Nau v Kemp & Associates

Construction of section 5 of the 1946 Act 17 Within 10 years of its enactment, s 5 of the 1946 Act was described as "a piece of law reform which seems itself to call somewhat urgently for reform", which "has not yielded any clear answer to those who have sought in its terms solutions of the not inconsiderable number of problems that arise from its operation": Bitumen & Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 (at 211 - 212) per Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ; see also Baxter (at [71] - [72]) per Kirby J. 18 Regrettably the plea for law reform was not taken up by the legislature. In James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 (a case concerning s 5(1)(c)), Gaudron and Gummow JJ said (at [7]) that the 1946 Act had become notorious for the conceptual and practical difficulties it engendered and was an example of the need to keep measures of law reform under legislative review for defects and inadequacies exposed from time to time by the actual operation of such measures. 19 The difficulties in construction to which s 5(1) gives rise have been attributed to the drafter's use of a technique criticised as seeking to make the provision perform a double function: to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them: see James Hardie (at [22]) per Gaudron and Gummow JJ, citing Dixon J, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 (at 165 - 166). 20 Comparatively early in the history of s 6(1) of the 1935 Act, Lord Reid was not prepared to make any assumption that the language of the comparable English provision had been used accurately, nor, having regard to the "defective drafting of other parts of the subsection", was he prepared to "rely on any inference from the form of drafting of subsection (1)(a)" when construing subsection (1)(c): George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 (at 188). His Lordship's remarks were endorsed by the Judicial Committee of the Privy Council in Wah Tat Bank Ltd v Chan [1975] AC 507 (at 517). Drawing on Lord Reid's observations, Salmon LJ later held that in considering s 6(1)(c), if (as Lord Reid held in George Wimpey) the word "liable" could "have a different meaning in two paragraphs of the same subsection, [he could] find no overwhelming reason why it should not have a different meaning in the same paragraph of the subsection": Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 (at 658). 21 Notwithstanding judicial gloom about the construction of s 5(1), the task of construing s 5(1)(b) must begin with a consideration of its text, which, if clear, as the High Court has recently said, cannot be displaced by historical considerations and extrinsic materials: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ. At the same time, the Court cannot lose sight of the statutory direction to prefer a construction that would promote the underlying purpose or object of s 5(1)(b): Interpretation Act 1987 (NSW), s 33. As will be recalled, the literal meaning of a provision may "wear a very different appearance" in the light of the context, the mischief which the statute was designed to overcome and the objects of the legislation: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ; see also Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 (at [11]) per McHugh A-CJ, Gummow and Hayne JJ. 22 Section 5(1)(b) must also be construed as far as possible so that it is consistent with the language and purpose of all the provisions of the statute and on the prima facie basis that its provisions are intended to give effect to harmonious goals. Conflict which "appears to arise from the language of particular provisions…must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69], [70]) per McHugh, Gummow, Kirby and Hayne JJ. In applying this approach to s 5(1)(b), the Court should not lose sight of the criticism that judicial decisions concerning s 5, "calculated to remove one anomaly by an apparent beneficent construction of the legislation have given rise to other anomalies": James Hardie (at [7]) per Gaudron and Gummow JJ. 23 In construing the 1946 Act it is also necessary to recognise that a statute should not be construed as "overthrow[ing] fundamental principles, infring[ing] rights or depart[ing] from the general system of law" unless it does so with "irresistible clearness": Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 (at 304) per O'Connor J; the presumption is an aspect of the rule of law: Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 (at [21]) per Gleeson CJ; cited with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (at [15]) per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. That principle is an aid in achieving the fundamental object of statutory construction, namely: "[T]he ascertainment of the legislative intention by reference to considerations including the existing state of the law, other statutes in pari materia, and the mischief which one may discern the statute was intended to remedy…[including]… the need for unmistakable and unambiguous language to interfere with important principles of government and of the rule of law. " (emphasis added)

Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 (at 613) per Gummow J; see also Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (at [51]) per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.)

Submissions 24 The parties' competing contentions tended to focus upon different parts of s 5(1)(b), rather than looking at it as a whole. 25 The appellant's essential point on statutory construction was that the conclusion that a consent judgment satisfied s 5(1)(b) would confound the underlying policy of the common law to encourage settlement: Baxter (at [75]) per Kirby J. However she also embraced the proposition that the words "damages awarded" in s 5(1)(b) pointed to the "judgment first given" having to be the product of a judicial determination on the merits. 26 The respondents submitted, in substance, that s 5(1)(b) was satisfied because the 2007 judgment was a judgment first given in an action by way of damages.

The text of s 5(1) 27 A literal construction of s 5(1)(b) favours the appellant in some respects. 28 First, as Campbell JA (at [204] - [218]) and Sackville AJA (at [258] - [262]) have explained, prima facie (subject to displacement arising from considerations of context, history or policy) the better view is that the expression "damages awarded by … judgment" in s 5(1)(b) refers to damages awarded by a court, not agreed by way of a settlement of an action. 29 Secondly, the proposition that "judgment first given" in s 5(1)(b) refers to a judgment given by a court derives some support from s 5(3)(b) which contemplates that a "judgment first given" for the purposes of s 5 may be reversed on appeal. That language is generally inapposite to refer to a consent judgment. The general rule is that once a consent judgment is perfected it can only be set aside in a fresh action brought for that purpose: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 (at 242 - 244); In the Marriage of Harris & Caladine [1991] HCA 9; (1991) 172 CLR 84 (at 104) per Brennan J; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 (at 696 - 697) per Handley JA (Mahoney and Clarke JJA agreeing). The Court of Appeal has an exceptional jurisdiction to entertain by leave an appeal from a consent judgment or order: Supreme Court Act 1970, s 101(2)(c); District Court Act, s 127(2)(e), enabling it, for example, to entertain by leave an appeal from a consent judgment or order which was beyond the court's jurisdiction to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 (at 163) per Gibbs CJ, Stephen, Mason and Wilson JJ; or, again by leave, an appeal in the exceptional circumstances discussed in Paino v Hofbauer (1988) 13 NSWLR 193. However the limited circumstances in which such a power might be exercised supports the proposition that "a judgment first given" in s 5(1)(b) must be one given after a judicial determination on the merits. 30 Thirdly, insofar as it might be contended a subsequent action is an abuse of process, s 5(1)(b) does not bar proceedings, rather, s 5(1)(b) limits recoverability: Baxter (at [29]) per Gleeson CJ and Callinan J; Bracks (at [150]). 31 However these observations, like the parties' submissions, relate only to parts of s 5(1)(b). The construction of s 5(1)(b) cannot turn upon a consideration of the isolated expressions in the subsection nor on one subsection in isolation from the remainder of the provision. The text not leading to a clear construction, it is necessary to look at the context in which s 5(1)(b) appears, at the purpose of s 5(1) and, to that end, to have regard to its history which explains the mischief it was intended to address. This task involves, to some extent, deconstructing s 5(1)(b) to understand the nature of the critical elements, "tortfeasors liable", "judgment first given" and "damages awarded", and which element, if any, plays a controlling role in its construction and how those elements interact to achieve its purpose - an approach Campbell JA has aptly described as a "particular application of the concept of the hermeneutic circle": Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34 (at [22]).

The pre-1946 Act position 32 The mischief s 5 was intended to address is best understood by explaining the position at common law in Australia as between a plaintiff injured by a tort caused by joint or concurrent tortfeasors prior to the introduction of s 5(1) of the 1946 Act. The position, relevantly, was that:

(1) By virtue of the rule in Brinsmead v Harrison (1872) LR 7 CP 547 (see also King v Hoare (1844) 13 M & W 494; 153 ER 206), a person who suffered damage as a result of a joint tort had only one cause of action which merged in the first judgment recovered in respect of it, even where there was no satisfaction: Thompson (at 581) per Brennan CJ, Dawson and Toohey JJ.

(2) Where an action was brought against two or more joint tortfeasors only one judgment for one sum of damages could be given in favour of the plaintiff: Thompson (at 581) per Brennan CJ, Dawson and Toohey JJ; Baxter (at [20]) per Gleeson CJ and Callinan J.

(3) Because a plaintiff had only one cause of action against joint tortfeasors, an unqualified release of one joint tortfeasor released the others: Thompson (at 581 - 582) per Brennan CJ, Dawson and Toohey JJ; (at 608 - 611) per Gummow J; Baxter (at [26]) per Gleeson CJ and Callinan J.

(4) In contrast, a plaintiff had a separate cause of action against concurrent tortfeasors; accordingly entry of judgment in an action against one concurrent tortfeasor was no bar to a plaintiff pursuing actions against other concurrent tortfeasors. As Lord Diplock observed in Bryanston Finance Ltd v de Vries [1975] QB 703 (at 730): "[S]o long as the earlier judgment remained unsatisfied it was not a bar at common law to a subsequent action against any other of the [concurrent] tortfeasors nor did it affect the measure of damages that might be awarded in any subsequent action. So the person who sustained the damage could sue the independent tortfeasors seriatim in the hope of recovering a greater sum by way of damages than that awarded in the first action."

(5) The liability of several concurrent tortfeasors was solidary; although there was a separate cause of action against each they were liable in the same amount: Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203 (at [20]) per Giles JA (Beazley and McColl JJA agreeing).

(6) A plaintiff was entitled to separate judgments for the full amount against concurrent tortfeasors held to be liable whose wrong produced the same damage: Bracks (at [100]).

(7) A concurrent tortfeasor sued by a plaintiff who had already recovered damages from another concurrent tortfeasor could plead the defence of satisfaction which applied if "the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him": Jameson v Central Electricity Generating Board [1998] QB 323 (at 338) per Auld LJ; approved in Baxter (at [56]) per Gummow and Hayne JJ as applying in Australia to both joint and concurrent tortfeasors; see also Thompson (at 608) per Gummow J (Gaudron J agreeing).

(8) Procedurally, because several (concurrent) tortfeasors were severally liable on separate causes of action, they could not be joined as defendants in one action. That rule was overcome by s 2(1)(a) of the 1946 Act and procedural rules such as UCPR 6.19: Bracks (at [97], [99]). 33 The principle of satisfaction to which Lord Diplock referred in Bryanston is important. It was discussed in Baxter in which the High Court held that s 5(1)(b) did not apply to a case where a plaintiff brought one action against joint tortfeasors, settled against one, with judgment entered in their favour for the settlement sum, then sought to pursue the proceedings against the remaining joint tortfeasor. However the court also considered whether, aliter the statute, the remaining tortfeasor could resist the plaintiff's claim by invoking the defence of satisfaction, as explained by Auld LJ in Jameson (at 338) (see 32 above). It held he could not, because the documents effecting the settlement demonstrated the plaintiffs intended to pursue their action against the remaining tortfeasor and had not accepted the settlement sum in full satisfaction of their loss: (at [49]) per Gleeson CJ and Callinan JJ; (at [69]) per Gummow and Hayne JJ; (at [90]) per Kirby J.

The Law Reform (Married Women and Tortfeasors) Act 1935 (UK) 34 The 1935 Act, which led to the passing of the 1946 Act, addressed reforms recommended by the Law Revision Committee (Great Britain), Third Interim Report, Cmnd 4637 (1934) (the "Third Interim Report"). The Law Revision Committee was tasked with considering, inter alia, the common law doctrine that there could be no contribution between tortfeasors and "the liability of a husband for the torts of the wife" and "the liability of a married woman in tort and contract" (at [1]). The Third Interim Report addressed the contribution issue and what the Committee apparently perceived to be related issues. 35 The Law Revision Committee's Fourth Interim Report, Cmnd 4770 (1934) (at [23]), addressed the issue of a husband's liability for his wife's torts and, inter alia, recommended the abolition of the common law rule under which husbands were responsible for their wife's torts and also for her liabilities. The reforms proposed in both the Third and Fourth Interim Reports found their way into the 1935 Act - hence its name. 36 The Third Interim Report noted (at [3]) the anomaly of the common law rule against contribution (which the Committee (at [4]) traced to Lord Kenyon LCJ's judgment in Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337). The anomaly was that a plaintiff could recover the full amount of damage from one joint tortfeasor, but the latter had "to bear the whole loss and the other wrongdoers escape liability". In contrast, the Committee pointed out, rights of contribution generally existed in cases of breach of contract. After noting criticisms of the rule, judicially engrafted exceptions and distinctions and the statutory right of contribution created by s 37(3) of the Companies Act 1929 (19 & 20 Geo V c 23), the Committee concluded (at [7]) that the common law rule should be altered "as speedily as possible." 37 The Committee also referred (at [7]) to The Koursk [1924] P 140; (1924) Lloyd's Rep 228 as also showing that "where independent acts of negligence result in one injury, [i.e. a concurrent tort] the cause of action against each Defendant is separate and distinct; but there is no contribution between the Defendants." It concluded, "when two persons each contribute to the same damage suffered by a third, the one who pays more than his share should be entitled to recover contribution from the other." 38 Although the Third Interim Report was directed to addressing the issue of contribution, it went beyond its remit and considered matters not only related to rights of contribution between tortfeasors, but also a plaintiff's rights against joint tortfeasors. In this respect, it recommended (at [11]) the abolition of the rule in Brinsmead v Harrison. 39 In Bracks (at [103]) McColl JA (Allsop P agreeing) observed: "In explaining the desirability of abolishing the rule in Brinsmead v Harrison , the Law Revision Committee noted that the merits of the rule were said to be the prevention of a multiplicity of actions as well as the possibility that a second jury might award more damages than the first. The Committee suggested (at [11]) that the rule should be altered only in respect of unsatisfied judgments, 'with the provision that the plaintiff should not be able to obtain by execution, in the aggregate, more than the amount awarded in the first judgment'. " (emphasis added)

Paragraph 11 of the Third Interim Report continued: "The case of 'The Koursk' , referred to above, shows that the rule does not apply to the case of a judgment against one of several independent wrong-doers whose acts have caused the same damage, but only to judgments against one joint tort-feasor strictly so called…". 40 The Committee's concerns about a multiplicity of actions reflected Kelly CB's statement in Brinsmead v Harrison (at 551) that if the rule did not exist: "An unprincipled attorney might be found willing enough to bring an action against each and every of them, and so accumulate a vast amount of useless costs". 41 The Committee recommended (at point (I) of its Summary of Suggested Recommendations) that a: "judgment recovered against one or more persons in respect of an actionable wrong committed jointly, [should] not, while unsatisfied, be a bar to an action against any others liable jointly in respect of the same wrong".

This was to be subject to the proviso that: "…the Plaintiff shall not be entitled to levy execution for, or to be paid, a sum exceeding, in the aggregate, the amount of the first judgment obtained against any of the persons so liable, nor to recover the costs of any subsequent action, unless the Judge before whom it is tried is of the opinion that there was reasonable ground for bringing it." 42 Despite the fact the Third Interim Report's first recommendation and proviso applied only to joint tortfeasors, s 6(1)(b) of the 1935 Act extended to all classes of tortfeasors liable "whether as joint tortfeasors or otherwise" in respect of the damage suffered by the plaintiff as a result of their torts. 43 Point (II) of the Summary of Suggested Recommendations proposed the creation of a right of contribution as between joint tortfeasors. Point (III) made the same recommendation in respect of concurrent tortfeasors. Both rights of contribution were to be subject to the exception that contribution was not available if the person against whom it was sought proved an entitlement to be indemnified in respect of his, her or its liability to the other tortfeasor. 44 In Bracks (at [104]) I misread the recommendation summarised at point (III) to extend the proviso in recommendation at point (I) to concurrent tortfeasors and thence to be reflected in the English equivalent of s 5(1)(b) of the 1946 Act. In fact, as Campbell JA points out (at [156]), that is not so. 45 Section 6(1)(b) of the 1935 Act no longer exists in the United Kingdom. The Law Commission (Great Britain), Law of Contract: Report on Contribution, Law Com No 79 (1977), led to the enactment the Civil Liability (Contribution) Act 1978 (UK) (the "1978 Act"). Section 3 of that Act removed from the English legislation the limitation on the amount which might be recovered under a judgment in successive actions against the same class of persons to whom s 6(1)(b) of the 1935 Act had applied, leaving only the costs sanction: 1978 Act, s 4. The reforms effected by the 1978 Act have been largely adopted in the Wrongs Act 1985 (Vic): Alexander v Perpetual Trustees WA Pty Ltd [2004] HCA 7; (2004) 216 CLR 109 (at [23] - [24]).

