CRENNAN AND KIEFEL JJ. This appeal concerns an issue of construction of s 7(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) ("the WA Act"). Section 7 is headed "Rules applicable if there are 2 or more tortfeasors", and sub-s (1) relevantly provides:
"[W]here damage is suffered by any person as the result of a tort -
(a) judgment recovered against any tortfeasor 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 tortfeasor 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 ... against tortfeasors liable in respect of the damage (whether as joint tortfeasors 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 tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought."
In relation to damage suffered by a person as the result of a tort, s 7(1)(a) abolishes a plea in bar based on the common law defence of "release by judgment", s 7(1)(b) deters separate and successive actions against two or more tortfeasors who cause the same damage, and s 7(1)(c) creates a right and remedy of contribution between tortfeasors which did not exist at common law.
The question in this appeal is whether the restriction in s 7(1)(b) of the WA Act - that sums recoverable under judgments given in multiple actions for damages "shall not in the aggregate exceed the amount of the damages awarded by the judgment first given" - applies only to damages awarded by a court following a judicial assessment, or whether the restriction also applies to a judgment entered by the consent of the parties in a superior court of record.
Provisions substantially identical to s 7(1) of the WA Act exist in the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the NSW Act") (s 5(1)), the Law Reform Act 1995 (Q) (s 6), and the Law Reform (Miscellaneous Provisions) Act (NT) (s 12). As long ago as 1955, such provisions were described by this Court as representing "a piece of law reform which seems itself to call somewhat urgently for reform."
The proceedings
In 2004, the respondent, Mr Michael Thornton, was injured in an accident which occurred in the course of his employment on a mine site owned and operated by the appellant, Newcrest Mining Limited. At the time of the accident, the respondent was employed by Simon Engineering (Australia) Pty Ltd ("Simon Engineering"). The respondent claimed workers' compensation payments in relation to his injury, and also claimed damages from Simon Engineering for negligence and breach of statutory duty. In 2007, the respondent reached a settlement agreement with Simon Engineering in relation to his claim. At that stage, the respondent had not yet commenced court proceedings.
On 11 May 2007, in order to give effect to the settlement agreement, the respondent commenced proceedings against Simon Engineering in the District Court of Western Australia, and Simon Engineering consented to judgment being entered against it. On 31 May 2007, a consent judgment was entered in the District Court in the following terms:
"Pursuant to the aforesaid order of the Registrar IT IS THIS DAY ADJUDGED that judgment [be] entered for [the respondent] against [Simon Engineering] for the sum of $250,000.00 exclusive of weekly payments made to date pursuant to the Workers' Compensation & Injury Management Act 1981, plus legal costs in the sum of $11,804.00 inclusive of disbursements."
Simon Engineering satisfied this judgment and made no claim for contribution against the appellant. Subsequently, in June 2008, the respondent commenced proceedings in the District Court against the appellant, claiming damages for negligence and breach of statutory duty in relation to the same injury.
In the particulars of damages claimed in his proceedings against the appellant, the respondent reduced his damages by an amount described as "settlement monies received".
Decisions below
On 11 May 2009, the appellant applied for summary judgment against the respondent pursuant to O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA). On 28 August 2009, a Deputy Registrar of the District Court (Deputy Registrar Hewitt) ruled in favour of the appellant on the basis that s 7(1)(b) of the WA Act prevented the respondent from recovering further damages from the appellant in relation to his injury.
A single judge of the District Court (Mazza DCJ) heard the respondent's appeal by way of a hearing de novo. His Honour dismissed the appeal.
Just over two months after Mazza DCJ handed down his decision, the Court of Appeal of the Supreme Court of New South Wales (McColl and Campbell JJA and Sackville AJA) ("the NSW Court of Appeal") published its reasons for decision in Nau v Kemp & Associates Pty Ltd, which dealt with a similar issue arising under s 5(1)(b) of the NSW Act (which, as mentioned above, is substantially identical to s 7(1)(b) of the WA Act).
The plaintiff in Nau v Kemp had brought two actions claiming damages from concurrent tortfeasors. One of the actions was settled and, pursuant to the settlement, a consent judgment for $220,000 was entered in favour of the plaintiff. Following that settlement, the defendant in the other action successfully applied to have the action summarily dismissed.
