The reference to Part 5 is a reference to Part 5 of the W orker's Compensation Act under which common law damages recoverable by a worker from an employer are limited in amount.
60 The quantification of the process required by para (c) is then provided for in para (d). Cole J explained:
"Subsection (2)(d) then addresses the amount of the contribution which is recoverable from the employer, whether as a joint tortfeasor or otherwise. The amount entitled to be recovered is to be determined as if the whole of the worker's common law damages were assessed in accordance with the provisions of Division 3 [of Part 5]. Subsection (2)(d), in addressing the amount that the third party 'is entitled to recover' from the employer, is not addressing the first integer in subsection (2)(c), namely, the amount of the contribution which the third party 'would (but for this Part) be entitled to recover from the employer', whether as joint tortfeasor or otherwise. Accordingly, one must assess the amount of contribution which, absent Part 5, the third party would have been entitled to recover from the employer, and deduct from that sum the amount which is in fact recoverable upon the basis that damages are assessed, not on a basis absent Part 5, but upon the basis that the contribution recoverable is calculated by reference to damages assessed in accordance with Part 5, and in particular Division 3."
61 When this explanation is coupled with Allen J's explanation in Leonard v Smith as to the operation of the section, to which I have referred at para 54 above, it seems to me that the section is directed to a notional situation based upon the responsibility the employer and non employer tortfeasor has respectively for the accident. It is not directed to a calculation of a plaintiff's damages by taking into account fortuitous circumstances, whereby a relationship between the tortfeasors, not connected with the tortious or related conduct of each, such as here, may affect the issue of contracts between the parties under, for example, the Law Reform (Miscellaneous Provisions) Act or a contract of indemnity between them.
62 If I am correct in this view the appellant is entitled to have the amount of damages he is liable to pay calculated in accordance with the section. The trial judge did not enter upon this task. Both parties indicated that if the appellant's construction of the section is accepted, this Court should assess the percentage contribution the appellant would be entitled to recover from the employer.
63 Each party argued for a greater or lesser percentage depending upon which was the more favourable to him. In the appellant's case in particular, it was submitted that Advance, having breached its non-delegable duty of care to the respondent bore by far the greater responsibility for the accident. For his part the respondent relied upon the same arguments which, he said, would have resulted in Advance's liability being assessed at nil.
64 In my opinion the contribution should be assessed at 50%. Advance had a non-delegable duty of care to the respondent. It commenced its business operations in these premises before they were completely safe. It, in effect, required its employees to bear the consequences of this by subjecting them to an unsafe place of work and an unsafe system of work. The appellant, for its part, had a contractual obligation directed specifically to the state of the door which caused the respondent's injury. It not only breached that contractual obligation. It ignored it for months. I cannot, in those circumstances see that either was more or less responsible than the other.
65 The respondent raised a quite separate argument namely that s 151Z(2) did not apply as the respondent had ceased to be entitled to take proceedings independently of the Act against the employer Advance when he elected under the then s 151A of the Act to claim permanent loss compensation. Mr Hislop submitted that, because of the election which the respondent had made, and because of s 151D(2) of the Act (which is a limitation provision), he was not entitled to take proceedings independently of the Act to recover damages from Advance. Therefore, he submitted, s151Z(2) did not apply.
66 A very similar submission put by Mr Hislop was rejected in State Rail Authority of New South Wales v Barnes [2001] NSWCA 133, where Rolfe AJA, with whom Heydon JA and Davies AJA agreed, said:
"53. Mr Hislop's submission was that as the respondent could not have recovered any damages from Bathurst Glass because of the election, his Honour should have made no deduction from $116,657.90 and that that amount should have been deducted from $466,631.98 giving $349,974.08 from which the workers compensation payments should have been deducted to arrive at a judgment figure of $164,847.56. Mr Capelin submitted that his Honour had approached the matter properly and, as I have indicated, I agree with that submission.
54. The starting point is Mr Hislop's concession that the conditions required by sub-section (2)(a) and (b) had been met. His submission was that while the respondent was entitled to take proceedings against Bathurst Glass the amount of damages would have been nil because of his election. It was not argued that because that was the amount of damages proceedings could not be taken and hence no challenge was made to this Court's decision in Grljak v Trivan Pty Limited (1994) 35 NSWLR 82. Once those conditions were met sub-sections (c) and (d), relevantly for present purposes, operated.
…
56. Sub-section (d) prescribes that the amount of the contribution recoverable from Bathurst Glass as a joint tortfeasor 'or otherwise' is to be determined notionally 'as if the whole of the damages were assessed in accordance with the provisions of Division 3 as to the award of damages'. Of course, there may be cases where no such damages can be assessed because the requirements of the Act entitling an injured employee to damages have not been met. But it was conceded that that is not this case. Accordingly, his Honour made the notional assessment and thus, conformably with the Act, he reduced the amount of damages by deducting the second amount referred to in sub-section (c) from the first with the consequences to which I have referred.
57. In my opinion, Mr Hislop's submissions are inconsistent with the words of s 151Z(2) and with the provisions in s 151Z(1), which make clear that it matters not, at least for the purposes of the relevant sections, whether compensation or damages are recovered first. This makes the more explicable the finding of a notional figure under sub-section (d) to make the financial adjustment required by sub-section (c)."
67 To like effect is the judgment of Mahoney JA, with whom Kirby P and Priestley JA agreed, in Grljak v Trivan Pty Limited (In Liq) (1994) 35 NSWLR 82, where his Honour said at 88:
"It was then submitted that Mr Grljak was not 'entitled to take proceedings' to recover damages from Gawa because, as the event showed, the result of such a proceedings would be that no damages would be recovered. I do not think that this is the intended operation of par (b). The test which in this regard par (b) applies is 'entitlement'. The entitlement is entitlement 'to take proceedings' not 'to recover damages'. It looks, I think, to the existence of what conventionally is described as a cause of action rather than to whether the enforcement of that cause of action will result in an award of damages. I am conscious that, in principle, a right of action in negligence or for breach of statutory duty involves the proof not merely of duty and breach of duty, but also of loss by the plaintiff. I do not think that it was the intention of the 1989 amendments to alter the nature of a proceeding of this kind at common law. The purpose and effect of the 1989 amendments was to change and, in many respects, to limit the damages which could be awarded and the way in which they were to be quantified. But that, in the relevant sense, does not go to the 'entitlement' to bring the proceeding; it goes rather to the quantum of the damages which (if any) may be recoverable. Accordingly, the fact that, in the proceeding to recover damages, the assessments made by the trial judge are such that, in the event, no damages are awarded does not mean that, within par (b), the worker was not 'entitled to take proceedings … to recover damages from' the employer."