The purpose of section 5(1) of the 1946 Act 46 Section 5 was a law reform measure which, however clumsily drafted, was intended to enlarge the rights of plaintiffs against joint tortfeasors, and of tortfeasors inter se. 47 The purpose of s 5(1)(a) was to abolish the rule in Brinsmead v Harrison. 48 The purpose of s 5(1)(b) has been said to be "to prevent excessive recovery by a plaintiff consequential on the creation of multiple causes of action against tortfeasors" (XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 (at 469) per Brennan J); an observation which, as was pointed out in Bracks (at [106]), should be understood to be confined to joint tortfeasors, they being the only defendants against whom multiple causes of action were newly created. Gibbs CJ observed in XL Petroleum (at 458) that the object of s 5(1)(b) was "to prevent a multiplicity of actions". 49 In Baxter (at [29]) Gleeson CJ and Callinan J (with whom Gummow and Hayne JJ agreed on the construction of s 5(1)(b)) expressed the view that s 5(1)(b) appeared to be directed to the problem of multiplicity of actions against joint tortfeasors, and several concurrent tortfeasors, operated in relation to the recoverability of sums awarded under judgments rather than upon rights of action, did not bar proceedings but limited recoverability, was also concerned with legal costs and (at [36]) has an effect that might be described as preventing double recovery. 50 Kirby J (with whose reasons respecting the construction of s 5(1)(b) Gummow and Hayne JJ also agreed), referred to the fact that the general object of the 1935 Act "was, relevantly, to abolish the old rule that release of one joint tortfeasor automatically released the other so far as the law was concerned" - an object effected by s 5(1)(a): Baxter (at [85]). In his Honour's opinion, s 5(1)(b) had to be construed in the context of the principal object of the legislative reform and (at [87]) in a manner which was consistent with the object reflected in s 5(1)(a): "[C]ontrol of the aggregate recovery so as to prevent double dipping by reason of the reform effected in par (a); and control of the recovery of multiple costs in several actions against concurrent tortfeasors where it would have been reasonable for the plaintiff to have brought one action, that is one proceeding." 51 According to Professor Glanville Williams, one of the objects of permitting subsequent actions by plaintiffs against all classes of tortfeasors as contemplated by s 5(1)(b) was "to prevent injustice to a plaintiff who finds that the tortfeasor whom he has chosen to sue is insolvent": Glanville Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited (at s10(2), p 39). This reform was of particular importance for a plaintiff who had suffered damage as a result of a joint tort, who recovered judgment against one tortfeasor which could not be enforced and who, at common law, because of the rule in Brinsmead v Harrison, could not have brought an action against any other joint tortfeasor. 52 In Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213 (at 217), Barwick CJ (McTiernan J agreeing), after referring to the unsatisfactory nature of the drafting of s 5(1)(c), described its general purpose as being "clear enough", saying: "It would seem that the legislature desired on the one hand to expose all tort-feasors who had caused or contributed to the same damage to suit by the injured party notwithstanding the recovery of judgment against any of them ; and that each tort-feasor who came under an obligation to pay damages should have contribution from every other tort-feasor who had caused or contributed to the same damage. But the draftsman chose words which have caused considerable uncertainty as to what precisely the legislature has enacted." (emphasis added) 53 The uncertainty to which his Honour referred is manifest in decisions on s 5(1)(c) which preceded and post-dated Brambles which are discussed later in these reasons.

The effect of section 5(1) 54 The effect s 5 of the 1946 Act had on the common law cannot be understood without an overview of the changes it wrought. 55 First, s 5(1)(a) abolished the rule in Brinsmead v Harrison both in cases where joint tortfeasors were sued in the one action as well as where separate actions were brought: Baxter (at [25]) per Gleeson CJ and Callinan J, applying XL Petroleum. It permitted successive actions to be brought against individual joint tortfeasors: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 (at 288) per Taylor J (Kitto J agreeing). As the effect of s 5(1)(a) was that the cause of action against joint tortfeasors was no longer one and indivisible, the rule that a release given by one joint tortfeasor released any other joint tortfeasor was also held to have been impliedly abolished by its Australian Capital Territory counterpart: Thompson (at 584) per Brennan CJ, Dawson and Toohey JJ. 56 Secondly, as I have said, s 5(1)(b), in cases where it operates, has an effect that might be described as preventing double recovery: Baxter (at [36]) per Gleeson CJ and Callinan J. That effect operates in respect of all tortfeasors liable in respect of the damage suffered by a person as a result of a tort. Insofar as it applies to concurrent tortfeasors, it curtails a plaintiff's common law rights whereunder a plaintiff could recover a larger judgment in a second action against a concurrent tortfeasor than recovered in the first, because the second judgment effectively cannot be for more than the first (The Koursk): Glanville Williams (at s10(2)). 57 Thirdly, s 5(1)(b) limits the recovery of compensatory damages. Thus if the evidence in successive actions were to lead to differing awards of compensatory damages, it would prevent the judgment creditor from receiving an amount exceeding the amount first awarded: XL Petroleum per Brennan J (at 466); see also Mason J (at 464). 58 The effect of the severance of the causes of action against joint tortfeasors is that, notwithstanding s 5(1)(b), a plaintiff can recover different awards of damages against joint tortfeasors, whether in the same or different proceedings, where the difference lies in one joint tortfeasor alone being liable for exemplary damages: XL Petroleum (at 454) per Gibbs CJ (Wilson J agreeing); Mason J (at 464); Brennan J (at 469 470); referred to with apparent approval in Baxter (at [20]) per Gleeson CJ and Callinan J. 59 Fourthly, s 5(1)(c), taken with s 5(2) created a right and remedy of contribution which did not exist at common law: James Hardie per Gaudron and Gummow JJ (at [2], [24]); per Kirby J (at [60]) (McHugh J agreeing); per Callinan J (at [116]); Alexander v Perpetual Trustees WA Ltd (at [2]) per Gleeson CJ, Gummow and Hayne JJ. That entitlement is "conferred only between certain parties [who] must answer the criteria specified in s 5(1)(c)": James Hardie (at [24]), per Gaudron and Gummow JJ. The claim of a tortfeasor for contribution is a cause of action apart from, and independent of, the cause of action which the injured party has or would have had against the tortfeasor from whom contribution is sought: Brambles (at 218) per Barwick CJ; see also James Hardie (at [28]). The claimant tortfeasor's cause of action to claim contribution does not arise until judgment is given ascertaining that tortfeasor's liability, although that fact does not preclude a claim for contribution being instituted in anticipation of the resolution of the main action: James Hardie (at [30]) per Gaudron and Gummow JJ. 60 Finally, in XL Petroleum (at 469), Brennan J expressed a view, albeit obiter, that s 5(1)(b) fixes the maximum sum in respect of which an order for contribution could be made under s 5(1)(c). Thus just as subsections (a) and (b) address different, although related, topics (Baxter (at [35]) per Gleeson CJ and Callinan J), there is a relationship between paragraphs (b) and (c) of s 5(1) which will become apparent in the course of the discussion which follows. 61 It is necessary now to turn to consider the three elements of s 5(1)(b) earlier identified, "tortfeasors liable", "judgment first given" and "damages awarded". It is convenient to commence with the "judgment" issue,

The "judgment" issue 62 There is no doubt, as s 4 and s 8 of the District Court Act make plain (and as the appellant accepted), that the 2007 judgment is a judgment given by a court of record and prima facie within s 5(1)(b). However that conclusion does not answer the question of construction: is it a "judgment" as contemplated by s 5(1)(b)? 63 The respondents' primary argument is that a consent judgment entered by a court creates an issue estoppel and that it is not open to a court to investigate the circumstances in which it came to be agreed or recorded by a court. 64 Consent judgments attract the operation of the doctrine of res judicata, however "[t]he fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date": Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; see also (at 505) per Brennan J; (at 512) per Dawson J; see also Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis at ([2.16]ff). 65 The observation in Chamberlain referred to in the previous paragraph gave, as an illustration, Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) 58 SR (NSW) 69. In that case, Street CJ and Roper CJ in Eq held (at 75) that orders made by consent create an estoppel as between parties "only as to those matters which are necessarily decided", to ascertain which: "…the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to." 66 In Isaacs, a consent judgment for Winslett was entered against Isaacs in an action in which Winslett claimed damages for personal injuries sustained through allegedly negligent driving by Isaacs' servant or agent. The consent judgment was entered pursuant to terms of settlement which required that "without admission of liability verdict to be entered in favour of the plaintiff". The trial judge entered a verdict for Winslett for £4500 and directed that judgment be entered. Judgment was entered in accordance with the Rules of Court - it contained no reference to the terms of settlement. Isaacs subsequently sought to claim damages from Winslett for the latter's allegedly negligent driving in the same accident. 67 Street CJ and Roper CJ in Eq (Owen J dissenting) held (at 75 - 76) that the fact the parties had by express agreement removed from the court's consideration any question of Isaacs' liability to Winslett, meant that no estoppel adverse to Isaacs arose on the issue of liability. Accordingly as the parties' intention that "the judgment, when entered, was not to be taken as establishing that [Isaacs] was in fact liable to [Winslett]" appeared in the court record, their Honours found it could not conclude the issue of liability had been determined adversely to Isaacs: Isaacs (at 76). This conclusion was described as correct in principle in Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 (at 90 - 91) per Doyle CJ (with whom Matheson and Olsson JJ agreed). The learned Chief Justice also observed that Isaacs was referred to in Chamberlain in the context of res judicata, in a manner which, in his view, did not limit the High Court's apparent approval of the decision to such estoppels. 68 Section 5(1)(b) only applies if more than one action is brought against "tortfeasors liable in respect of the damage". Isaacs is authority for the proposition that the 2007 judgment which, it will be recalled, was entered pursuant to terms of settlement expressed to be "without admission of liability" did not establish that the State was in fact liable to the appellant. Accordingly, if "liable" in s 5(1)(b) means "liable by judgment", the consent judgment did not meet that criterion. 69 However, in George Wimpey both Lord Reid (at 188) and Lord Keith (at 195) expressed a view, which was not essential to the disposition of the case, that "liable" in s 6(1)(b) of the 1935 Act could not mean "held liable" but, in context, meant "against whom there is a cause of action" (Lord Reid, at 189) or "liable to have a decree entered against him if sued to judgment" (Lord Keith, at 195). These dicta appear to be the only attempt to give content to the word "liable" in s 5(1)(b). 70 However, the meaning of the word "liable" in s 5(1)(a) and s 5(1)(c) is the subject of considerable authority. Consent judgments expressed to be "without admission of liability" have been held to establish a tortfeasor's liability for the purposes of that tortfeasor making a contribution claim under s 5(1)(c) of the 1946 Act - but only to a limited extent, as shall become apparent. There does not appear to be any case which has held that the same reasoning applies to the liability to which s 5(1)(b) refers. I will return to the issue of the meaning of the word "liable" in s 5(1). 71 Before leaving this area, I note that the second respondent drew attention to two judgments which she submitted should be applied as demonstrating that consent judgments are effective for the purposes of legislation in like terms to s 5(1)(b). 72 In Baker v Hallett [2004] QSC 132 (at [31]), Holmes J recorded a submission by counsel for a defendant seeking to resist a plaintiff pursuing a claim for damages in respect of which the plaintiff had earlier settled proceedings with another tortfeasor which led to the entry of a consent judgment in the plaintiff's favour, which judgment had not been satisfied. Counsel submitted that that s 6(b) of the Law Reform Act 1995 (Qld) precluded the plaintiff recovering any amount greater than that the subject of the consent judgment. There does not appear to have been any debate as to whether or not the consent judgment constituted a "judgment" for the purposes of s 6(b), rather her Honour disposed of the submission by saying s 6(b) bore on what may be recovered, not whether the claim should proceed. Baker casts no light on the issue in these proceedings. 73 In Ayling v BHP Direct Reduced Iron Pty Ltd [2001] WADC 252; (2001) 27 SR (WA) 274, Blaxell DCJ held (at [14]) that a consent judgment obtained in the Albany District Court could not "be treated as a fiction for any purpose…[and] was a judgment fixing the quantum of damages allegedly suffered by the plaintiff as a result of a tort, and clearly was a judgment within the meaning of s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA)." It appears (see [16]) that the plaintiff invited his Honour to "look behind the judgment to ascertain what claim or claims for damages the parties intended that it should meet." It is not clear what materials his Honour was invited to examine to determine the settling parties' intention. While his Honour accepted (at [16]) that the plaintiff and his solicitor did not intend that the consent judgment should satisfy the total claims for damages arising from his injuries, he regarded (see [21]) the fact that a consent judgment had been entered and satisfied as conclusive in barring the plaintiff from obtaining any further judgments in respect of the same damage. I would assume from that conclusion that the materials his Honour was invited to examine did not form part of the court record. 74 However as Isaacs (at 75) demonstrates, it is open to the Court to have regard to the record which includes the terms of settlement as filed in order to determine what is necessarily decided by a judgment. That course was taken in Baxter (see [15] - [17]) which was decided a few weeks after Ayling. It is a course open to this Court where the terms of settlement were filed and, accordingly, formed part of the record. It is sufficient to say that Ayling appears distinguishable.

The award of damages issue 75 As I have said (at [28]) the better view is that, prima facie, "damages awarded by …judgment" refers to damages awarded by a court. The conclusion that that is the meaning which should be ascribed to those words in s 5(1)(b) is supported by the distinction which is drawn between a judicial assessment of damages and damages received in consequence of the settlement of an action. 76 In Baxter (at [40], [42]) in discussing the principles of recovery and satisfaction, Gleeson CJ and Callinan J distinguished between a judicial assessment of damages that "will ordinarily involve a judicial assessment of the entire extent of the plaintiff's loss or damage" and a consent judgment which may be by way of compromise. A judicial assessment of damages, where the judgment had been satisfied (at [47]): "…will put an end to any claim, or possible claim, against another tortfeasor, whether a joint tortfeasor or one of several concurrent tortfeasors [because] the damage, as assessed by judicial decision, has been fully recouped and the claim against another tortfeasor lacks a subject matter. Where…damage is an essential element of the cause of action, that element will have gone." 77 In contrast, their Honours observed the same conclusion only followed in the case of a settled action if (at [48]): "[A] settlement agreement manifested a common intention of the parties to the agreement that the settlement sum was to be paid and received in full satisfaction of the rights of the plaintiff, against the defendant or anyone else, in relation to the loss or damage incurred". 78 As the evidence in Baxter (which included a consent judgment, terms of settlement and a deed of release) made it clear that the respondents were not accepting the settlement sum in full satisfaction of the loss or damage they said they had incurred and demonstrated they always intended to pursue their claim against the appellant, proceeding with the action did not offend the rule against double recovery/satisfaction: Baxter (at [49]) per Gleeson CJ and Callinan J; see also Gummow and Hayne JJ (at [69]); Kirby J (at [92]). 79 The premise accepted in Baxter, that a sum received by way of settlement may not reflect the full amount of a plaintiff's loss reflects the proposition that a sum received by way of a settlement illustrates "the plaintiff's chances of success in the action" in contradistinction to the amount awarded by a judge which proceeds on the basis that "the action has, ex hypothesi, succeeded…[s]o there is no room for any discount": Jameson v Central Electricity Generating Board [2000] 1 AC 455 (at 467) per Lord Lloyd; see also Heaton v AXA Equity & Law Life Assurance Society plc [2002] UKHL 15; [2002] 2 AC 329 (at [3] - [5]) per Lord Bingham of Cornhill (with whom Lord Steyn and Lord Hope of Craighead agreed).

The meaning of "liable" in section 5(1) 80 In James Hardie (at [12]), Gaudron and Gummow JJ observed that the 1946 Act "represents an attempt to adjust the tripartite rights and interests of P, D1 and D2" adding that "[a]ny regime of this nature is at greater risk of generating anomalies where all those liable to suit are not sued at the same time and in the one proceeding." 81 Section 5(1)'s adjustment of the tripartite rights and interests of P, D1 and D2 turns on the concept of a tortfeasor or tortfeasors being "liable" in respect of the "damage…suffered by any person as a result of a tort" as referred to in the opening words of the section. As I have said, the word "liable" has been held to have different meanings in the various subsections of s 5, although there is little authority considering its meaning in s 5(1)(b). The South Australian analogue of s 5(1)(b), s 25(1)(b) of the Wrongs Act 1936 (SA), was applied in South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389 to prevent a plaintiff who had been awarded damages against his employer by a court, which judgment had been satisfied, from pursuing a second action against a joint and/or concurrent tortfeasor. The damages in the first action were subject to a statutory limit by virtue of s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA). The case turned on whether the actions were in respect of the same damage. Williams J (Olsson and Duggan JJ agreeing) held (at [34]), applying Mahony v J Krusich (Demolitions) Pty Ltd, that they were. It was not to the point that the plaintiff may have suffered "various damages…under different heads." There was no discussion of s 25(1)(b) relevant to the issue in this case. 82 In Wah Tat the Privy Council held that the Singaporean equivalent of s 5(1)(a) abolished the rule in Brinsmead v Harrison in its entirety, whether or not joint tortfeasors were sued in one or more actions. In a passage referred to with apparent approval in Baxter (at [23]) per Gleeson CJ and Callinan J, Lord Salmon, giving the judgment of the Privy Council and speaking of the phrase in that subsection, "any other person who would, if sued, have been liable", said (at 518): "Whether or not a person is liable for a tort cannot, apart from the context of those words, depend upon whether or not he is sued. He is liable for the tort from the moment when he commits it. But paragraph (a) contemplates the case of a person being 'liable' only 'if sued.' A person is held liable only when he is sued to judgment , not at the moment when he is sued. Accordingly, to construe the words 'if sued' as meaning 'if sued to judgment' and the word 'liable' as 'held liable' is not to put a strained meaning upon words … but to give them their ordinary and natural meaning in their context in paragraph (a)." (emphasis in original) 83 Cases decided on the meaning of "liable" in s 5(1)(c) establish that not only a judicial finding of liability, but also consent judgments, as well as settlements made "without admission of liability", can satisfy the threshold test in that subsection that a claimant for contribution be a "tortfeasor liable…". These cases arguably depart from the meaning given to "liable" for the purposes of s 5(1)(a), reflecting Lord Reid's view that "on any construction of the subsection the word 'liable' must be held to have quite different meanings in different places in the subsection": George Wimpey (at 189). 84 There are two limbs to s 5(1)(c). The first requires the party seeking contribution to be a "tortfeasor liable" in respect of the "damages" referred to in s 5(1). The second requires the person from whom contribution is sought to be a "tortfeasor who is, or would if sued have been, liable in respect of the same damage." 85 In George Wimpey (at 188 - 189) the House of Lords held that the word "liable" where it appeared in the second limb of s 6(1)(c) of the 1935 Act, meant "liable in judgment", although their Lordships were unable to agree as to the construction of the sub-section on that basis: Bitumen & Oil Refineries (at 207). 86 Later authorities considering the first limb of s 5(1)(c) have not embraced the meaning of "liable" in the sense of "liable in judgment" which appealed to the House of Lords in George Wimpey. 87 Despite early cautious remarks as to whether the ascertainment of liability for the purposes of the first limb of s 5(1)(c) must be "by judgment to the exclusion, for example, of arbitral award or of agreement itself amounting to accord and satisfaction or of an agreement amounting to accord executory followed by satisfaction" (Bitumen & Oil Refineries (at 212)), later authority "admits of the sufficiency of at least some of those methods": James Hardie (at [26]) per Gaudron and Gummow JJ; Thompson (at 616 - 617) per Gummow J (with whom Gaudron J relevantly agreed); Brambles (at 221) per Windeyer J. 88 In Brambles (at 219) Barwick CJ (McTiernan J agreeing) held that "a tort-feasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act" could recover contribution from another tort-feasor who had also come under an obligation to pay money in respect of the same damage and from any other tort-feasor "who, not having been sued by the injured party, had he been sued [at any time], would have been found to have caused or contributed to the same damage by a tortious act." 89 Subsequent authorities dealing with the meaning of "any tort-feasor liable" in the first limb of s 5(1)(c) have endorsed Barwick CJ's view in Brambles, that that condition is satisfied if the party claiming contribution is subject to "an enforceable obligation to pay money for the damage caused by his tortious act", whether or not that liability arises from a judgment after a contested hearing or a settlement. 90 In Thompson, which considered s 11(4) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), the Australian Capital Territory equivalent of s 5(1)(c), Gummow J referred with approval (at 616 - 617) to authority supporting the proposition that the first limb requirement ("any tort-feasor liable") included: "[A] party whose liability has been ascertained upon a settlement whether or not reflected in a consent judgment, and that this is so whether or not in reaching the settlement the party now seeking contribution admitted liability." 91 However, Gummow J also observed (at 616) that: "[T]he party seeking contribution after such a settlement must be prepared in that proceeding to establish that, if the claim had been fought out, that party would have been held responsible in law and liable to pay in whole or in part for the damage referred to in s 11(4)."