The NSW Court of Appeal unanimously upheld the plaintiff's appeal from that decision. Their Honours found in favour of the plaintiff on the basis that the expression "damages awarded by the judgment first given" in s 5(1)(b) of the NSW Act referred to damages awarded by a court after a judicial determination on the merits, and did not apply to an earlier consent judgment entered in favour of the plaintiff.
In considering the text of s 5(1)(b), the members of the NSW Court of Appeal concentrated on the meaning of the word "awarded" occurring in the expression "damages awarded by the judgment first given". Various meanings of the word "awarded" were considered to support the proposition that the expression could only mean damages awarded by a court following a judicial assessment of the quantum of those damages. Acknowledging that a judgment by consent, as part of a settlement, might not be a judgment for the full loss suffered by the plaintiff, all members of the NSW Court of Appeal considered that a provision limiting recovery in a subsequent action against a concurrent tortfeasor could work unjustly if the damages first awarded did not cover the full amount of a plaintiff's loss.
In considering the respondent's appeal from the decision of Mazza DCJ, the Court of Appeal of the Supreme Court of Western Australia (Pullin and Murphy JJA and Murray J) ("the WA Court of Appeal") complied with the direction given by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd that an intermediate appellate court should not depart from an interpretation placed on uniform national legislation by another Australian intermediate appellate court unless convinced that interpretation is plainly wrong. Although the WA Court of Appeal noted that s 7(1)(b) of the WA Act was not uniform throughout Australia, it regarded the fact that identical provisions existed in four Australian jurisdictions (including New South Wales) as warranting a similar approach in those four jurisdictions.
The WA Court of Appeal criticised one aspect of the reasoning in Nau v Kemp - the suggestion by McColl JA and Campbell JA that applying s 5(1)(b) of the NSW Act to judgments entered by consent might discourage the settlement of litigation. However, the members of the WA Court of Appeal otherwise unanimously endorsed the reasoning in Nau v Kemp because they considered that the construction of s 5(1)(b) of the NSW Act preferred by the NSW Court of Appeal ensured equality between plaintiffs. On the construction of s 7(1)(b) of the WA Act adopted by the WA Court of Appeal, a plaintiff who settles against one tortfeasor for less than the full loss suffered and agrees to a consent judgment against that tortfeasor will not be barred from subsequently pursuing the balance of his or her full loss against a concurrent tortfeasor. This was said to put that plaintiff in the same position as a plaintiff who settles against a tortfeasor for less than his or her full loss but does not agree to a consent judgment, and who is therefore free to pursue recovery of his or her full loss against a concurrent tortfeasor.
Section 7(1)
The Court's task on this appeal is to construe a provision in a statute, not to develop the common law. Application of the canons of statutory construction will involve the identification of the purpose of a statute, or a provision, which purpose may be stated expressly or inferred from the terms of the statute or provision, and may be elucidated by appropriate reference to extrinsic materials. Historical considerations or extrinsic materials should not displace the clear meaning of statutory text, the language of which is the surest guide to what is called, metaphorically, the "intention" of the legislature. However, the meaning of a provision may require consideration of the context, which can include the history and evident policy of a provision, particularly where a statute alters the common law.
Section 7(1) of the WA Act, like equivalent provisions in other Australian jurisdictions, has its origins in s 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK) ("the 1935 UK Act"). Section 6(1) of the 1935 UK Act altered certain common law rules in respect of proceedings against, and contribution between, two or more tortfeasors. It was introduced following recommendations made by the Law Revision Committee in its Third Interim Report, presented in 1934 ("the Report").
As will be explained in more detail later, the focus of the Report was on the prevailing legal doctrine that there be no contribution between joint tortfeasors. Where damage is caused as the result of torts committed by two or more tortfeasors, the tortfeasors may be either joint tortfeasors or several (in the sense of "separate" or "independent") tortfeasors. Three relevant categories are commonly identified:
(a) joint tortfeasors (being two or more persons responsible for the same wrongful act which causes single damage to the plaintiff);
(b) several tortfeasors (being two or more persons responsible for different wrongful acts) whose separate wrongful acts combine to cause the same damage to the plaintiff; and
(c) several tortfeasors whose separate wrongful acts cause different damage to the plaintiff.
