an interest in the assessment of the hypothetical work injury damages. Indeed, depending on the attitude of the employer to the recovery of compensation, the plaintiff may have been the only party with an interest in maximising the assessment of work injury damages. 40In State of New South Wales v Maxwell [2007] NSWCA 53 this Court reviewed an assessment of permanent impairment carried out by the trial judge in circumstances on all fours with the present case without adverse comment, although the process was not challenged by the appellant. 41I agree with the conclusion reached by Macfarlan JA that an assessment of work injury damages must in the circumstances be made by the trial judge for the purposes s 151Z(2), including the assessment required under s 151H, although the mechanism provided by Part 7, Div 7 of the Workplace Injury Act has not been invoked, for example, for the purpose of a compensation claim, and cannot be invoked for the purposes of these proceedings. I also agree with reasons of Barrett JA for the same conclusion.

Relevant principles 76In Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839, the appellant was injured whilst loading boxes onto a truck in the course of his employment. Without his knowledge, the hydraulic lifting platform by which he had ascended to the tray of the truck was lowered by another employee. The appellant was injured when he stepped back onto what he wrongly assumed was the lifting tray behind him. His employer was found to be in breach of its duty of care. 77The Court stated the applicable general principles as follows: "[12] ... An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work" (References omitted). 78The Court found that "the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him" was "plainly foreseeable" given that "the task was a repetitive one to be performed in a diminishing space" (at [13] - [15]). Yet there was no system in place to guard against this risk. The risk could have been "readily obviated by the respondent by the taking of simple measures" such as the fitting of a warning beeper to give notice that the lifting platform was being lowered, however none of these relatively simple measures was taken. The employer was accordingly found liable. 79These principles had been earlier applied by the High Court in Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 in relation to equipment owned and operated by an independent contractor of the employer. In that case the respondent's contractor dropped part of a crane that he was driving onto the respondent's employee after failing to check whether anyone was standing below the part. Mason J (with whose judgment Deane J agreed, and whose approach was consistent with that of the other members of the Court) reached the following conclusions in relation to the employer's liability: "In the result the respondent's duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work. The risk of injury from a falling rod or pin to an employee positioned under the crane during the extension procedure was slight, but nevertheless obvious. Avoidance of the risk called for the adoption of a procedure, even an instruction forbidding any employee assisting Clissold [an employee of the independent contractor] from taking up a position under the jib of the crane during the extension operation ... It was not a case in which the employer had placed his employee under the control of a third party in circumstances in which the employer ceased to have any power or opportunity to give directions as to the manner in which the work in question was to be undertaken. The employer's duty at common law to take reasonable care for the safety of his employee extends to giving him directions in the performance of his work where directions might reasonably be thought to be required to secure him from danger of injury" (reference omitted) (at 688 - 9). 80In Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 there was an issue as to whether an employer had breached its duty to an employee who was injured whilst unloading linen trolleys from a truck that he was driving in the course of his employment. The following was said in the plurality judgment in that case: "[54] ... [I]t has been said that "[a] system of working normally implies that the work consists of a series of similar or somewhat similar operations". The loading and unloading of linen trolleys from a delivery truck, pursuant to a contractual arrangement requiring regular repetition of that activity, clearly falls within these descriptions. As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable. This court's decision in Nicol demonstrates that an employer may be liable for breach of the duty notwithstanding that the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system. ... [57] ... To rely, as Andar does, on the circumstance that the trolleys had been in use by Brambles for many years previously is to ignore Andar's independent obligation to satisfy itself of the safety of the system. In any event, that a system has been in place for a significant period of time does not mean that an employer's obligations in respect of that system have been therefore complied with" (references omitted). 81Although an employer's duty to its employee differs from some other duties of care in that it is non-delegable and the standard of care for an employee's safety that is required to be achieved has been described as "not a low one" (Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 at 308), it nevertheless reflects the fundamental principles concerning duties of care stated in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48 and restated in s 5B of the Civil Liability Act 2002.