This observation reflects a view that before a contribution claim can be made under s 5(1)(c) there must have been a judicial determination of the claimant's primary liability to the "person" referred to in s 5(1). 92 The case to which Gummow J referred as authority for the proposition that liability for the purposes of the first limb of s 5(1)(c) can be established by a settlement was Stott, which his Honour observed had been followed in Bakker v Joppich (1980) 25 SASR 468 (at 472 - 473) per Wells J; John Holland (Constructions) Pty Ltd v Jordin (1985) 36 NTR 1 (at 11 - 12) per Nader J and Ballina Shire Council v Volk (1989) 18 NSWLR 1 (at 10) per Kirby P (Priestley JA and Hope AJA agreeing); and, as his Honour also observed, was foreshadowed in New Zealand by McGregor J in Baylis v Waugh [1962] NZLR 44. 93 In Stott the English Court of Appeal held that "liable" in the first limb of s 6(1)(c) of the 1935 Act means "responsible in law" and not "held liable in an action". The consequence of that ruling was (per Lord Denning MR (at 657)): "[A] tortfeasor is entitled to recover contribution from another tortfeasor (i) when he has been held liable in judgment; (ii) when he has admitted liability; and (iii ) when he has settled the action by agreeing to make payment to the injured person, even though, in making the settlement, he has not admitted liability. " (emphasis added)

However, Lord Denning MR also observed (at 657), that a tortfeasor who settled an action could not claim contribution from another tortfeasor unless he proved that he himself was "liable", that is to say, "that, if the claim had been fought out, he would have been held responsible in law and liable to pay in whole or in part for the damage." Salmon LJ made similar observations: Stott (at 659 - 660). 94 The cases in Australia to which Gummow J referred in Thompson, in which Stott has been followed or referred to, have turned on the construction of legislation in substantially the same terms as the first limb of s 5(1)(c). In Bakker (at [473]), Wells J concluded that a defendant who had made an accord and satisfaction with the plaintiff pursuant to which he agreed to pay the plaintiff $75000 damages, was a "tortfeasor liable in respect of [the] damage" "suffered by" the plaintiff within the meaning of s 25 of the Wrongs Act 1936 (SA). In his Honour's view, the word "liable" in the first limb of s 25(1)(c) comprehended all circumstances in which a defendant became: "[U]nder any head, legally liable to the plaintiff to pay damages on account of acknowledged or alleged negligence [and]…exist[ed], inter alia, where the defendant has submitted to judgment on that account or has made an accord and satisfaction." 95 In John Holland (Constructions) Pty Ltd, Nader J held that the cause of action to recover contribution from a joint tortfeasor pursuant to s 12(4) of the Law Reform (Miscellaneous Provisions) Act 1956 (NT) did not arise until judgment had been given or at least a settlement reached in the action against the plaintiff - in other words, until one or other of those events had occurred, the claimant for contribution was not a "tortfeasor liable in respect of the damage". His Honour referred to the Court of Appeal's views in Stott as the "most liberal" on the question whether a tortfeasor was "liable" so as to be able to claim contribution. Ballina Shire Council considered the meaning of "tortfeasor liable" in s (5)(1) but referred (at 10) to Stott (at 657) on a procedural point only. 96 In Baylis v Waugh, McGregor J held (at 49) that "liable" for the purposes of the first limb of s 17(1)(c) of the Law Reform Act 1936 (NZ), meant "responsible in law". On that basis he concluded that a defendant who had made a payment into court, which had been accepted by the plaintiff, could make a claim for contribution from a third party, although in that claim it would have to prove that it was a tortfeasor liable at the time the monies were paid into court. This view, he noted (at 49 - 50), accorded with that expressed at the time in Salmond on Torts, 12th ed (1957) Sweet & Maxwell (at 93) and Fleming on Torts, 2nd ed (1961) Law Book Co (at 694). I note that it also accorded with that expressed by Glanville Williams (at s31(a)). In Dairy Containers Ltd v NZI Bank Ltd; Auditor-General [1995] 2 NZLR 30 (at 123), Thomas J described the conclusion reached in Stott and Baylis as a "sensible view … arrived at in order to permit a tortfeasor who had settled a claim to seek contribution from a joint tortfeasor", but added "[s]uch a person has not, of course, been held liable in a judgment." 97 In James Hardie the High Court held (Gaudron, Gummow and Callinan JJ; McHugh and Kirby JJ dissenting) for the purposes of the second limb of s 5(1)(c)), that a consent judgment entered by a court of record in favour of a person from whom contribution was sought (D3) established that D3 was not a "tort-feasor who is, or would if sued have been, liable…". Gaudron and Gummow JJ held (at [35]) that the second limb did not extend to "those who were sued but obtained the entry of judgment in their favour, whether by consent or otherwise." In their Honours' view (at [41]): "The status of the [Dust Diseases] Tribunal as a court of record was such that the circumstance that the judgment in favour of the respondent was entered by consent renders it no less effective to absolve the respondent from liability to the plaintiff."

Callinan J (at [126] -[127]) reached the same conclusion. 98 These authorities demonstrate, in my view, for that for the purposes of s 5(1)(c), the efficacy of a consent judgment turns upon the purpose for which it is sought to be prayed in aid. Thus in the context of the first limb, a claimant for contribution who has agreed to terms of settlement which result in a consent judgment in the plaintiff's favour is prima facie a "tortfeasor liable" for the purposes of the first limb. In other words such a settlement establishes that the claimant is subject to "an enforceable obligation to pay money for the damage caused by his tortious act" (Brambles (at 219)) and "responsible in law" (Stott). However because that tortfeasor has not been "held liable", in order to make a contribution claim, s/he has to establish that, had the claim been litigated to judicial determination, s/he would have been "held responsible in law": Thompson (at 616). Applying that conclusion to this case, it is apparent that, were the State to seek to claim contribution from the respondents it would have to establish that it was, in fact, responsible in law to the appellant for the damage she suffered in consequence of their treatment. 99 Conversely, a consent judgment entered in favour of a defendant establishes that person is not within the second limb of s 5(1)(c) because, having been sued, s/he has been found not liable to the injured party: James Hardie. James Hardie, however, turned on the words in the second limb of s 5(1)(c) where the concept of liability appears in a different context both to the first limb of s 5(1)(c) and to that in which it appears in s 5(1)(b).

Conclusion 100 Once the constituents of s 5(1)(b) are understood, it can be seen, in my view, that its purpose was to cap a plaintiff's damages in a successive action, where damages had been determined in a first action in which the damages awarded fully recouped the plaintiff's loss. That approach is consistent with the section having the effect of avoiding double recovery (Baxter (at [36])) and preventing double dipping (Baxter (at [87])). 101 That purpose is consistent with a literal approach to the construction of s 5(1)(b) (the approach favoured in Baxter) in regarding the "controlling" expression (Baxter (at [35])) as being that the "judgment first given" was one under which damages were "awarded" - an expression most apt to describe the outcome of a judicial determination pursuant to which that the defendant was held to be a tortfeasor liable. That construction gives all of the provisions of s 5(1)(b) work to do, whereas the approach for which the respondents contended would give no work to the words "damages awarded". It also gives the same meaning to "tortfeasor liable" in s 5(1)(b) as has been given to that expression for the purposes of the first limb of s 5(1)(c). 102 The respondents' approach would inhibit a plaintiff from exercising their right to pursue the cumulative remedies which they had against concurrent tortfeasors prior to the introduction of s 5(1), and then acquired against joint tortfeasors, subject to the plaintiff not having fully recouped his/her loss in an earlier action. Although s 5(1) was directed to multiplicity of proceedings, it did not, as earlier pointed out, bar proceedings, only recovery. The question as to whether a plaintiff was justified in bringing a successive action, for which there may be a variety of reasons (Baxter (at [38])) was to be dealt with, where appropriate, by costs penalties. 103 Further, if the respondents' contention as to the construction of s 5(1)(b) was correct, the effect may well be to discourage plaintiffs from settling actions. Such a result would not reflect the common law's attitude to settlements, which are encouraged. As Gleeson CJ and Callinan J observed in Baxter (at [38]) it was: "…not easy to understand the rationale of a rule of law or equity that would make it impossible, as a matter of principle, for [plaintiffs] to settle with [one tortfeasor] and press on with their claim against [another]".

In like vein, in Baxter (at [56]), Gummow and Hayne JJ approved Lord Lloyd of Berwick's statement in Jameson v Central Electricity Generating Board (at 466) that: "On the face of it, it would seem strange and unjust that a plaintiff who settles a claim against A in respect of one cause of action should be unable to pursue a claim in respect of a separate cause of action against B."

Kirby J ( Baxter (at [74])) expressed the view that: "Without clear legislative provisions requiring a contrary decision, a court should not readily come to a conclusion about ambiguous provisions of a statute - or uncertain requirements of the rules of the common law or of equity - that would inhibit the early settlement of litigation as between those parties to a dispute who are agreed, even if they do not represent all of the parties to the litigation." 104 While the first of these statements were made in the context of the consideration of the principle of double satisfaction, they reflect the position at common law at the time s 5(1) was enacted. That position was reflected in Kirby J's statement which applies directly to the construction of s 5(1)(b). These militate against a construction of s 5(1)(b) which would discourage the settlement of actions, by holding that a settlement of a claim which most probably reflected a discount of the plaintiff's loss, should cap recovery in successive actions against tortfeasors liable in respect of the same damage and in respect of which actions similar discounting considerations may not apply. 105 More importantly s 5(1)(b) does not speak with the clear language (see [23] above) which would be necessary to impute to the Act the purpose of overthrowing the principle that a plaintiff is entitled to recoup fully the damage suffered as a result of a joint/concurrent tort. Nor, I should add, does it manifest the clear language necessary to abolish the rule against double satisfaction: Baxter (at [89]) per Kirby J. 106 On the approach I favour, a plaintiff who has settled with a tortfeasor, even one "liable" under a consent judgment entered without admission of liability, will still have to give credit to the defendants in any successive action for the amount received under the settlement: Baxter (at [37] - [38], [48]) per Gleeson CJ and Callinan J; (at [64]) per Gummow and Hayne JJ; (at [93]) per Kirby J. As Campbell JA observes (at [231]) the factual difficulties which may arise in determining in the present case of settlement covering all injuries the appellant had suffered whilst in the State's employ, may create some problems, but such issues also have to be resolved in situations not governed by s 5(1)(b) - and, at least insofar as concurrent tortfeasors were concerned, had to be determined at common law prior to the enactment of s 5(1)(b). 107 An illustration of the need to conduct a "trial within a trial" following the settlement of an action can be seen in Hickson v Goodman Fielder Ltd [2009] HCA 11; (2009) 237 CLR 130. In that case, the High Court recognised (at [44]) that such a trial may be necessary as an incident of the determination under s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW) of the amount of compensation a worker was liable to repay out of his damages to the person who had paid him compensation - a repayment which had to be reduced to reflect the worker's contributory negligence because of the operation of s 9 and s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). The worker had recovered the damages following the settlement of his common law proceedings against a tortfeasor. In the statutory scheme considered in Hickson, "damages" were defined to include "any amount paid under a compromise or settlement of a claim for damages": Workers Compensation Act, s 149(1). 108 Further, it will also be open to the defendant in a successive action to raise the defence of satisfaction. If that is done, the defendant establishes that money was paid to the plaintiff in circumstances capable of attracting the rule against double satisfaction, it will be incumbent on the plaintiff to show that the money was not received by way of compensation for the loss: SAS Trustee Corp v Budd [2005] NSWCA 366; (2005) 3 DDCR 382 (at [49]) per Mason P (Handley and McColl JJA agreeing) referring with approval to Boncristiano v Lohmann [1998] 4 VR 82 (at 89 - 90) per Winneke P (Charles and Batt JJA agreeing). It might be noted that where, as in the present case, the settlement is inclusive of costs, the party against whom the defence of satisfaction is pleaded will be entitled to deduct the costs of the settled action before having to give credit for the amount received under the settlement: Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880 (at 882) per Steyn J. There may be room for debate as to how that figure should be determined. 109 The literal construction is also supported by the fact that, as is apparent from the foregoing discussion, whether a consent judgment determines the issue of liability turns on the circumstances in which the issue is raised. It is sufficient to say that it is apparent that such a judgment may, or may not be, decisive of the issue of liability in s 5(1). If, as follows from Isaacs, the consent judgment did not determine the issue of the State's liability in the 2007 Action, why should it have the contrary effect in the 2005 Action? The point can be put another way: if the State sought to claim contribution from the respondents pursuant to s 5(1)(c), it would have to first establish it was "responsible in law" to the appellant: Thompson, Stott. Why in such circumstances should the consent judgment be, as the respondents submit, determinative of the issue of the State's liability in the 2005 Action? These considerations emphasise the importance of looking at the concepts of liability, judgment and award of damages as used in s 5(1)(b) in their overall context rather than in isolation. Recognition of the fact that a consent judgment expressed as in the present case does not determine the issue of liability, and that an amount agreed under a settlement may not fully recoup a plaintiff's loss, supports the proposition that a "judgment first given" in s 5(1)(b) must be a judgment given by a court. 110 In my view the 2007 judgment was not a one under which "damages [were] awarded" by a "judgment first given" within the meaning of s 5(1)(b). 111 The primary judge erred in finding to the contrary and in striking out the 2005 action as an abuse of process. 112 In the light of this conclusion, I agree with Campbell JA (at [240]) that it is unnecessary to decide whether the primary judge acted prematurely in dismissing the 2005 Action without determining the factual issues the appellant also sought to raise. 113 CAMPBELL JA:

Nature of the Proceedings 114 This judgment relates to the hearing of both an application for leave to appeal, and the appeal if leave is granted. The order against which leave to appeal is sought was made in the District Court of NSW on 20 February 2009 by his Honour Judge Robison. In essence, he ordered that proceedings that the Applicant had brought against the Respondents seeking damages for personal injury be dismissed, on the basis that the Applicant had already recovered damages from another tortfeasor for the injury that was the subject of the action. 115 The action that has been dismissed is 4603 of 2005 ("the 2005 Action"). The action was brought against two defendants (and only two defendants), who are the Respondents to the present application. In the Amended Statement of Claim the Applicant alleged that in December 1999, whilst working for the Department of Education & Training, she had injured her back through heavy lifting. Between August 2002 and December 2002 she was sent to the First Respondent, a corporation that provided rehabilitation services, for a supervised gymnasium program. The Second Respondent is a natural person, and was the person who devised and supervised the particular exercises that the Applicant undertook. The Applicant was uncertain whether the Second Respondent was an employee of the First Respondent, or an independent contractor, so the Applicant sued both Respondents in the alternative. She alleged that the exercises that she was required to do were inappropriate and caused her to suffer an injury to her left shoulder, and shock. The Particulars of Disability included not only damage to the left shoulder requiring medical treatment, but also development of right shoulder pain due to favouring the left, and some psychological sequelae. 116 The Applicant had also commenced a different set of proceedings against the State of New South Wales, number 1566 of 2007 ("the 2007 Action"). The State was the only defendant in those proceedings. It was sued as the entity answerable in damages for the activities of the Department of Education & Training. In the 2007 Action, the Applicant claimed damages for three connected acts of negligence. The first had occurred at the school at which she was employed in December 1999, when she was required to engage in heavy lifting, and had injured her back. The second occurred between August 2002 and December 2002, when the Applicant in the course of her treatment in respect of her back condition was referred to the First Respondent for management of her injury and rehabilitation back into the workforce. The applicant alleged that at that time she was required to carry out inappropriate exercises, which injured her left shoulder and caused her shock. The State was alleged to be liable "for the treatment imposed upon the Plaintiff by" the First Respondent. Though in somewhat different language to the language used in the Particulars of Disabilities in the pleading concerning the 2005 Action, the Applicant asserted that she had suffered ongoing symptoms in her left shoulder that required medical treatment, development of right shoulder symptoms due to favouring the left, and psychological sequelae of anxiety and depression. The third allegation of negligence brought against the State was that in the period between March 2004 to August 2004, while carrying out work at one of the schools of the Department, she was again given work to do that was inappropriate, and that brought about an injury to her right shoulder. 117 By 10 October 2008 both sets of proceedings had been set down for hearing in the District Court on 21 October 2008. The parties in both sets of proceedings participated in a mediation on 10 October 2008. No settlement of the 2005 Action was achieved at that mediation. However, either at the mediation, or very soon afterwards, counsel for the two parties to the 2007 Action (and no one else) signed Terms of Settlement dated 10 October 2008. The Terms of Settlement were drawn, in a form suitable for lodgement in the District Court, in the 2007 Action. 118 The first term of those Terms of Settlement was for amendment of the pleadings in the 2007 Action in the following manner: "1. Amend Statement of Claim to insert the following after existing paragraph 20: '(21) Further the Plaintiff has suffered injury by reason of the general nature and conditions of the entire period of the Plaintiff's employment with the Defendant to date and, in addition to the injuries pleaded above, the Plaintiff claims damages in respect of such injury.' 2. Amend Statement of Claim and the Part 15 r15.12 Statement of Particulars to add the following to the PARTICULARS OF INJURIES wherever appearing. 'Together with injury to the whole body including but not limited to injury to the head, neck, back, whole spine, both upper and lower limbs in their entirety, upper and lower body, buttocks, hips, pelvis, abdomen, groin, injury by way of hernia or like condition together with industrial or other deafness and psychiatric injury.' " 119 Other relevant terms of the Terms of Settlement are: "2. Verdict and Judgment for the Plaintiff against the Defendant in the sum of $220,000 - inclusive of costs. 3. No deductions are to be made from the amount of the said Judgment in respect of any payments to, for or on behalf of the Plaintiff by the Defendant pursuant to the Workers' Compensation Act , 1987 as amended. … 6. Noted the above settlement represents a compromise by the Plaintiff based on liability issues and quantum issues. 7. These terms not to be disclosed except as required by law. 8. The parties note that this is a settlement against the defendant in these proceedings only and is without prejudice to other claims the plaintiff has against the defendants in proceedings No: 4603 of 2005." 120 The Judicial Registrar of the District Court made orders and notes in accordance with the Terms of Settlement on 17 November 2008. It was common ground, both in the court below and before us, that before the hearing of the motions on which the judge made the order from which the present application for leave to appeal is brought, the State had paid the Applicant the whole of the amount of the judgment to which it had consented. 121 The parties to the 2007 Action also executed a Deed of Release. The terms of that Deed were not before us on the appeal, and no party to the appeal regarded it as making any material change to the situation that arose from the Terms of Settlement. 122 At the hearing in the District Court on 21 October 2008, the Applicant's counsel announced that there had been a settlement of the 2007 Action. Thereupon, counsel for one or more of the Respondents applied orally to the judge to have the 2005 Action dismissed. The judge was unwilling to deal with such an application when it was made without notice. Each of the Respondents later filed a Notice of Motion seeking an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 that the 2005 Action be dismissed. It was clear, from a discussion that occurred in court on 21 October 2008 and also from the terms of affidavits filed in support of those Notices of Motion, that the basis on which the dismissal was sought was the verdict that the Applicant had obtained against the State, its payment in full and the provisions of section 5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946. 123 So far as relevant, UCPR 13.4(1) states: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim." 124 Section 5(1) Law Reform (Miscellaneous Provisions) Act provides: "Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage, (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action, (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought." 125 As explained in Bracks v Smyth-Kirk [2009] NSWCA 401 at [113] the "damage" of which section 5(1) speaks: "… is not to be equated to the 'damages' awarded by a court, but is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, 'damage' includes both the injury itself and other foreseeable consequences suffered by the plaintiff." 126 Section 5 of the Law (Miscellaneous Provisions) Act 1946 is copied almost word for word from section 6 of the Law Reform (Married Women and Tort-feasors) Act 1935 (UK) ("The UK Act"). (The only differences are that the NSW Act contains, in section 5(1)(b), a longer list of relatives who might bring a Compensation to Relatives action, and in section 3(a) replaces references to the English Acts by which family relationships were defined with references to corresponding NSW Acts.) The UK Act itself is derived from the recommendations of the Great Britain Law Revision Committee, Third Interim Report (1934). 127 Section 6 of the UK Act was repealed and in part replaced by the Civil Liability (Contribution) Act 1978 (UK). The replacement included the restriction that section 6 had imposed on the recovery of the costs of a second action, but did not re-enact the restriction that section 6 had imposed on the amount of damages that was collectable from a second action. However section 5(1)(b) of the NSW legislation continues in force.

Leave to Appeal 128 The Applicant accepts that the present is a case for which leave to appeal is needed. Neither Respondent has made any submission opposing the grant of that leave. 129 Though there is surprisingly little judicial authority on the application of section 5(1)(b), the application of the provision has been considered by the High Court comparatively recently in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635. However an essential difference of Baxter from this case is that in Baxter section 5(1)(b) was ultimately held not to apply because there were not two actions, while in the present case it is conceded that there are two actions. The provision has also been considered in the Full Court of South Australia comparatively recently in South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389, but (as will later appear) in a way that does not dispose of all the issues raised in the present case. 130 This Court also has considered the provision very recently in Bracks v Smyth-Kirk. In Bracks, the plaintiff had sued the publisher of matter that defamed him, settled that action, received the settlement sum, and then began a second action against the author of some of the defamatory material. The second action was held to be an abuse of process, by reason of section 5(1)(b). There are some features that differentiate the present case from Bracks, which may or may not be of significance for the outcome. First, in Bracks there was nothing in the terms of settlement of the first action that sought to make clear that the amount of the consent verdict was received as a compromise amount, or that the plaintiff reserved the right to bring or intended to bring the second action. Second, in Bracks the tortfeasors concerned were joint tortfeasors, while in the present case the facts alleged against the Respondents are such that, if made out at trial, the Respondents considered collectively, and the State, would be several tortfeasors. As well, in Bracks it was assumed that the amount of the consent judgment in the first action was an amount of "damages awarded", while in the present case the argument of the Appellant challenges that assumption. 131 In my view the issues raised by the case are of sufficient importance to warrant the grant of leave to appeal. I will henceforth refer to the Applicant as the Appellant.

Issues and Conclusion 132 In this judgment I will start by considering the legal background in England and New South Wales from which section 5(1)(b) arose, in an effort to ascertain the mischief that lay behind its enactment. Then I consider seriatim arguments put by the Appellant, to the effect that:

(1) the judge was wrong in summarily dismissing the 2005 Action, when the rationale of section 5(1)(b) is to prevent a plaintiff from "double dipping" or receiving double compensation from tortfeasors who caused the same damage, and the present was a case where there was a real prospect that the plaintiff had not received full compensation from the State for any of the damage that the Appellant had suffered through being injured at the hands of the Respondents, because a. the damages that she could recover against the State, as her employer, were severely limited by the Workers Compensation Act 1987 , and thus inevitably less than full compensation, and b. she had expressly stated, in the Terms of Settlement, that the quantum of damages for which she settled was a compromise, and made clear that she wished to carry on with her action against the Respondents.

(2) this court should follow the decision of the Tasmanian Supreme Court in Ripper v Gatenby [2002] TASSC 45, with the consequence that the judge was wrong in holding that section 5(1)(b) is applicable.

(3) section 5(1)(b) is not applicable, because this is a case where there are several tortfeasors and the requirement of section 5(1)(b) that there be "damages awarded" in the first action is not satisfied when the first action resulted in judgment for a sum that is not the product of a judicial decision.

(4) the judge was wrong in summarily dismissing the 2005 Action, when he had not determined whether any damage that the Appellant had suffered at the hands of the Respondents was the "same damage" as the State was responsible for.

I have reached the conclusion that the first two of these arguments fail, but the third succeeds. In those circumstances it is not necessary to reach a final view about the fourth.

The Background to the 1935 English Legislation 133 English law developed the notion of a "joint tort" as a means of allocating legal responsibility for particular damage that a plaintiff had suffered. There were circumstances, such as agency, or vicarious liability or acting in concert, where more than one person had had a role in an action or omission that came to damage the plaintiff, and where the law regarded each of those persons as bearing responsibility for that action or omission. They were regarded as having committed together the legal wrong that was involved in that action or omission, and thus all bore responsibility for it. A characteristic of a joint tort is that only one breach has occurred of a legal duty that is owed to the plaintiff. 134 In contrast, if two or more people each separately breached a duty that he or she owed to the plaintiff, and caused damage to the plaintiff, each of those people was regarded as having committed his or her own wrong to the plaintiff. Such people were several tortfeasors. If several tortfeasors had each caused the same damage to the plaintiff, they were several concurrent tortfeasors. 135 Under the common law a person who had suffered a joint tort could sue all the joint tortfeasors in one action, or could sue only one of the joint tortfeasors, or as many of the joint tortfeasors as he or she pleased: Glanville Williams, Joint Torts and Contributory Negligence (London, Stevens & Sons Ltd, 1951) p 49-50 and cases there cited; Baxter v Obacelo (2001) 205 CLR 635 at [19]. Because a joint tort was just a single tort, if a plaintiff chose to sue less than all of the joint tortfeasors the plaintiff's right to sue for the joint tort would merge in the judgment so obtained. Once the right to sue had so merged, the plaintiff no longer had a right to sue any of the remaining joint tortfeasors, precisely because his or her right to sue had merged in the judgment already obtained. 136 One of the consequences of a judgment against one of a number of joint tortfeasors causing the cause of action against the others to disappear through merger was that if the judgment obtained against the tortfeasor who had first been sued did not result in the plaintiff receiving the amount of the judgment debt, because of the inability of the defendant to pay or skill in escaping execution of the judgment, the plaintiff could not sue any of the remaining tortfeasors. Brinsmead v Harrison (1872) 7 CP 547, a decision of five judges in the Exchequer Chamber, held that the first judgment could be pleaded as a bar to any subsequent action brought against other joint tortfeasors. Kelly CB at 551 stated one of the justifications of this principle is being: "If it were held not to be a defence, the effect would in the first place be to encourage any number of vexatious actions wherever there happened to be several joint wrong-doers. An unprincipled attorney might be found willing enough to bring an action against each and every of them, and so accumulate a vast amount of useless costs, if judgment against one of them did not operate as a bar to proceedings against the others. The mischief would not even rest there. Judgment having been recovered against one or more of the wrong-doers, and damages assessed, if that judgment afforded no defence, the plaintiff might proceed to trial against another of them, and the second jury might assess a different amount of damages. Which amount is the plaintiff to levy? There are other grounds upon which it would be extremely inconvenient and unjust if a second action could be maintained." 137 Kelly CB did not explain what those "other grounds" were. 138 Blackburn J at 553 justified the rule on what at first sight appears to be two different bases: "I apprehend that it is [justified], on the grounds that transit in rem judicatam , or upon the general principle of convenience which is expressed in the maxim 'Interest republicae ut sit finis litium.' Is it for the general interest that, having once established and made certain his right by having obtained a judgment against one of several wrong-doers, a plaintiff should be allowed to bring a multiplicity of actions in respect of the same wrong? I apprehend it is not; and that, having established his right against one, the recovery in that action is a bar to any further proceedings against the others." 139 The first of the bases supported by Blackburn J, transit in rem judicatum, is the theoretical legal consideration that the cause of action has disappeared through merger in the first judgment. The second basis supported by Blackburn J, the Latin maxim that translates roughly as "it is in the interest of the community that litigation should come to an end", is a direct appeal to policy. The undesirability that he sees is bringing a multiplicity of actions in respect of the same wrong. However it may be that his second ground is in substance no different to the first, for the justification for the principle that a cause of action merges in a judgment is sometime stated in terms of the "interest reipublicae ut sit finis litium" maxim - that once a judgment has been obtained on a cause of action, "it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result" (Latin Words & Phrases for Lawyers, Law and Business Publications (Canada) Inc 1980 p 120). Mellor J, Cleasby B and Lush J all delivered concurring opinions. 140 The procedural situation concerning several tortfeasors at common law was, strictly, that several tortfeasors could not be sued in the one action. However there was a well-established procedural device for circumventing that rule: if a plaintiff sued several defendants in a single action, alleging they were joint tortfeasors, but at the trial it was found that they had committed separate torts, the plaintiff could recover several damages against them: Glanville Williams, op cit, p 51 and cases there cited; Spicer v Carmody (1948) 48 SR (NSW) 348 at 351 per Jordon CJ. 141 An apparent attempt was made when England introduced new Rules of the Supreme Court in 1883 to remove the need to resort to this procedural device. Order 16, rule 4 of those Rules provided: "All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment." 142 However, there were dicta in the House of Lords in Smurthwaite v Hannay [1894] AC 494 at 501, and 504-5 that this rule did not permit the joinder in one action of different causes of action against different defendants. In Sadler v The Great Western Railway Co [1896] AC 450 the House of Lords adopted that proposition as the ratio of a decision. 143 As explained in Compania Sansinena de Carnes Congelads v Houlder Brothers & Co Ltd [1910] 2 KB 354, after the decisions in Smurthwaite and Sadler the English Rules of Court were altered in 1896. Though the alteration to the rules made in 1896 was only to order 16, rule 1, as the Annual Practice 1935 says at page 214, "the alteration made in this rule has had an important effect upon the construction of r 4". The effect of the alteration (as described in the headnote to Compania Sansinena) was that the power to join several defendants in the one action: "… is not confined to cases in which the causes of action alleged as against the several defendants are exactly identical, but extends to cases where the subject matter of complaint as against the several defendants is substantially the same, although the causes of action as against them respectively are, technically, different in form, and the several liabilities alleged against them respectively are to some extent based on different grounds." 144 A rule of substantive law developed, from the rather sparse authority of Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337, whereby one tortfeasor who had been held liable to the plaintiff could not seek contribution from others who had caused the same damage. That rule applied between both joint tortfeasors and several tortfeasors: The Koursk [1924] P 140 at 158. In the course of the 19th century, several exceptions to that rule developed, and in Palmer v Wick and Pulteneytown Steam Shipping Co Ltd [1894] AC 318, members of the House of Lords regarded the doctrine of no contribution between tortfeasors as so deficient of a sound basis in principle that they refused to extend it to Scotland. That course of authority is set out in more detail in Belan v Casey [2003] NSWSC 159; (2003) 57 NSWLR 670 at [88]-[106]. 145 There was, from May 1929, an order XVIA of the English Rules of the Supreme Court, which established a third party procedure. Rule 12(1) provided that where a defendant claims against another defendant (inter alia) that he is entitled to contribution or indemnity, the defendant making the claim may without any leave issue a notice making such claim. Rule 1 enabled a similar notice to be served where, in an action, a defendant claimed against any person not already a party to the action, that he is entitled to contribution or indemnity. In the then state of the law, that third party procedure could be availed of between tortfeasors only in the exceptional circumstances in which the common law permitted an action for contribution between tortfeasors. However, it was a procedural device ready at hand if the law were to be changed to permit contribution between tortfeasors in more than the exceptional circumstances in which it was then allowed.