As Gleeson CJ and Callinan J observed in Baxter v Obacelo, Glanville Williams used the term "concurrent tortfeasors" as a generic term to describe both the first and second of these categories. In this judgment, the term "several concurrent tortfeasors" will be used to refer to the second category.
It is not in contention that, if the appellant were liable to the respondent, the appellant and Simon Engineering would be several concurrent tortfeasors.
The third category may be put to one side for the purposes of this appeal.
The common law background to the Report
The common law background addressed in the Report and relevant to s 6(1) of the 1935 UK Act was explained by Gleeson CJ and Callinan J (with whom Gummow and Hayne JJ agreed) in Baxter v Obacelo:
"At common law, the liability of joint tortfeasors was joint and several. A plaintiff could sue joint tortfeasors separately, in independent actions, for the full amount of the loss. Or the plaintiff could sue all the joint tortfeasors in the same action. Several concurrent tortfeasors, on the other hand, could not be joined as defendants in the one action. That was because they were severally liable 'on separate causes of action'. The difference between action and cause of action was significant. A person suffering injury as a result of the wrongdoing of joint tortfeasors had only one cause of action. Some consequences of this will be considered below. Such a person might bring one action (ie proceeding), or more than one action. In the case of several concurrent tortfeasors, there was a separate cause of action against each, and if a plaintiff desired to sue more than one, it was necessary to commence separate actions.
One corollary of the principle that a plaintiff had only one cause of action against a number of joint tortfeasors was that, 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. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd this Court had to consider the effect upon that rule of s 5 of the [NSW Act] in a case where one of two joint tortfeasors was liable for exemplary damages, but the other was not so liable.
Another corollary, sometimes referred to as the rule in Brinsmead v Harrison, was that the single cause of action resulting from the joint commission of a tort merged in the first judgment which the plaintiff obtained in respect of it. A plaintiff who recovered action against any one joint tortfeasor was 'barred from subsequently recovering judgment against any other joint tortfeasor responsible for that tort whether in an action commenced before, at the same time as, or after the action in which a final judgment had already been recovered'. The Privy Council, in Wah Tat Bank Ltd v Chan described this common law rule as 'highly technical and unsatisfactory' and cited, as its only possible justification, what was said about it by Blackburn J in Brinsmead v Harrison:
'Is it for the general interest that, having once established and made certain his right by having obtained a judgment against one of several joint wrongdoers, 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.'
...
One technique that was adopted to circumvent the rule in Brinsmead v Harrison was the Tomlin form of order by which a settlement agreement was made and recorded without entry of judgment. As the Privy Council observed in Wah Tat Bank, this was not a complete solution to the inconvenience and injustice caused by the common law rule. The rule was considered in England by the Law Revision Committee which recommended legislation which took effect as s 6(1) of the [1935 UK Act]."
The Report and s 6(1) of the 1935 UK Act
A brief consideration of the Report and the 1935 UK Act assists the present task of construction of s 7(1)(b) of the WA Act.
In 1934, the Committee was asked to consider a number of legal doctrines which might require revision, including the doctrine that there be no contribution between joint tortfeasors, which had been the subject of criticism. The Committee recommended that, when two persons each contribute to the same damage suffered by a plaintiff, the one who pays more than his share should be entitled to recover contribution from the other. The Committee further considered that the right should be conferred on several concurrent tortfeasors as well as joint tortfeasors. That recommendation took effect as s 6(1)(c) of the 1935 UK Act.
It was in the context of its recommendations on contribution that the Committee considered it desirable to alter the rule in Brinsmead v Harrison, described above, which had the effect that "the tort is merged in the judgment even though there is no satisfaction". The Committee recommended that:
"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."
This recommendation took effect as s 6(1)(b) of the 1935 UK Act.
The rationales for the rule in Brinsmead v Harrison were that it "prevented multiplicity of actions and that a second jury might award different damages from the first". This was the context in which the Committee suggested that the rule be altered only in respect of unsatisfied judgments - that is, judgments in respect of which execution had wholly or partly failed. The Committee also noted, by reference to The Koursk, that the rule in Brinsmead v Harrison did not apply to several concurrent tortfeasors.