The existence of a foreseeable risk 82The first requirement (see s 5B(1)(a) Civil Liability Act) is the existence of a foreseeable risk of which the defendant knew or ought to have known. 83The primary judge's conclusion that Dunbier did not breach its duty of care was founded upon the view that Dunbier neither knew nor ought to have known of any relevant risk to Mr Buckley's safety (see Judgment [130] quoted in [75] above). 84Whether or not Dunbier was aware of it (a question to which I will come), there clearly was in fact a risk of injury posed by the frames to those involved in the unloading of Haulage's vehicles. The primary judge acknowledged this risk when dealing with the issue of Haulage's liability (see Judgment [118] quoted in [73] above; see also Judgment [110]). 85The frames were heavy and rested upon narrow bases. If pulled, pushed or knocked when unsecured they could easily topple onto someone causing the type of serious injury suffered by Mr Buckley (Transcript p 212). 86The risk of this occurring was not insignificant (see s 5B(1)(b) of the Civil Liability Act) as the frames were necessarily put in an unsecured state during unloading operations. 87Counsel for Dunbier contended on appeal that Haulage had in place a system that adequately dealt with this risk. He relied particularly upon the following evidence given by Mr Izzard: "Q. ... [A]s well as taking the trailers off the back of the truck, it was necessary to take the loose items off the back too? A. That's correct, yes. Q. And it was not uncommon to, certainly for you, to give a hand in getting the loose items off the truck? A. No, well that was my job, that was a part of the job, yeah, I had to be up there and one of the boys had to take them away from me, you know, like I'd hand them to them and they'd put them on a pallet or if they needed them on whatever, you know. Q. And on occasion, one of the boys would get on the back of the truck and give you hand? A. On occasion. ... Q. Did you want to say something else Mr Izzard? A. Well, it was under duress let's say, they'd hop on and give you a hand because it just wasn't, it wasn't something I was comfortable with. Q. The reason you weren't comfortable with it was because you knew that these racks in the unlocked position were unstable? A. Well that's not exactly right, because of the fact, when we were down to picking the stuff up, in a normal situation those racks would be locked. It was just the fact is you still need somebody on the ground. If two was up there, there's only usually two of us in the yard, there wasn't much point, that being two was on the top and then you can't throw a tyre off, a boat tyre off onto the ground (Transcript p 216). 88Even if the "normal situation" to which Mr Izzard referred could be characterised as a system, it was far from adequate, not least because there remained a period during the loading operations when the frames were unsecured. This occurred because it was not possible for someone on the trailer to secure the frames. It was necessary for that to be done by a person standing on the ground (Transcript p 38). 89It appears that as a matter of practice it was Mr Izzard who undertook the task of re-securing the frames (Judgment p 36 at [122]). In his evidence Mr Izzard appeared to suggest that normally the frames would be re-secured after they had been moved to facilitate unloading but before the actual unloading commenced (see his words "when we were down to picking the stuff up" quoted in [87] above). However, as this would have involved Mr Izzard alighting from the vehicle after moving the frames, securing the frames whilst standing on the ground and finally remounting the trailer to commence the unloading, there was a risk that it would not occur on every occasion and that unloading would proceed before the frames were re-secured. Indeed, Mr Tucker gave evidence that although there was "nothing stopping [the frames] from being locked off ... it just wasn't practised" (Transcript p 68). As evident from Mr Buckley's injury, a failure to lock the frames placed Dunbier employees at the risk of significant harm. It appears from Mr Izzard's evidence quoted in [66] above (particularly the words "well the last part has got taken off") that the frames had not been re-secured before the unloading that preceded Mr Buckley's injury occurred. 90Dunbier was aware that its employees helped Mr Izzard to unload Haulage's vehicles. The unloading occurred not at a remote location, but at Dunbier's own premises, of which Mr Buckley was the manager. As in Kondis (see [79] above), this "was not a case in which the employer had placed his employee under the control of a third party ... [and] ceased to have any power or opportunity to give directions as to the manner in which the work in question was to be undertaken". To the contrary, while the unloading was occurring on its premises, Dunbier was perfectly capable of "taking reasonable steps to protect [Mr Buckley] from injury and to that end of prescribing and insisting on a safe system of work" (Kondis at 689). 91Even if Mr Buckley had not been familiar with what was involved (and it appears that he in fact was), Dunbier, through Mr Buckley, had an obligation to obtain that knowledge from employees who possessed it, notably Mr Tucker and Mr Nair. The slightest consideration on Dunbier's part would have revealed that the unloading operations required the heavy metal frames to be unlocked and left, at least for a short period of time, in a state in which a mere push, pull or knock would topple them over, quite possibly onto a Dunbier employee. It should also have revealed that there had been at least two earlier incidents when frames had toppled over (see [69] above). 92The primary judge said that Dunbier "did not know of any specific risk involving the use of the perimeter frames" (Judgment [130] quoted in [75] above) but the knowledge of the risk that I have just described was sufficient to require a response from Dunbier. The weight and instability of the perimeter frames would have been capable of observation by Dunbier staff given the frequency with which unloading occurred on Dunbier's premises ("at least twice a week, once a week" (Transcript p 78)) and its continuation for "two and a half or three years before the accident" (Judgment at [52]). 93The primary judge also said that there was "no evidence that getting on or off the deck of a trailer was dangerous" but the real question was whether the presence of heavy, unsecured frames posed a risk of injury to Dunbier employees involved in the unloading operations. These operations involved employees mounting and dismounting from the deck of the trailer. Using a frame as a hand-hold to dismount was one of the many ways in which a limited amount of force applied to a frame in the course of unloading might cause it to topple over. There was no need for Dunbier to have had foresight of the specific way in which the accident occurred, provided that it had, or should have had, foresight of the fact that there were numerous means by which a frame of such height and weight might be caused to fall on one of its employees during the unloading process (see Transcript p 180). 94Moreover, an employer discharging its duty to take reasonable care to avoid exposing its employee to an unnecessary risk of injury "is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task" (Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873). Accordingly, the fact that Mr Buckley's injuries were suffered whilst he was using a perimeter frame for a purpose for which it was not intended (to support his dismount from the trailer) does not mean that they were not caused by Dunbier's breach of its duty to provide a safe system of work in which the risk of such misjudgment is adequately accounted for. In other words, Mr Buckley's actions were "more apposite to the issue of contributory negligence than to the issue of negligence itself" (ibid at 873). 95As stated by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; 155 CLR 306 at 311 - 12, "It is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others ... The possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury".