The Law Revision Committee Report 146 It was against that background that the Law Revision Committee in England presented its Third Interim Report (Cmd 4637) in July 1934. Para 1 of that Report recorded that the Committee had been asked to report upon four specific topics, one of which was: "(i) The doctrine of no contribution between tort-feasors. ( Merryweather v Nixan , with special reference to the remarks of Herschell LC in Palmer v Wick and Pulteneytown Steam Shipping Company Limited [1894] AC 318.) 147 The authors stated the law in orthodox fashion in para 3: "When two or more persons jointly commit a wrongful act, the person injured can recover the full amount of his damage from any one of them. If he does so, the wrongdoer who has paid the whole damage has to bear the whole loss and the other wrongdoers escape liability by reason of the rule of the common law that there can be no contribution between joint tort-feasors." 148 They recognised, in para 4, that this "rule" is one that had come to be subject to various exceptions. They recommended, in para 7, that the common law rule should be changed by giving "a right of contribution in the case of wrongs as in cases of contract". They continued: "If this were done, joint tort-feasors in the strict sense would be given a right of contribution inter se. We think, however, that such a right might with advantage also be conferred where the tort is not joint (ie, the same act committed by several persons) but where the same damage is caused to the Plaintiff by the separate wrongful acts of several persons. This is the position which frequently arises where the plaintiff sustains a single damage from the combined negligence of two motor car drivers, and recovers judgment against both. Unless engaged in a common design or unlawful purpose, eg racing, such persons are not technically joint tort-feasors. The case of The Koursk ([1924] P 140) shows that where independent acts of negligence result in one injury, the cause of action against each Defendant is separate and distinct; but there is no contribution between the Defendants. Scrutton LJ, quoting from Clerk and Lindsell and from Sir John Salmond with some slight amendment, at p 156, said: " ' Persons are said to be joint tort-feasors when their respective shares in the commission of the tort are done in furtherance of a common design … but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end' ; still more so when there is not even a similarity of design, but independent negligences accidentally resulting in one damage. This is the view of Sir John Salmond: 'Persons are not joint wrongdoers simply because their independent acts have been the cause of the same wrongful damage' . Salmond on Torts, 5 th Ed pp 84-5. I myself should put 'wrongful' before 'acts' instead of before 'damage' ." Lord Justice Scrutton added at p 158: 'If there is no contribution between joint tort-feasors, there is of course no contribution between independent tort-feasors, and the phrase ' no contribution between joint tort-feasors ' is equally true if read 'no contributions between tort-feasors' ." We think therefore that when two persons each contribute to the same damage suffered by a third the one who pays more than his share should be entitled to recover contribution from the other." 149 They recommended, in para 8, that the mode of apportionment should be in the discretion of the judge, rather than equal. 150 After considering some other matters not presently relevant, the Committee members continued, at para 11: "In altering the law on this subject it would seem also desirable to alter the rule that the tort is merged in the judgment even though there is no satisfaction - with the result that a Plaintiff who has sued one tort-feasor to judgment and recovered nothing cannot afterwards proceed against another person equally liable ( Brinsmead v Harrision LR 6 CP 584: 7 CP 547). The merits of such a rule were stated by the Exchequer Chamber, in the case cited, to be that it prevented multiplicity of actions, and that a second jury might award different damages from the first. It is submitted that the rule might be altered in respect of an unsatisfied judgment only, with the provision that a plaintiff should not be entitled to obtain by execution, in the aggregate, more than the amount awarded in the first judgment. The case of "The Koursk", referred to above, shows that the rule does not apply to the case of a judgment against one of several independent wrong-doers whose acts have caused the same damage, but only to judgments against one joint tort-feasor strictly so called. …" 151 Para 12 of the Report was: "We suggest that in any amendment it should be made clear that the plaintiff is not to be obliged to sue more than one joint tort-feasor, and is still to be entitled to recover the whole of his damages from anyone of the joint tort-feasors." 152 The suggested recommendations, so far as relevant, were: (I) A judgment recovered against one or more persons in respect of an actionable wrong committed jointly shall not, while unsatisfied, be a bar to an action against any others liable jointly in respect of the same wrong. Provided that the Plaintiff shall not be entitled to levy execution for, or to be paid, a sum exceeding, in the aggregate, the amount of the first judgment obtained against any of the persons so liable, nor to recover the costs of any subsequent action, unless the Judge before whom it is tried is of opinion that there was reasonable ground for bringing it. (II) Any person who is adjudged to be liable to make any payment or who suffers execution under a judgment recovered against him in respect of an actionable wrong may recover contribution, whether the wrong be a crime or not, from any other person who has been made liable in respect of the same wrong, or who, if sued separately, would have been so liable, unless the person against whom contribution is sought proves that he is by law entitled to be indemnified in respect of his liability by the person seeking contribution. It shall be for the Judge to decide what the amount of the contribution is to be, or whether complete indemnity is to be given. (III) Where two or more persons have committed independent wrongful acts which have been the cause of the same damage they shall have the same right to contribution among themselves but subject to the same exception as in the case of persons liable in respect of the same wrong. (IV) If a party to an act alleges that if liable to pay damages he would have a right to contribution from any other person all questions arising between him and such other person relating thereto may be determined by means of third party procedure as prescribed by Rules of Court or in a separate action." 153 Of these recommendations, (I) deals only with joint torts, not with several torts. The first sentence of (I) revokes the rule that a plaintiff who has sued one joint tortfeasor to judgment cannot afterwards proceed against another of the joint tortfeasors. A practical problem that arose from the common law rule about merger of a joint tort in the judgment, was that difficulty in executing on a judgment obtained against less than all of numerous joint tortfeasors meant that no money might actually be recovered from any of the tortfeasors, or less than the full amount of damages awarded might actually be recovered. The proviso in (I) clearly aimed to remove that insolvency risk by permitting an action to be brought against one or more of the joint tortfeasors who had not previously been sued, but on conditions that limited the amount that could be recovered (in the sense of the amount that the plaintiff could actually receive) from all the judgments obtained against all the joint tortfeasors to the amount of the first judgment obtained. This language left it open for judgment in the second action that was brought against a joint tortfeasor to be given for an amount that exceeded the amount of the first judgment given against the joint tortfeasor. However, obtaining that extra amount in the judgment sum would be of no practical use, as there was a prohibition on levying execution for, or being paid, that excess. Further, even if the amount of the second judgment was equal to or less than the amount of the first judgment, the only amount the plaintiff was entitled to be paid pursuant to the second judgment was the difference between the amount awarded by the first judgment and the amount actually recovered under the first judgment. As well, recommendation (I) stated that there should be a costs sanction against bringing any such second action against a joint tortfeasor, in that it was only if the plaintiff convinced the judge that it was reasonable to have brought the action that the plaintiff could recover costs of the second action. 154 Recommendation (II) was to create a right of contribution between joint tortfeasors (and only between joint tortfeasors). That is because the right to contribution that is recommended is that it be recoverable "from any other person who has been made liable in respect of the same wrong or who if sued separately would have been so liable". The phrase "or who, if sued separately, would have been so liable" refers to the possibility, created by the recommendation (I), that it be possible to sue one joint tortfeasor in one action, and another joint tortfeasor in another action. 155 Para (III) of the recommendations is the first place where the recommendations deal with several tortfeasors. It proposes creating a right of contribution amongst several tortfeasors. The recommendation that that right of contribution amongst several tortfeasors be "subject to the same exception as in the case of persons liable in respect of the same wrong" refers back to the exception to the right of contribution between joint tortfeasors that had been recommended in recommendation (II), namely, that the right of contribution exist "unless the person against whom contribution is sought proves that he is by law entitled to be indemnified in respect of his liability by the person seeking contribution". 156 Thus, no recommendation was made that, when there were successive actions against several tortfeasors liable for the same damage, the amount of damages that could in total be collected should not exceed the amount that had been awarded in the first action. 157 The Committee, in para 11, had referred to The Koursk as authority for the proposition that the rule that a joint tort merges in a judgment given for that tort does not apply to a judgment against one of several independent wrongdoers whose acts have caused the same damage. In The Koursk, the plaintiff's ship, the Itria, had sunk, when travelling in a convoy during the First World War, after another ship, the "Clan Chisholm" had collided with it. That collision had been preceded by another collision between the Koursk and the Clan Chisholm. Cross-actions between the Koursk and the Clan Chisholm, and an action by the plaintiffs' ship against the Clan Chisholm were all heard together. In the cross-action between the Koursk and the Clan Chisholm, the Koursk was found two-thirds to blame and the Clan Chisholm one-third to blame. In the action by the plaintiffs' ship against the Clan Chisholm it was held that, as between them, the Clan Chisholm was wholly to blame (141). The Clan Chisholm established a limitation fund, which was exhausted (146). The plaintiffs then proceeded with an action that they had begun against the Koursk. A trial judge in that second action held that the Koursk was liable to the plaintiffs, because the plaintiffs' damage had been caused by two separate acts of negligence (142). 158 As Scrutton LJ put it at 153-4: "The Itria got judgment against the Clan Chisholm for the whole of the damage, but the Clan Chisholm's limitation of liability would prevent the Itria from recovering a great part of her damage against the Clan Chisholm . The Itria therefore proceeded against the Koursk , as soon as she ceased to be a requisitioned ship, to recover some part of the remainder of her damage." 159 The reported decision in the Court of Appeal relates solely to whether the Koursk and the Clan Chisholm were joint tortfeasors or several tortfeasors concerning the damage that had been inflicted on the Itria. If they had been joint tortfeasors, the cause of action of the Itria against the Koursk would have disappeared by merger in the judgment the Itria had obtained against the Clan Chisholm, and the fact that that judgment had not been paid in full because the Clan Chisholm had established a limitation fund would be of no moment. The point for the present purposes, is that the result of the case (which the Commissioners apparently accepted as being correct) was that in the action against the Koursk it was possible under the existing law for the plaintiff to recover a judgment, notwithstanding that it had received a judgment for the full amount of its liability against the Clan Chisholm.

Application of Section 5(1)(b) to Several Tortfeasors 160 Notwithstanding that the Report of the Commissioners had said nothing about it, section 6(1)(b) of the UK Act (and hence section 5(1)(b) of the NSW legislation) clearly imposed upon several concurrent tortfeasors, as well as joint tortfeasors, the limitation that the sums recoverable under all the judgments given shall not in the aggregate exceed the amount of damages awarded by the judgment first given, and the same costs sanction as the Commissioners had recommended concerning a second or successive action on a joint tort. That is clearly so from the words "(whether as joint tort-feasors or otherwise)" appearing in section 6(1)(b). Glanville Williams, op cit, page 39, recognises that: "Section 6(1)(b), unlike s 6(1) (a), applies not merely to successive actions against joint tortfeasors but to successive actions against several concurrent tortfeasors. In the latter respect the provision curtails the plaintiff's common-law rights. At common law judgment against one several concurrent tortfeasor did not bar an action against another, and in the second action the plaintiff might obtain a larger judgment than in the first. In such a case the plaintiff could presumably have required payment of the whole of the second judgment if the first were unsatisfied, or, if the first were satisfied, of the amount by which the second exceeded the first. Now, by the Act, the second judgment cannot effectively be for more than the first."

The English Second Reading Speech 161 The Second Reading Speech in the House of Commons for the UK Act was given by the Attorney-General, Sir Thomas Inskip on 8 July 1935 (United Kingdom, Parliamentary Debates, House of Commons, 8 July 1935, series 5, vol 304, cc 117-126). The entire speech, including the part that dealt with important reform concerning the law related to married women, took twelve minutes. The part of the speech dealing with section 6 made clear that the legislation was the result of the activities of the Law Revision Committee. It said nothing about any of the recommendations of the Committee being modified or extended. However, it also said nothing about why section 6(1)(b) made express provision imposing limitations on recoverability of amounts under judgments, and costs, concerning second or subsequent actions brought against a tortfeasor liable in respect of the same damage, who was not a joint tortfeasor. 162 Thus, insofar as section 6(1)(b) of the UK Act imposes limits on the recoverability of damages and costs in second or subsequent actions against a several concurrent tortfeasor who had caused the same damage, it appears to have removed a right that previously existed at common law. Removing that right had not been recommended by the Law Revision Committee, and was not referred to or explained in the Second Reading Speech.

The New South Wales 1946 Legislation 163 When the Law Reform (Miscellaneous Provisions) Act 1946 was enacted in New South Wales, it included some provisions that had not been included in the English version of the legislation. Those extra provisions included: "2(1) In an action of tort in any court the following provisions shall notwithstanding anything contained in any Act which regulates the procedure and practice of the court, have effect:- (a) All persons may be joined as defendants against whom the right to any relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative where if separate actions were brought against such persons any common question of law or fact would arise, and judgment or verdict and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment. (b) It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest. (c) Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties. (d) No action shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. (e) The plaintiff may unite in the same action several causes of action, but if it appear to the court that any such causes of action cannot be conveniently tried or disposed of together, the court may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof. 2(2) The jurisdiction conferred on a court by paragraph (b) or paragraph (e) of subsection one of this section may be exercised by a judge of the court sitting either in court or in chambers, or in the case of a court of petty sessions exercising jurisdiction under the Small Debts Recovery Act , 1912 , as amended by subsequent Acts, by any stipendiary or police magistrate or any two justices. 3(1) Any court shall have power to grant to any defendant in respect of any right claimed or alleged by him all such relief relating to or connected with the original subject of the cause or matter, claimed in like manner against any other person, whether already a party to the cause or matter or not, who has been duly served with notice in writing of the claim pursuant to rules of court or any order of the court, as might properly have been granted against that person if he had been made a defendant to an action duly instituted by the same defendant for the like purpose. 3(2) Every person served with any such notice as aforesaid shall thenceforth be deemed a party to the cause or matter with the same rights in respect of his defence against the claim as if he had been duly sued in the ordinary way by the defendant." (emphasis added)

Section 4 enabled the making of rules of court, and is not material for present purposes. 164 Sections 2 and 3 were needed in New South Wales because, to that time, the procedural reforms that had been effected in England by Order 16 rule 4 and Order 16A of the English Rules of the Supreme Court were absent from New South Wales rules of procedure. Sections 2 and 3 have since been amended, to make them accord with changes that have been made to the laws governing procedure in the courts, but the detail of those amendments is not presently relevant.

The NSW Second Reading Speech 165 The Second Reading Speech for the New South Wales legislation was given in the Legislative Assembly by the Attorney-General, Major Martin, on 20 March 1946. In explaining section 5, the Attorney-General gave an account of the difference between joint and several tortfeasors, and explained the rule whereby a judgment against one of a number of joint tortfeasors had the effect that the cause of action against the others was merged in that judgment. He continued, at 2808-2809: "… The consequence is that if a plaintiff happens to sue a defendant who is without means or disappears, he cannot then take independent action against the defendant jointly liable. This will be altered by the bill, which lays it down that judgment recovered against one tort-feasor is not to be a bar to an action against any other person jointly liable with him. That is the substance of paragraph (a) of subclause (1) of clause 5. Concurrent with this is another rule that if a person recovers full damages from one of two persons who have jointly committed a wrongful act against him, the wrongdoer who has paid the whole damage must bear the whole loss, and the other wrongdoer escape liability. The party who has paid cannot recover any indemnity or contribution from his joint tortfeasors. This is in contradistinction to the rule in contract where, if one person liable under the contract is called upon to perform it in full or discharge more than his proper share, he can, as a general rule, call upon persons jointly, or jointly and severally, liable with himself to contribute to the liability which he has incurred. Paragraph (c) of subclause (1) remedies the position as to torts and allows a tort-feasor to recover contribution in respect of any damages he has paid or is liable to pay. The amount of this contribution is to be determined by the court, in accordance with what is regarded as the proper degree of liability. However, the power that is given a plaintiff to sue a second defendant , where he has recovered judgment against the first, but has not recovered the fruits of the judgment, is subject to some limitation. It is not proposed that plaintiffs should be permitted to take an action against each defendant liable, and recover a separate set of damages against each and separate costs in each action. To this end, whilst the plaintiff is completely free to take the second action, it is provided in subclause (b) that the amount of damages he may recover shall in no case exceed in all the amount awarded him in the first action. Likewise, except where the court expressly allows him, he is not entitled to any costs for the second action. One may anticipate that the court would allow costs where it was quite satisfied that the plaintiff had made a proper choice in suing the first defendant, but that, perhaps because he had disappeared and left no assets in which the plaintiff could execute, it was quite proper that the plaintiff should bring a second action." (emphasis added) 166 This speech does not give any recognition to the fact that section 5(1)(b) imposes a limitation on the recovery of damages and costs in second or subsequent actions against a several concurrent tortfeasor who had caused the same damage, let alone give any reason why such legislation was desirable.

The Argument for the Decision Below 167 Mr Leopold SC, counsel for the Respondents, submits that the judge acted correctly in dismissing the 2005 Action. He submits, correctly, that even though the Particulars of Disabilities in the Statement of Claim in the 2007 Action had originally been cast in somewhat different language to the language used to identify the disabilities in the 2005 Action, the amendment that was made by the Terms of Settlement to the Statement of Claim in the 2007 Action (para [118] above) made quite clear that every conceivable type of injury that the plaintiff might have suffered in consequence of the alleged wrongful acts of the State was within the scope of the damage for which she claimed in that action. Mr Leopold submits that the 2005 Action thus claimed damages for any injury that the Appellant had received at the hands of the Respondents, damages had been awarded for all those injuries, and those damages had been paid in full. He submits that if the Appellant were to continue her action against the Respondents, and were to obtain a judgment against one or both of them in it, the effect of section 5(1)(b) was that, whatever might be the monetary amount of damages that the Court awarded, the Appellant could not levy execution for, or actually be paid, any sum at all, because she had already been paid in full the amount of the judgment obtained against the State. 168 When the proceedings are ones that would not result in the Appellant actually receiving any money, even if she were to have a judgment given in her favour in them, they are frivolous or vexatious, and/or an abuse of the process of the court, and so were appropriately struck out under UCPR 13.4(1). This is in substance the same process of reasoning as that which the judge in the court below adopted. 169 Ms Norton SC, counsel for the Appellant, submits that there are numerous flaws in the argument. Before turning to consider those submissions, I should first give an account of a case of central importance, the decision of the High Court in Baxter.

Baxter 170 Baxter involved a single set of proceedings brought by the client of a firm of solicitors against an employed solicitor who had negligently carried out legal work for the client, and the principal of the firm. The client settled the proceedings against the principal for a sum of money significantly less than had been claimed, and on a basis that the proceedings against the employed solicitor would be continued. 171 The employed solicitor argued that the action against him should be terminated because section 5(1)(b) prevented the recovery against him of any greater sum than had been awarded against the principal. That argument depended upon the claim made against the employed solicitor, and the claim made against the principal, each being regarded as a separate "action" within the meaning of section 5(1)(b), even though they were both named as defendants in the one set of legal proceedings. That construction of "action" was rejected. Gleeson CJ and Callinan J (with whom Gummow and Hayne JJ agreed concerning section 5(1)(b)) said, at [22], that: "… Both in England, and in New South Wales, at the end of the nineteenth century and the beginning of the twentieth century, the word 'action', in its proper legal sense, was 'a generic term ... [that] includes every sort of legal proceeding': Re Carter Smith; Ex parte Commissioners of Taxation (1908) 8 SR (NSW) 246 at 249, per Street J. The Common Law Procedure Act 1899 (NSW) used the term in that sense (eg, ss 4(1), 6)." 172 Gleeson CJ and Callinan J said, at [29], concerning section 5(1)(b), "At first sight, it appears to be directed to the problem of multiplicity of actions". They noted, at [32]: "Gibbs CJ, in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 457, 458, referring to Wah Tat Bank [ v Chan [1975] AC 507], repeated that par (b) 'clearly contemplates a number of actions and not a single action' and that it 'was designed to prevent a multiplicity of actions'." 173 They concluded, at [34], "The words of the paragraph should be given their ordinary meaning, as applying to cases where there is more than one action, that is to say, more than one proceeding." 174 Though their Honours did not rely on it, further justification for treating "action" in section 5(1)(b) as relating to a procedural attribute of the claim brought, rather than to the substance of the legal right or rights claimed, can be found in the repeated use of "action" in sections 2 and 3 of the 1946 legislation, in a sense that refers to matters of procedure. (I have italicised "action" in reproducing sections 2 and 3 at [163] above.) 175 In Baxter it was of fundamental importance for the applicability of section 5(1)(b) that the claim against the principal and the claim against the employed solicitor had been made within the one action. It was precisely because those claims were within the one action that a precondition for the operation of section 5(1)(b), that it operates "if more than one action is brought in respect of that damage …", did not apply, and hence section 5(1)(b) as a whole did not apply to prevent the action against the employed solicitor continuing. 176 There is no issue in the present case that the 2005 Action and the 2007 Action are each separate "actions" within the meaning of section 5(1)(b). Indeed, the written submissions of the Appellant expressly state: "In the present case there is more than one action and thus the terms of Section 5(1)(b) of the Act may become relevant." 177 No argument was put in the present case that the process of listing the 2005 Action and the 2007 Action for hearing together was sufficient to make them the one "action" within the meaning of section 5(1)(b). 178 In his discussion of section 5(1)(b) in Baxter, Kirby J (with whom Gummow and Hayne JJ also agreed concerning section 5(1)(b)) referred, at [72], to the words of section 5(1)(b) having been described by Gibbs CJ in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 458 as being "elliptical and somewhat obscure". Kirby J favoured, at [73], "applying a purposive construction to the meaning of an uncertain expression in the Act". He also said, at [74] that there was an applicable: "… consideration of legal policy. Without clear legislative provisions requiring a contrary decision, a court should not readily come to a conclusion about ambiguous provisions of a statute … that would inhibit the early settlement of litigation as between those parties to a dispute who are agreed, even if they do not represent all of the parties to the litigation." 179 He said, at [75]: "Unless the Act clearly obliges a different conclusion or unless a clear principle of the common law or of equity mandates the opposite result, it is ordinarily desirable that parties should be able to settle severally, as between each other, the issues they have brought to court for resolution according to law. Any inhibition upon that attribute of personal and economic freedom has to be clearly justified and based on statutory language or legal authority that is certainly applicable." 180 The immediate purpose of those remarks was to deal with the particular argument concerning the construction of section 5(1)(b) that was advanced. They were reasons why "action" in section 5(1)(b) should not extend to the situation where two different legal claims were brought, against two different people, within the one legal proceeding. Notwithstanding that immediate purpose, they state a general principle by reference to which section 5(1)(b) is to be construed. 181 Kirby J noted, at [85], that the report of the Law Revision Committee that led to the 1935 English legislation: "…makes it clear that the general object of the legislation was, relevantly, to abolish the old rule that release of one joint tortfeasor automatically released the other so far as the law was concerned. This is the work that s 5(1)(a) of the Act performs. The meaning of s 5(1)(b) must be derived in a context in which that was a principal purpose of the legislative reform. The terms of s 5(1)(b) must be read accordingly. It would be to undermine the obvious objectives of s 5(1)(a), read with the Committee's report, to construe s 5(1)(b) in such a way as to restore, or preserve, the anomalous position of joint tortfeasors, unless the language of par (b) was intractable and allowed no other interpretation." 182 Kirby J held, at [86], that the literal meaning of section 5(1)(b) favoured a view that separate "actions" had not been brought against the employed solicitor and the principal. He said, at [86]: "…'action' in par (b) is a reference to a proceeding. This was the normal meaning given to the word both in England and Australia, both in 1935 (when the English legislation was enacted) and in 1946 (when the relevant Australian legislation was enacted by the Parliament of New South Wales). The word was then used, as it is now, both in legislation and in common speech, to describe a proceeding commenced by an originating process in a court, particularly one amenable to claims at common law." 183 His Honour then turned to the purpose of the provision as an aid to construction, saying, at [87]: "This interpretation also accords with a view of par (b) that is consistent with the object given effect by par (a) of s 5(1) of the Act. It confines the operation of par (b) to the two subjects with which its language specifically deals in the closing words - namely control of the aggregate recovery so as to prevent double dipping by reason of the reform effected in par (a); and control of the recovery of multiple costs in several actions against concurrent tortfeasors where it would have been reasonable for the plaintiff to have brought one action, that is one proceeding. Viewed in this light, par (b) does not contradict the reform in par (a). On the contrary, it is a supplementary provision designed to protect defendants from the risks of excessive recoveries by multiple actions (that is proceedings) which the reform in par (a) permitted for the first time in the case of joint tortfeasors." 184 As well as whether section 5(1)(b) prevented the continuance of the action against the employed solicitor, Baxter also considered a completely separate question, namely whether the rule against double satisfaction prevented the continuance of the action against the employed solicitor. Gleeson CJ and Callinan J at [49], Gummow and Hayne JJ at [69], and Kirby J at [90] all held that the rule against double satisfaction would not, in the circumstances of the instant case, prevent the action against the employed solicitor proceeding. A significant part of the reason for that conclusion was because the terms of the settlement with the principal made clear that the plaintiffs were not accepting the amount of judgment against the principal in full satisfaction of the loss or damage that they said they had incurred.

Statutory Purpose Not Applicable Here? 185 One argument that Ms Norton puts is that the only circumstance in which section 5(1)(b) operates is where the amount of the settlement is such that "any subsequent action would result in double dipping or double compensation on behalf of the injured party." The Terms of Settlement in the 2007 Action expressly stated that they were a compromise based on liability issues and quantum issues, and clearly sought to preserve the ability of the Appellant to continue to maintain the 2005 Action. Ms Norton points out, correctly, that neither of these factors was present in the factual situation that this Court examined in Bracks v Smyth-Kirk. 186 Further, Ms Norton submits that there was a very real capacity for the damages recovered in the 2007 Action for the damages that arose from the actions of the Respondents not to be the full measure that the Appellant could recover for that damage by suing the Respondent. One reason was that the terms of settlement of the 2007 Action had expressly stated that they were a compromise on both liability and quantum. The Appellant could have sued the State successfully concerning injuries that the Respondents had inflicted on her only if she could first succeed in showing that the State had been negligent in the circumstances in which she had sustained her initial injury, in December 1999. It is quite common for litigation in a case that might have some problems concerning liability to settle on a basis where the defendant pays money, but less money than the defendant would have paid had liability been clear. 187 A second reason was because the 2007 Action was one brought by an employee against an employer, and the damages that were recoverable in it were limited by section 151G Workers' Compensation Act to damages for past economic loss due to loss of earnings and damages for future economic loss due to deprivation or impairment of earning capacity. Heads of damages that were not recoverable against the State included damages for economic loss (whether past or future) due to the cost of medical treatment, and damages for pain and suffering. In contrast, any action against the Respondent would have damages assessed in accordance with the Civil Liability Act 2002, which permits recovery of damages for a more extensive range of heads of damage. I should say that there were some times in Ms Norton's oral submissions when I thought she was disclaiming this second reason, but as I am in some doubt concerning her final position on it I will deal with it. 188 Ms Norton submits that the judge below should not have proceeded to give summary judgment when the factual question of whether continuance of the action would result in double compensation had not been determined.

"Double Dipping" Rationale for Section 5(1)(b)? 189 The basis on which it is contended that section 5(1)(b) operates only when the subsequent action "would result in double dipping or double compensation" is submitted to arise from the judgment of Kirby J in Baxter. When both Gummow and Hayne JJ agreed with Kirby J concerning section 5(1)(b), and Baxter was a case in which a five-member bench sat, the remarks of Kirby J concerning section 5(1)(b) have the support of a majority of the court. 190 Kirby J's judgment at [87] (set out at para [183] above) uses the expression "double dipping" in explaining the purpose of section 5(1)(b). However, in my view, when para [87] of Kirby J's reasons is read in totality, it does not justify a conclusion that the only recoveries pursuant to a second action that section 5(1)(b) prohibits are ones where such a recovery would result in "double dipping" by the injured party. First, the opening phrase of para [87], "[t]his interpretation also accords …" shows that the purpose of the discussion in para [87] is to justify, by reference to the purpose of section 5(1)(b), an interpretation in which "action" means a legal proceeding. Second, the factual situation that was being considered in Baxter was one where the principal and the employed solicitor were joint tortfeasors, because the only liability of the principal arose by virtue of his vicarious liability. The type of control of double dipping that Kirby J is referring to is double dipping "by reason of the reform effected in para (a)" - a reform that applies only concerning joint torts. The final sentence of para [87] also makes clear that Kirby J's focus in that paragraph was on the situation of joint tortfeasors. Thus, his Honour was not addressing the situation relevant to the present case, of the circumstances in which para (b) applies concerning several tortfeasors against whom separate actions have been brought. That provides a sufficient reason why this submission of Ms Norton should fail. However, there are other reasons why it fails.

Any Significance in Appellant's Settling 2005 Action on Terms Contemplating Continuing to Sue Respondents? 191 While it is quite clear that the terms of settlement in the 2007 Action show an intention on the part of the Appellant to continue her action against the Respondents, I do not see that that intention has any relevance for the application of section 5(1)(b). The notes included in paras 6 and 8 of the Terms of Settlement might form a convenient way of recording the terms of an agreement that has been reached between the Appellant and State, but they do not affect any of the matters that are relevant to section 5(1)(b). The effect of section 5(1)(b), namely imposing a limit on the aggregate amount of the sums recoverable under judgments given in two actions by way of damages, depends on

• whether damage has been suffered by someone as a result of a tort - whether more than one action has been brought in respect of that damage by or on behalf of the person to whom it was suffered against tortfeasors liable in respect of the damage - whether there is any "amount of the damages awarded by the judgment first given" , and if so how much it is.

The intention of the person bringing the action has nothing to do with any of those factors. That, for whatever reason, there has been undercompensation in the amount of damages awarded by the judgment first given likewise has nothing to do with any of these factors. 192 There was extended consideration in Baxter of whether the terms of settlement between the client and the principal showed an intention on the part of the client to continue his action against the employed solicitor - see paras [43]-[46], [66], [69],and [91]-[92]. However all of that discussion was in the context of the application of the rule against double satisfaction, not of the application of section 5(1)(b). The terms of settlement between the client and the principal were relevant to double satisfaction in Baxter because they bore upon whether the amount paid by the principal had been accepted by the client on the basis that it was a full satisfaction of the client's loss. No argument of double satisfaction is raised in the present case.

Effect of Measure of Damages Recoverable Against State Being less Than Measure Recoverable Against Respondents 193 In my view the fact that the measure of damages recoverable against the State is less than that recoverable against the Respondents, concerning the extent to which the appellant's condition was worsened by the intervention of the Respondents, is of no significance for the operation of section 5(1)(b). 194 The UK Act came into existence in a thought world where it was assumed that the objective of the law of torts, in so far as it provided compensatory damages (as opposed to exemplary or aggravated damages), was to provide a wronged plaintiff with the amount of money that would be full compensation for the wrong he or she had suffered, and where it was assumed there could be only one measure of full compensatory damages. Juries or trial judges might differ in the figure they arrived at for full compensatory damages, but in principle there was only one measure of compensatory damage. The assumptions were stated by Samuels JA in Barisic v Devenport [1978] 2 NSWLR 111 at 139-140: "At common law, the liability of concurrent tort-feasors causing the same damage was in solidum, each of them being responsible to make good the whole of the damage caused. In the case of joint tort-feasors the plaintiff recovered one judgment against all; and in the case of several tort-feasors separate judgments passed against each; but, because their liability also was solidary, in the same amount. These principles which are elaborately discussed in Glanville Williams, Joint Torts and Contributory Negligence, particularly at pp. 5, 23, 63 and 72 in pars. 3, 8, 21 and 22, were affirmed in Speirs v Caledonian Collieries Ltd : [1957] SR (NSW) 483; 74 WN 23." 195 Both of those assumptions have now been falsified by legislation that limits the amount of damages recoverable in tort by particular categories of plaintiff against particular categories of defendant, and provides different measures of compensation for different categories of plaintiff against different categories of defendant. Even so, section 5(1)(b) must operate in accordance with its terms. The "amount of the damages awarded by the judgment first given" limits the total of the sums recoverable under all judgments for the one damage, regardless of the manner in which the amount of the damages awarded by the judgment first given might have been calculated. 196 That was recognised by Taylor J in Unsworth v Commissioner For Railways (1958) 101 CLR 73. Unsworth was an action brought under the Queensland equivalent of Lord Campbell's Act by the widow of a man who had been killed while a passenger in a car that had collided with a train at a level crossing. She sued both the driver of the car, and the Commissioner for Railways. The Commissioner for Railways had the benefit of the statutory limitation of liability of £2000. A jury assessed the damages at substantially more than £2000, and held that the Commissioner was 85% responsible. While the question for decision concerned the manner in which contribution between the driver and the Commissioner should operate, Taylor J made some remarks that are relevant to the present case. He said, at 92-93: "The difficulty results, of course, from the fact that in drafting ss. 5 and 6 a situation of the character which now presents itself was not contemplated. These provisions take no account of the possibility that the liability of one of two tortfeasors to an injured party may be limited whilst that of the other is not and, although it may be thought easy to perceive reasons why the commissioner's liability to make a contribution should not exceed the amount of his original liability, one may seek in vain to discover in the language of ss. 5 and 6 any clearly expressed intention that this should be so. On the contrary it is, one may think, a problem to which the provisions pay no attention whatsoever … These are, however, not the only anomalies produced by the language of ss. 5 and 6 in cases such as the present. For instance the effect of sub-ss. (a) and (b) of s. 5 is to preserve to an injured person a right to maintain a claim for damages against one of two joint tortfeasors notwithstanding that judgment has already been recovered against the other. But s. 5 (b) provides that in any such case 'the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of damages awarded by the judgment first given'. The same restriction applies of course where successive actions are brought against tortfeasors whose separate acts of negligence have produced the same damage. Accordingly if the plaintiff's action had been brought against the commissioner only her subsequent rights against the appellant to recover damages would have been restricted to the sum of £2,000. It may, I think, fairly be said that no such anomalous result was intended but it is a result which the language of the sub-section clearly produces." 197 In South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389 (a decision of the South Australian Full Court) a worker had brought an action for damages against his employer for a work-related injury, and had obtained a judgment against the employer. As explained by Williams J (with whom Olssen and Duggan JJ agreed) at [6], South Australian legislation "confines the employer's liability at common law to 'non-economic loss' (as defined) and it also imposes a monetary ceiling upon that liability." The quantum of damages that the worker obtained by suing the employer was accordingly limited. After the worker had been paid the amount of those damages, he began a second action against the State, alleging that an employee of the State had been supervising the work in the course of which he had been injured. That action was "based essentially upon the same set of facts which gave rise to the earlier claim" [14]. In the second action he sought to recover the amount by which the damages recovered against his employer fell short of a full common law measure of damages. 198 Section 25(1) Wrongs Act 1936 (SA) is in terms not materially different to section 5(1)(b) of the New South Wales legislation. A District Court judge dismissed an application by the State that the second action should be dismissed or stayed by reason of the judgment in the first action having been both recovered and paid. His reasoning was, in substance, that the limited heads of damages that were recoverable against the employer meant that the whole of the loss or damage suffered by the injured person had not been sought in the first action and therefore the second action did not seek to recover for the "same damage". 199 The Full Court reversed that decision, and held that the action should be stayed or dismissed ([38]). Williams J held, at [20], on the basis of Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 at 326-327, and Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527 that "Damage" "refers to the injury or harm wrongfully inflicted and not to damages and disabilities". Williams J also held at [34]-[35] that the two actions were brought in respect of the same damage, and (at [34]): "It is not to the point to suggest that the 'heads' of compensatory damage in the two actions can be distinguished. Nor is it to the point to argue … that different causes of action can be identified against the respective tortfeasors … The ability of the plaintiff to maintain the successive actions is qualified by a different consideration or factor, namely, whether or not it is the same harm which is the subject matter of each action. It does not matter that there are different causes of action for the same loss: see Jameson v Central Electricity Generating Board [2000] 1 AC 455] (at 472). Both claims are common in that they are with respect to the same damnum (sometimes called 'harm' or 'injury') although various damages may have been suffered under different heads. The damages so identified involved a different legal concept from the harm or injury to which I have referred and which is called 'damage' (as opposed to 'damages') in s 25(1)." 200 That reasoning is directly applicable to the present case. As Mountford is a decision of another Australian intermediate appellate court, I should follow it unless persuaded it is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. I am not of the view that Mountford is wrong. Indeed, in my respectful view it is correctly decided.

Ripper v Gatenby 201 Ms Norton places reliance on the decision in Ripper v Gatenby [2002] TASSC 45. In that case, the plaintiffs were the widow and daughters of a man who had been killed while a passenger in an aeroplane. The plaintiffs brought an action against the executors of the pilot, seeking damages under the Tasmanian equivalent of Lord Campbell's Act. Before that action came to trial they started a second action against an insurer that had issued a policy to an entity referred to as "Tasmanian Aero Club". The second action was supposedly brought pursuant to section 51 Insurance Contracts Act 1984 (Cth), but Blow J held at [22] that section 51 had not authorised the plaintiffs to bring that action against the insurer, because the pilot was not an "insured" within the meaning of the Insurance Contracts Act. The plaintiffs had, prior to the litigation the subject of the reported decision, consented to the second action being dismissed, with them paying an amount for the insurer's costs. The reported decision related, so far as presently relevant, to a contention by the executors, in the first action, that the Tasmanian equivalent of section 5(1)(b) and the dismissal of the second action had the effect that no damages were recoverable in the first action. 202 Blow J did not accept that submission. The basis for his Honour's conclusion, at [26], was that the provision: "… was intended by Parliament only to apply if some amount was awarded by way of damages in the first of two or more judgments. The words, 'the amount of the damages awarded by the judgment first given' reflect an unstated assumption that damages were in fact awarded by the judgment first given. If, as was the case with the consent judgment obtained by the insurer in the plaintiffs' second action, no damages were awarded, the factual situation to which s3(1)(b) was intended to apply does not exist, and s3(1)(b) has no application." 203 That reasoning is not applicable to the present case, where (subject to the point about whether a judgment resulting from the settlement counts as "damages awarded") an amount was awarded by way of damages in the first of the actions in question.