APPORTIONMENT OF RESPONSIBILITY FOR MR BUCKLEY'S INJURIES 102Both Mr Izzard and Haulage's defences to Mr Buckley's claim and their cross-claim against Dunbier require consideration of how responsibility for Mr Buckley's injuries should be apportioned between Mr Izzard and Haulage on the one hand and Dunbier on the other. 103Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946, which is concerned with contribution between joint and several tortfeasors, stipulates that "the contribution recoverable from [a joint tortfeasor] shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage" (see subsection (2)). 104The principles enunciated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 in the context of contributory negligence are a guide to the appropriate approach in the present context. Under these principles the making of a relevant apportionment: " ... involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination" (at 494). 105As the primary judge did not find Dunbier negligent, there was no occasion for him to apportion responsibility for Mr Buckley's injuries. On appeal the parties concerned with the issue agreed that it was appropriate that this Court proceed to apportion responsibility if it concluded that Dunbier was negligent as well as Mr Izzard and Haulage. 106On the primary judge's unchallenged findings, there was a substantial degree of departure by Mr Izzard (and, vicariously, Haulage) from the standard that would be expected of a reasonable person in his position. This is demonstrated by the findings of the primary judge quoted in [73] above and by the following additional observations made by his Honour after referring to the earlier incident involving Mr Tucker: "116. It appears that, notwithstanding this event and the slight injury caused to Mr Tucker, Mr Izzard took no steps to avoid the risk of injury that existed where an employee might pull instead of pushing the frame. He did not issue any warnings to Dunbier employees or discuss the matter with the plaintiff who was the manager of Dunbier's yard. He allowed them to work on the truck in ignorance of the risk of injury of which he was well aware. He should have had the foresight, as stated in Mr Wingrove's report, to lock the frames when not in use. He should have told the plaintiff the employees should be aware that the frames could topple if pulled so that the plaintiff could have told his employees to be careful. Mr Izzard's warning to Mr Nair was not adequate to discharge his duty to warn Dunbier's employees or indeed Mr Nair himself of the risk posed to them by pulling the frames instead of pushing them". 107Furthermore the causative potency of Mr Izzard's negligence was great. He was the person in charge of the vehicle and its unloading. If he had acted earlier to modify the frames to reduce or eliminate the risk that they presented when they were unsecured, Mr Buckley's accident would not have occurred. 108Dunbier's departure from the requisite standard of care was also significant. Through the involvement of its employees over a period of years in the unloading operations, it was, or should have been, cognisant of the dangerous situation that existed when the frames were unsecured. Yet it took no steps to ensure the safety of its employees. Dunbier, along with Mr Izzard and Haulage, was well able to take steps to prevent an accident such as that which occurred to Mr Buckley. 109As noted earlier, Mr Buckley's accident did not occur at a location removed from his employer's business premises, as often occurs in relation to labour hire companies. The activities that led to the accident were occurring "at least twice a week" at those business premises themselves (Transcript p 78). 110I do not consider that there is a great deal of difference between the responsibilities for Mr Buckley's injuries of Mr Izzard and Haulage on the one hand and Dunbier on the other. However, as the dangerous frames formed part of Haulage's vehicle and Mr Izzard had control of the use of those frames, I would apportion 60 per cent responsibility to Mr Izzard and Haulage and 40 per cent to Dunbier.

Izzard v Dunbier Marine Products

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