"Damages Awarded" Requires Judicial Assessment? 204 Another argument that Ms Norton advanced for the inapplicability for section 5(1)(b) was that it can operate only when there is an "amount of the damages awarded by the judgment first given", and that there can only be "damages awarded" when there has been a judicial determination concerning the amount of them. This is an argument that did not arise in Bracks, notwithstanding that the first judgment that the plaintiff in Bracks had received was by way of settlement of his action. 205 In opposition to that argument, Mr Leopold reminds us that a consent judgment is no less a judgment than one arrived at after a contested hearing. The status of a consent judgment is succinctly stated in Spencer Turner and Handley, Res Judicata (4th ed, LexisNexis 2009) at [2.16]: "A judgment (or order) by consent is a res judicata . The court is discharged from the duty of investigating or further investigating the matter and does not pronounce a judicial opinion; but at the request of the parties it gives judicial sanction and coercive authority to an agreement which, except by statute, could not otherwise operate as a bar. Judgments, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the cause of action sued on." 206 While that is undoubtedly correct, it does not answer the question of whether a consent judgment is one by which damages are "awarded", within the meaning of section 5(1)(b). 207 Support can be found for "awarded" requiring a judicial decision. The Shorter Oxford English Dictionary on Historical Principles (3rd ed), gives as meanings of "award" when used as a verb (which is the relevant part of speech, as "awarded" in section 5(1)(b) is the past participle of the verb)

"1. Trans. to decide after deliberation - 1725 2. to determine upon and appoint by judicial sentence - 1533 3. to adjudge ( to a person) - 1523 4. to sentence, appoint ( to do ) - 1650. To sentence, consign ( to custody, etc) - 1648." 208 It is the sense exemplified in The Merchant of Venice: "A pound of that merchant's flesh is thine. The court awards it, and the law doth give it." (Act IV, scene i). 209 The Macquarie Dictionary gives the following meanings of "award":

1. to adjudge to be due or merited; assign or bestow: to award prizes. 2. to bestow by judicial decree; assign or appoint by deliberate judgement, as in arbitration. - noun 3. something awarded, as a medal or prize. 4. Law a. the decision of arbitrators on points submitted to them. b. a decision after consideration; a judicial sentence. 5. Also, industrial award . a. the decision of an arbitrator regulating the future conduct of parties to an industrial dispute. b. the document embodying the findings of an arbitrator or industrial tribunal. c. what is awarded in terms of money, working conditions, etc., in such a document. See consent award . 210 While most of the meanings recognised in the Macquarie Dictionary require there to be deliberation by the person who does the awarding, not all of those meanings clearly require it. The meaning of "to bestow by judicial decree" is consistent with the meaning extending to a judicial decree that is the result of the consent of the parties. Such a meaning is also recognised by the inclusion of the reference to "consent award" - though the significance of that is lessened by "consent award" being a use of "award" as a noun rather than a verb, and also by the fact that that particular usage of "award" is a specialised term of Australian industrial arbitration practice that is unlikely to have been known to the English lawyers of the 1930s who drafted the UK Act. How the "assign or bestow" meaning relates to whether deliberation is required by the person who does the awarding is not completely clear. Though one might say that the dignitary who hands out the prizes on a school's speech day, but has made no decision about who will receive the prizes, is "awarding" them, that is a fairly stretched use, it would be more natural to say that he or she was "presenting" them. 211 Consideration of the meaning of the words of section 5(1)(b) leaves me with a preference, though not a strong one, for "damages awarded" referring to damages the amount of which a court has decided to award. It could be displaced if there were considerations of context, history or policy that favoured "damages awarded" extending to the amount of a consent judgment. 212 This is in accord with the principle that dictionary definitions have a real, though far from decisive, role to play in statutory construction. In Residual Assco Group Limited v Spalvins [2000] HCA 33; (2000) 202 CLR 629 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, at [27]: "In construing a statutory provision, we should always keep in mind what Learned Hand J said in Cabell v Markham 148 F 2d 737 (1945) at 739: "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." " 213 As well, in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 396-397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said: "The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [1996] 2 WLR 203 at 218; [1996] 1 All ER 545 at 560 [now [1996] AC 543 at 561] , a recent House of Lords decision, Lord Hoffmann said: 'The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence. ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.' " 214 However, it is not possible to gain any textual help in construing "damages awarded" from other provisions in the 1946 Act. This is partly because the only place where that expression appears, or the word "awarded" or any of its cognates appears, is in section 5(1)(b), and partly because there is nothing in the linguistic context or syntax in which the expression appears from which one can gain assistance in gathering the shade of meaning in which it is used. 215 There is an Australian case that is consistent with an "award" requiring judicial consideration. In Tanska v Transport Accident Commission [2000] VSC 56; (2000) 30 MVR 561 Warren J considered a situation where the plaintiff in litigation had been injured in a motor vehicle accident as a consequence of the negligence of Tanska. The motorist had received an amount of benefits under the Transport Accident Act 1986 (Vic) from the Transport Accident Commission. The motorist brought an action against Tanska, which settled on the basis that the plaintiff would receive a particular sum of money and costs, would retain all benefits paid to her by the Commission, and Tanska's insurer would be responsible for any liability that the plaintiff might have to repay to the Commission the amount of the benefits received. The Commission then successfully applied to be joined as a party to the litigation, and to recover from Tanska the amount of the benefits that the plaintiff had received. It claimed to have a right of recovery under section 93(11) Transport Accident Act, which provided: "(11) If damages are awarded in accordance with subs (7) or subs (9) in respect of the injury or death of a person, the court shall order the payment to the Commission- (a) in the case of damages awarded under subs(7) - (i) in respect of pain and suffering damages, of such part of the damages as is equal to the sum of payments by the Commission under s47 and s48 in respect of the injury; or (ii) in respect of pecuniary loss damages, of such part of the damages as is equal to the sum of payments by the Commission under s49, s50 and s51 in respect of the injury; or (b) in the case of damages awarded in accordance with sub-section (9), of such part of the damages as is equal to the sum of payments made by the Commission under this Act in respect of that death." 216 There was a definition in section 3(5) of that Act, whereby: "a reference to damages includes a reference to an amount paid under a compromise or settlement of a claim for damages and, except in s93, includes a reference to compensation and to an amount paid under a compromise or settlement of a claim for compensation, whether legal proceedings had been instituted or not but does not include a reference to an amount paid in respect of costs incurred in connexion with legal proceedings; ..." 217 Her Honour held, at [24]: "Whilst the Act does not define the expression 'award of damages' there is a compelling argument that notwithstanding the definition of "damages" in s3(5)(a) the use of that term in s93(11) connotes the giving of damages by way of court order. In argument to the contrary Mr Kaye for the Commission submitted that s3(5)(a) of the Act makes it plain that damages referred to in s93(11) includes damages paid under a compromise or settlement of a claim for damages. He submitted that in order that damages be 'awarded' for the purposes of s93(11) it is not necessary that the relevant damages be the subject of adjudication or judicial decree as otherwise the defined meaning of damages in s3(5)(a) could not be given effect. I do not accept this submission. If the intention of the legislature was to include in the expression 'damages' those damages awarded by a court there would have been no reason to use the expressions 'damages awarded' and 'award of damages' in s93(11). It would have been sufficient for the legislature to have limited the expression to 'damages' without any reference to 'award'." 218 However, Tanska involved a construction of the expression in the context of the particular statute in question, and cannot be decisive of the meaning of "damages awarded" in section 5(1)(b). 219 It is not possible to find assistance in ascertaining the purpose of the provision from extrinsic materials. As I have sought to show at paras [153]-[155], the Law Revision Committee did not make a recommendation that a limitation on recovery of damages and costs should apply other than so far as actions against joint tortfeasors were concerned. The limitation on recovery of damages and costs that the Law Revision Committee recommended so far as joint tortfeasors were concerned was a consequence of the recommended abolition of the rule in Brinsmead v Harrison, and thus was not directly applicable to several tortfeasors. 220 The Second Reading Speeches in both England and New South Wales say nothing about why the limitation on recovery of damages and costs applies to several tortfeasors who cause the same damage. The focus of the New South Wales Second Reading Speech is on how section 5 affects joint tortfeasors, not several tortfeasors. Insofar as the New South Wales Second Reading Speech gives a reason for the introduction of section 5(1)(b), it is that it is a limitation on "the power that is given a plaintiff to sue a second defendant, where he has recovered judgment against the first". That situation only applies so far as joint tortfeasors are concerned. Indeed, the Second Reading Speeches show no consciousness, on the part of either of the relevant Ministers, that the effect of section 5(1)(b), insofar as it applied to several concurrent tortfeasors, was to take away an existing right. 221 The objective of para (b) of the legislation is, as stated by Glanville Williams at page 39: "… to prevent injustice to a plaintiff who finds that the tortfeasor whom he has chosen to sue is insolvent. It is no part of the policy of the Act that a plaintiff who has sued one tortfeasor, and who is dissatisfied with the assessment of his damages by the court, should be allowed to sue the other tortfeasor in the hope of obtaining a greater bite from the cherry." 222 That objective does not apply where there has been no "assessment of damages by the court". 223 In Baxter, at [2], Gleeson CJ and Callinan J said: "There are many circumstances in which a person with a claim against a number of joint tortfeasors may wish to settle with one, or some, of them, and continue with, or commence, proceedings against others. The situation which arose in the present case is not unusual." 224 The same can be said where a person with a claim against a number of several tortfeasors wishes to settle with one of them, and continue with or commence proceedings against others. 225 In Baxter v Obacelo Pty Ltd (2000) 48 NSWLR 522 Giles JA (with whom Mason P and Sheller JA agreed) held that the entry of the consent judgment against the principal did not have the consequence that, by reason of the rule against double satisfaction, the plaintiff could never recover more against the employed solicitor. That was, in essence, because one could not infer, from the entry of a consent judgment, that the amount of that consent judgment was intended to be the full measure of the loss suffered by the plaintiff. He said, at [67]-[68]: "If the judgment against Mr Whitehead had been for damages assessed by the court, as distinct from a consent judgment for an amount agreed as part of the settlement, by the operation of the rule against double satisfaction the opponents would be precluded from continuing the proceedings against the claimant. The critical question, then, is whether the position is the same when the judgment against Mr Whitehead was a consent judgment for an amount agreed as part of the settlement. In principle, the rule against double satisfaction should not operate, or should not necessarily operate, where the satisfied judgment is not for damages assessed by the court. The rationale for the rule is that, having been fully compensated for his loss, the plaintiff can not get more. Damages assessed by the court are by definition, as it were, full compensation for the plaintiff's loss. But an amount agreed as or as part of a settlement is not necessarily full compensation for the plaintiff's loss. Unless the settlement is in truth a capitulation, of its nature it will involve compromise, so that the amount is unlikely to be full compensation for the claimed loss and its relationship to the actual loss will be speculative. Further, the settlement may well be affected by matters not material to the assessment of the actual loss, such as the defendant's impecuniosity. Still in principle, only if it is found as a fact that the settlement amount was received as full compensation for the plaintiff's loss should the rule against double satisfaction operate to bar the plaintiff from proceeding against another tortfeasor or other tortfeasors." 226 Reasoning to that effect was supported by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 at [47]-[48]: "If there has been a judicial assessment of the whole of the plaintiff's loss or damage, resulting in an award of damages by way of judgment in that amount against one tortfeasor, satisfaction of the judgment by that tortfeasor will put an end to any claim, or possible claim, against another tortfeasor, whether a joint tortfeasor or one of several concurrent tortfeasors, for two reasons. First, the damage, as assessed by judicial decision, has been fully recouped and the claim against another tortfeasor lacks a subject matter. Where, as here, damage is an essential element of the cause of action, that element will have gone. Secondly, it would be inequitable to permit additional recovery. If there has been no judicial assessment of damages, then, in the light of current Australian authority on the effect of s 5(1)(a) of the Act, it would be anomalous if the consequences of a settlement with one tortfeasor upon a claim against another tortfeasor should turn upon the difference between a consent judgment and a Tomlin order, or between joint tortfeasors and several concurrent tortfeasors. If it would be unconscientious of the plaintiff to pursue a claim against another tortfeasor, or if the amount received pursuant to the settlement is, or ought to be regarded as, recoupment of the whole of the plaintiff's loss or damage, then action against another tortfeasor, whether in separate proceedings, or, where the other tortfeasor was a party to the original proceedings, by way of continuation of those proceedings, must fail. …" 227 While those remarks were made concerning the application of the rule against double satisfaction, they have a bearing upon the application of section 5(1)(b). The multitude of factors that could lead a plaintiff to accept a sum that was less than full compensation in settlement of a claim provide a reason why a blanket rule, prohibiting a plaintiff from recovering more in a second action against a concurrent tortfeasor than was recovered in a first action, could work unjustly. However, there is no analogous potential for injustice if the damages in the first action have been arrived at by judicial assessment (apart from what some may perceive as injustice arising from legislation that restricts the damages available in the first action, which if it be injustice at all, is an injustice imposed by Parliament, that the courts must accept). Further, as Kirby J (with whom Gummow and Hayne JJ agreed on section 5(1)(b)) said at [74] and [75] of Baxter (quoted at [178] and [179] above) there is a reason of legal policy not to construe an unclear statutory provision in a way that inhibits settlement of litigation. 228 While one can accept that one of the aims of section 5(1)(b) is preventing a multiplicity of actions, it is far from clear that that aim extends to stopping multiplicity of actions that do not all proceed to hearing and determination. It is in the case where there have been two separate hearings, each of which has gone to judicial determination of the quantification of the one item of a plaintiff's damage, that the waste of resources of the parties and the court system is most apparent. There can be situations where there are multiple actions, but there is little if any such waste, such as when an action brought against one concurrent tortfeasor settles soon after the initiating process is issued. 229 Consider the situation of a plaintiff who had accepted a small sum in settlement of a claim against one several tortfeasor. It would be anomalous if that plaintiff were free to seek to obtain judgment and levy execution (for the judgment debt minus the amount recovered already) from another several concurrent tortfeasor if the first tortfeasor settled after litigation was threatened but not started, but not free to do the same if the settlement had occurred soon after a statement of claim was issued. It would be anomalous in the present case if the plaintiff could not proceed with the 2005 Action notwithstanding that that action had been listed to be heard together with the 2007 Action, but (as happened in Baxter) would have been free to proceed with it if her solicitors had gone through the formality of obtaining an order that the two actions be consolidated. 230 In my view there are no considerations of context, history or policy that displace the construction I arrived at by considering the meaning of the words of the provision. The preferable construction is thus that there are "damages awarded", within the meaning of section 5(1)(b), only if the court has assessed the quantum of those damages. For that reason, the judge was wrong in summarily disposing of the 2005 Action. 231 If the action against the Respondents proceeds to trial, and liability is established, clearly the Appellant will be unable to receive from the Respondents damages to the extent that she has already been compensated by the State for the damage that she has suffered. There will be a problem in ascertaining how much of the damages that the State paid is to be attributed to exacerbation of the Appellant's condition that arose from the activities of the Respondents, when the sum that the State paid her is a lump sum that covers damage sustained from three separate incidents, only one of which involved the Respondents. There may also be difficulties concerning how the court should treat the fact that the real value that the Appellant's settlement attributed to the damage that she sustained in those three incidents is not $220,000 - it will be necessary to take into account that that sum was inclusive of costs, and also that the plaintiff was entitled to keep the amount of workers compensation benefits that the State had paid to her or for her benefit. That there are these difficulties is not a reason for being dubious about the construction of section 5(1)(b) at which I have arrived, because those problems would exist if section 5(1)(b) had never been enacted in a form that applied to several concurrent tortfeasors. 232 They are difficulties of fact, not of principle. In Mahony the High Court considered the availability of contribution between an allegedly negligent employer whose worker had been injured, and the doctor who had then allegedly treated the worker negligently. Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ considered an objection to the availability of contribution that there was not the "same damage" because the damage for which the employer was liable would inevitably be more extensive than that for which the doctor was liable. At 531, their Honours rejected that objection, saying: "It is clear, of course, that any damage for which [the employer] alone is liable could not be the subject of contribution by [the doctor], but there is no reason why the damage for which both alleged tortfeasors are liable cannot be identified and why s 5(1)(c) cannot operate with respect to that damage. The damage for which both tortfeasors are liable is indeed the same damage, but the circumstance that the first tortfeasor is alone liable for whatever damage is caused before the subsequent tort is committed is no argument against apportioning liability for the damage caused by to both tortfeasors."

Analogous reasoning is applicable in the present case.

Failure to Determine Cause of the Appellant's Injuries? 233 The final flaw that the Appellant alleges is that the judge could summarily dismiss the proceedings only if it was quite clear that the litigation was bound to be fruitless to the Appellant, and it was not clear that the proceedings would be fruitless when the judge had failed to determine certain factual matters. 234 One of those factual matters was said to be whether in truth the damage for which the Appellant sought compensation from the Respondents had been caused by the State. Ms Norton submitted that the only material the judge had available to him was the pleadings, the terms of settlement, and a brief account of procedural history contained in some solicitors' affidavits. From that, it was not possible to tell whether the actions of the Respondents amounted to a novus actus interveniens, with the consequence that in truth the State had not caused any of the same damage that the Respondents had caused. Essential conditions for the operation of section 5(1)(b) are that "damage is suffered by any person as a result of a tort" and "more than one action is brought in respect of that damage". The first of those conditions requires damage in fact to be suffered by a person as a result of a tort. A mere allegation of the suffering of damage as a result of a tort (as the Appellant had alleged against the State, so far as the exacerbation of injury arising from the intervention of the Respondents was concerned) is not enough, she submits, to satisfy that condition. 235 It is legally uncontroversial that if a plaintiff suffers bodily injury as a result of a tort, and in acting reasonably to seek treatment for that bodily injury is subjected to negligent medical treatment, the first tortfeasor can be liable (and indeed usually is liable) for the exacerbation of symptoms that results from the negligent medical treatment: Mahony. However, Mahony at 529-530 also recognised that "… medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances …", such as when it is " 'inexcusably bad' … or 'completely outside the bounds of what any reputable medical practitioner might prescribe' … or 'so obviously unnecessary or improper that it is the nature of gratuitous aggravation of the injury' … or 'extravagant from the point of view of medical practice for hospital routine'… In such a case, it is proper to regard the exacerbation of the plaintiff's condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiffs acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation." 236 Ms Norton submits that it would require a trial to decide whether the treatment that the Respondents had given to the Appellant was so bad that the State bore no responsibility for the exacerbation of the Appellant's condition caused by that treatment. 237 For that reason, she submits, the judge was premature in summarily dismissing the 2005 Action. 238 Mr Leopold submitted that it was not open to the Appellant to put that submission, when she had already received damages from the State on the basis that any exacerbation of her condition arising from the actions of the Respondents was a consequence of the State's wrong to her. He submitted that it was significant that the 2007 Proceedings "are over", and that the judgment in them is to be construed by reference to the pleadings in the action that claimed damages for (inter alia) the activities of the Respondents. Though he made reference to "approbating and reprobating", and "abuse", the argument was not developed in any depth. 239 It seems to me that deciding whether this submission of Ms Norton is one that the Appellant is free to make would involve clear identification of the precise principle that is being invoked, and examination of the case law relevant to that principle. One relevant principle might involve considering whether the Appellant had made an election to accept money from the State on the basis that the exacerbation of her injuries caused by the Respondents was in law caused by the negligence of the State. Another relevant principle might involve considering whether it would involve an abuse of process, of the type considered in Reichel v Magrath (1889) 14 App Cas 665, Walton v Gardiner (1993) 177 CLR 378 at 393, Rogers v The Queen (1994) 181 CLR 251 at 287-288 or Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 for the assertion to be made. Glanville Williams, op cit, p 39-40 considered briefly (and rejected) an argument somewhat like Mr Leopold's present submission, but cast in terms of estoppel. 240 When the submission has not been developed, and in the light of the conclusion I have already reached it is unnecessary to decide whether this particular submission is correct, it is preferable to leave it undecided.

Orders 241 Each Respondent had filed in the District Court a notice of motion that sought, in the alternative, dismissal of the 2005 Action, or leave to amend their respective defences to plead that the action was unmaintainable by virtue of section 5(1)(b). The only one of those prayers for relief that the judge dealt with was the order seeking dismissal. However, the conclusion that I have come to means that the order for amendment would be futile. Thus the whole of each Respondent's Notice of Motion should have been dismissed. Each Respondent had on foot a cross-claim against the other. Consequential upon dismissing the Appellant's action, the judge also dismissed each of those cross-claims. He also made some costs orders, that were consequential upon his decision to dismiss the claim. All those orders should be set aside. 242 I propose the following orders:

(2) Direct a notice of appeal, in the form contained in the white book, be filed within seven days

(4) Set aside the orders made in the District Court on 20 February 2009 in matter 4603 of 2005

(5) In lieu thereof, order that the Notice of Motion of each Respondent be dismissed with costs

(6) Respondents to pay costs of the Appellant of the appeal, but to have a certificate under the Suitors Fund Act 1951 if qualified. 243 SACKVILLE AJA: I am grateful to Campbell JA for setting out the background to and the issues arising on the application for leave to appeal and the appeal. I agree with the orders proposed by his Honour. I shall set out my own reasons for reaching this conclusion. 244 As Mr Leopold SC, who appeared with Mr White for the second respondent, correctly submitted, s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ("the Act") must be read as a whole. Nonetheless, as Campbell JA has set out the relevant portions of s 5 of the Act, it is convenient to reproduce here only s 5(1)(b): "Where damage is suffered by any person as a result of a tort … (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given ; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action". (Emphasis added.) 245 The issue before this Court is whether the primary Judge (Robison DCJ) erred in dismissing the proceedings brought by the appellant against the respondents ("second proceedings") under Uniform Civil Procedure Rules 2005 ("UCPR") r 13.4(1). In the way the case was argued on the appeal, the correctness of his Honour's decision depends on whether the appellant is precluded by s 5(1)(b) of the Act from enforcing any judgment for damages she might obtain in the second proceedings by reason of the consent judgment obtained in earlier proceedings brought by her against the State of New South Wales ("first proceedings"). 246 The respondents' position is that the appellant is precluded from enforcing any such judgment because s 5(1)(b) prevents her from recovering in the second proceedings more than the amount of damages awarded to her by the consent judgment in the first proceedings. According to the respondents, the consent judgment compromised the appellant's claim against the State for damages for personal injuries, including the injuries to her left shoulder occasioned by negligent treatment (for which the State was said to be responsible) and the second proceedings have been brought in respect of the same damage as the first proceedings. It follows, so they argue, that the terms of s 5(1)(b) are satisfied. Since the consent judgment against the State has been satisfied in full and since the appellant can recover no further damages under a second judgment, the second proceedings are futile and constitute an abuse of process. 247 The appellant accepts that she must give credit, when enforcing any judgment she obtains in the second proceedings, for damages already received by her in respect of the injuries to her left shoulder. She also accepts that it is a question of fact as to what portion of the consent judgment entered against the State (for $220,000 inclusive of costs) represents damages for injuries to her left shoulder. However, she contends that she is not precluded by s 5(1)(b) of the Act from recovering under any judgment obtained in the second proceedings. 248 The appellant says that this is so for three reasons. First, s 5(1)(b) applies only where the first judgment is given by a court after a full hearing or after a judicial assessment of damages. Secondly, the proceedings against the respondents are not in respect of the same "damage" as the proceedings brought by the appellant against the State, because the heads of damage available in an action against the State are more limited than those available in an action against the respondents. Thirdly, s 5(1)(b) does not apply where, as here, the first proceedings are settled on the basis that the claimant (the appellant) reserves the right to proceed against other joint or concurrent tortfeasors. 249 I propose to deal only with the appellant's first argument. 250 The appellant's written submissions concentrated on the phrase "judgment first given" in s 5(1)(b). The appellant argued that the phrase should be construed to refer only to judgment given by a court after a full hearing or after a judicial assessment of damages. This interpretation was said to be in conformity with the "policy of the law" stated by Kirby J in his concurring judgment in Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635, at 664-665 [75]: "Unless the Act clearly obliges a different conclusion or unless a clear principle of the common law or of equity mandates the opposite result, it is ordinarily desirable that parties should be able to settle severally, as between each other, the issues they have brought to court for resolution according to law. Any inhibition upon that attribute of personal and economic freedom has to be clearly justified and based on statutory language or legal authority that is certainly applicable". 251 In the course of oral argument, the textual focus of the appellant's arguments changed. Ms Norton SC, who appeared with Ms Causer for the appellant, placed emphasis on the expression "the damages awarded by the judgment first given". She submitted that, whatever meaning might be attributed to the phrase "judgment first given", the reference to "damages awarded by the judgment" indicate that the upper limit of recovery under s 5(1)(b) (assuming that all elements of the provision are satisfied) is the quantum of damages in respect of injuries sustained by the plaintiff awarded by a court after a hearing on the merits. 252 Section 5 of the Act reproduces the language of s 6 of the curiously entitled Law Reform (Married Women and Tortfeasors) Act 1935 (UK) ("1935 Act"). The 1935 Act broadly followed the recommendations of the Law Revision Committee in its Third Interim Report (Cmd. 4637, 1934). That Report was primarily concerned with abolishing the "doctrine of no contribution between tort-feasors". It addressed (at [11]) only very briefly an important consequential issue raised by the abolition of the doctrine, namely whether a plaintiff should be restricted to "obtain[ing] by execution, in the aggregate, more than the amount awarded in the first judgment". The recommendation (Rec I) was framed in terms of a proviso to the principal recommendation: "Provided that the Plaintiff shall not be entitled to levy execution for, or to be paid, a sum exceeding, in the aggregate, the amount of the first judgment obtained against any of the persons so liable, nor to recover the costs of any subsequent action, unless the Judge before whom it is tried is of opinion that there was reasonable ground for bringing it". (Emphasis added) 253 The United Kingdom Parliament did not follow precisely the language used by the Law Revision Committee in the legislation implementing the Committee's recommendations. The drafting of the legislation has often been criticised, both in Australia and the United Kingdom. The language of s 5(1)(a) of the Act was described by Gibbs CJ in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448, at 458 [14], as "elliptical and somewhat obscure", a description that echoed the comment of Lord Diplock in Bryanston Finance Ltd v de Vries [1975] QB 703, at 731 ("highly elliptical"). Kirby J in Baxter (at 663 [72]) cited the pointed observation of the High Court in Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport [1955] HCA 1; 92 CLR 200, at 211 [12], that s 5(1) is "a piece of law reform which seems itself to call somewhat urgently for reform". Kirby J himself characterised (at 667 [84]) the language of s 5 as "opaque". 254 In the United Kingdom, the 1935 Act has indeed been reformed. In 1977, the Law Commission recommended removal of the limit set by s 6(1)(b) of the 1935 Act on the sum recoverable in successive actions, but proposed the retention and extension of the special provision relating to costs: Law of Contract: Report on Contribution (Law Com. No 79, 1977), at [41]. The Law Commission pointed out (at [37]) that s 6(1)(b) contained two deterrents against separate or successive proceedings against tortfeasors: first, the limitation on the sum recoverable by execution from tortfeasors in subsequent proceedings and, secondly, the special costs provision. 255 The Commission considered (at [40]) that the first sanction could lead to injustice: "The amount of damages recoverable from one tortfeasor may be limited and the amount recoverable from another may not. The plaintiff may have good reasons for suing them in different actions and may have to sue the one with the limited liability first. In such circumstances it would seem odd that the tortfeasor with unlimited liability should benefit from the fact that judgment was first obtained against the one whose liability was limited. Such a result would, in our view, cause unjustifiable hardship to the plaintiff". (Footnote omitted.)

The Commission doubted (at [41]): "whether the sanction as to damages contained in section 6(1)(b) of the 1935 Act can be justified today. One of the main reasons for introducing it was that juries could not be relied on to assess damages in the same way. Whatever merit this argument may once have had has largely gone now that jury trial has ceased to be the normal method of trying civil actions. The other main reason for introducing section 6(1)(b) was to prevent multiplicity of proceedings but we think that this consideration is sufficiently covered by the special provision on costs, which we support and would like to see extended". 256 The Law Commission's recommendations were implemented by the Civil Liability (Contribution) Act 1978 (UK), which repealed s 6 of the 1935 Act and replaced it by provisions giving effect to the Law Commission's proposals: see ss 3, 4, 9(2), Sch 2. Oddly enough, the New South Wales Parliament has not followed suit in the 32 years that have passed since the Law Commission's Report. 257 Although it is often said that s 5(1)(b) of the Act and its UK predecessor were designed to discourage multiple proceedings against joint or concurrent tortfeasors, the provision does not prevent the institution of successive actions against such tortfeasors. It operates by limiting the recoverability of sums awarded under judgments: Baxter, at 651 [29], per Gleeson CJ and Callinan J (with whom Gummow and Hayne JJ agreed); cf Bracks v Smyth-Kirk [2009] NSWCA 401, at [111], per McColl JA (with whom Allsop P and Young JA agreed). As was pointed out in Bracks, s 5(1)(b) expressly contemplates that more than one action may be brought against joint or concurrent tortfeasors in respect of the same damage. Moreover, a second or subsequent action might be appropriate in particular circumstances, as where the first judgment debtor is impecunious and a second action is required to produce a judgment capable of being satisfied: Bracks, at [150]-[155]. 258 The language by which s 5(1)(b) limits recoverability in the second or subsequent proceedings requires careful attention. The limitation is that the sums recoverable: "shall not in the aggregate exceed the amount of the damages awarded by the judgment first given". (Emphasis added.) 259 The New Shorter Oxford English Dictionary defines the verb "award" to mean: "1. gen . Decide or determine (something, that , to do ) after consideration or deliberation. 2. Decide judicially (a process); issue judicially (a document etc.)".

The same source defines the noun " award " to mean: "1. A judicial decision. 2. A payment, penalty, etc, appointed by a judicial decision". 260 The Macquarie Dictionary (5th ed) defines "award" as a verb as follows: "1. to adjudge to be due or merited; assign or bestow: to award prizes . 2. to bestow by judicial decree; assign or appoint by deliberate judgement, as in arbitration".

" Award " as a noun is defined to mean: "3. something awarded, as a medal or prize. 4. Law . a. the decision of arbitrators on points submitted to them. b. a decision after consideration; a judicial sentence". 261 It will be seen from the dictionary definitions that the language used in s 5(1)(b) of the Act is ambiguous. It can be read as limited to a judgment entered in favour of a plaintiff following an assessment by the court of the quantum of damages to which the plaintiff is entitled by reason of the injuries he or she has sustained through the defendant's breach of duty. On the other hand, the statutory language is capable of being read more broadly, to include a consent judgment requiring the defendant to pay the plaintiff an agreed sum in settlement of his or her claim for damages in respect of personal injuries. There are other examples of legislation using "award" whether as a noun or verb, that may give rise to similar ambiguities: see for example Civil Liability Act 2002, Pt 2 ("Personal injury damages"); Supreme Court Act 1970, s 68 ("Lord Cairns Act"); Tanska v Transport Accident Commission [2000] VSC 56 (Warren J); Eccles v Taylor [1995] 2 VR 482 (Ashley J). 262 Statutory provisions must be construed having regard to the language used, interpreted in the context of the legislation read as a whole. Notwithstanding the ambiguity in s 5(1)(b) of the Act, in my view, the more natural interpretation of the statutory language is that the aggregate limit is to be ascertained by reference to the amount of damages awarded following a judicial assessment of the damages to be awarded to the plaintiff by reason of his or her injuries. This follows from the primary dictionary meaning of "award", when used as a verb, as determining or deciding (a claim) after consideration or deliberation, or adjudicating that a claim is merited. 263 When s 5(1)(b) is read in context, this construction receives support. It can be accepted, as Mr Leopold argued, that the word "judgment" in s 5 must be given the same meaning throughout the section. It can also be accepted that, having regard to the object of s 5(1)(a) (that is, the abolition of the common law rule that a tort committed by joint tortfeasors merged in the judgment against one tortfeasor), "judgment" includes a consent judgment entered as the result of a settlement reached by the parties. But the question is what meaning should be attributed to the expression "the amount of the damages awarded by the judgment first given." 264 Section 5(1)(b) uses the expression "under the judgments given in those actions". It would have been a simple matter, had it been intended to set the limit of recoverability by reference to the amount of the first judgment, regardless of whether or not it followed a judicial assessment of damages, to make the intention clear. For example, the limit could have been expressed as "the amount of the judgment first given" or, perhaps, "the amount of the judgment first given by way of damages". Alternatively, the formulation could have been that proposed by the Law Revision Committee, but not adopted by the drafter of the 1935 Act: "the amount of the first judgment obtained against any of the persons so liable". That language would have made it quite clear that the upper limit of recovery was determined by the amount of the first judgment, whether "obtained" by consent or in consequence of a judicial determination. The apparently deliberate departure from the language proposed by the Law Revision Committee is, in my view, significant. 265 The construction I prefer fits comfortably with the principles explained by the High Court in Baxter. Where a court assesses damages in the first action, the plaintiff is precluded by s 5(1)(b) from recovering under a judgment in the second action more than the amount of damages awarded by the court in respect of the relevant "damage". In such a case, the court in the first action will have given reasons for its assessment of damages. Accordingly, there will ordinarily be no difficulty in ascertaining "the amount of the damages awarded by the judgment first given". 266 On this construction, s 5(1)(b) does not apply where the judgment first given has not involved a judicial assessment of damages. However, the plaintiff is prevented from obtaining double recovery of damages by the principles of recovery and satisfaction discussed in Baxter. The policy of encouraging settlement of the first proceedings is promoted without the plaintiff having the incentive of double recovery to pursue a second or subsequent proceeding. Moreover, this approach avoids the artificial distinction between a settlement implemented by a consent judgment in favour of the plaintiff and a settlement that operates inter partes, but does not result in a monetary judgment in the plaintiff's favour. 267 Contrary to Mr Leopold's argument, I do not think that this construction of s 5(1)(b) of the Act undercuts the policy of discouraging successive actions against joint or concurrent tortfeasors. First, as Bracks demonstrates, the policy is imperfectly implemented by the legislation in any event. Secondly, the sanction in costs provided by s 5(1)(b) remains as a disincentive to successive actions. Thirdly, the plaintiff is precluded from double recovery by the principles of recovery and satisfaction. Fourthly, a plaintiff who unreasonably pursues a second action against a joint or concurrent tortfeasor may well be met with an application to stay the proceedings on the principles stated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589. 268 Furthermore, construing s 5(1)(b) of the Act in the manner I suggest avoids much of the injustice that otherwise can be occasioned by the provision. As the Law Commission pointed out in 1977, the provision is capable of causing unjustifiable hardship where, for example, a plaintiff has good reasons for suing the tortfeasors in separate actions and institutes the first proceedings against a tortfeasor whose liability for the damage is more limited than the other joint or concurrent tortfeasors. 269 I therefore conclude that, on its proper construction, s 5(1)(b) of the Act does not apply to a consent judgment which provides for a tortfeasor to pay damages to a plaintiff in respect of the "damage" he or she sustained in consequence of the tort, where the consent judgment does not follow an assessment of damages by a court. It follows that leave to appeal should be granted and the appeal allowed. **********

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