Before going further, something should be said about the use of the terms "satisfied" and "unsatisfied". In circumstances where a writ of execution which issues on behalf of a successful plaintiff results in less than full recovery of the amount of loss or damage awarded by a judgment, the judgment is readily described as "unsatisfied". A plaintiff can compromise or settle a claim for loss or damage and agree to entry of a judgment by consent for a lesser amount than that claimed, or that which might have been awarded after a trial. Such a judgment may subsequently be "satisfied", as was the consent judgment at issue in this appeal. However, a plaintiff who has settled for such a lesser amount can be said not to have received "full satisfaction" in respect of the loss or damage claimed. This distinction is important: the Committee's recommendation provided for judgments which were unsatisfied, but not for plaintiffs who did not receive full satisfaction.
When the Committee's recommendations were given effect in s 6(1) of the 1935 UK Act, s 6(1)(b) deterred separate or successive proceedings against both joint tortfeasors and several concurrent tortfeasors. It did so not by barring such proceedings, but by providing that sums recoverable in them should not in the aggregate exceed the amount of damages awarded by the judgment first given, and that the plaintiff should not ordinarily be entitled to costs in any but the first proceeding. These two deterrents were described in a subsequent report as "the sanction in damages" and "the sanction in costs".
In its terms, s 6(1)(b) proceeded on the assumption that the judgment first given would be a judgment in respect of an actionable wrong for a sum representing the amount of the loss or damage suffered by the plaintiff, reflecting the Committee's suggestion that such legislation cover unsatisfied judgments only. It did not deal with the circumstance that a plaintiff might not recover the full amount of his or her loss or damage under a judgment first given where that judgment was entered by consent as the result of a settlement or compromise.
Construction of s 7(1)(b)
Provisions identical to s 7(1) of the WA Act have been criticised since the remark made by this Court in Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport, quoted above.
In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd, Gibbs CJ described s 5(1)(b) of the NSW Act as being "elliptical and somewhat obscure". In approaching the issue of construction presented in James Hardie v Seltsam, Gaudron and Gummow JJ said that s 5(1) of the NSW Act:
"ha[d] become notorious for the conceptual and practical difficulties it engenders ... Further, judicial decisions calculated to remove one anomaly by an apparent beneficent construction of the legislation have given rise to other anomalies."
Their Honours went on:
"Judicial interpretative techniques may come close to leaching the existing statutory text and structure of their content and, whilst answering that apparently hard case then before the court, unwittingly lay the ground for other hard cases.
The present statute represents an attempt to adjust the tripartite rights and interests of P, D1 and D2. Any 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."
The appellant contends, as it did before the WA Court of Appeal, that Nau v Kemp was wrongly decided by the NSW Court of Appeal. It submits that, like s 5(1)(b) of the NSW Act, s 7(1)(b) of the WA Act was intended to avoid multiplicity of suits. The appellant's main argument is that, even if the expression "damages awarded by the judgment first given" in s 7(1)(b) could be said to be elliptical or ambiguous, that circumstance does not compel the result that judgments entered by consent should be treated differently from judgments resulting from a judicial determination on the merits.
The respondent seeks to uphold the reasoning of the WA Court of Appeal. He urges that the text of s 7(1)(b) should not be displaced by historical considerations or extrinsic materials, and submits that the evident intention of s 7(1)(b) is to prevent plaintiffs from recovering more than their actual loss. As to the text, the respondent concedes that, when the word "damages" first appears in s 7(1)(b), it refers to damages however arrived at, including by a consent judgment following settlement. However, the respondent contends that, when the word "damages" appears the second time in s 7(1)(b), it must be confined to damages arrived at by judicial determination on the merits, as the word "awarded" qualifies "damages", or else it is otiose.
The respondent concedes that a judgment entered by consent gives rise to a res judicata. The terms "it is this day adjudged", which appear in the consent judgment at issue in this appeal, are identical to those used in Chamberlain v Deputy Commissioner of Taxation, in which a judgment entered by consent was held to be no less binding than a judgment given on, or as a result of, a trial on the merits. The respondent did not contest that a judgment entered by consent was capable of falling within s 7(1)(a) of the WA Act. Judgments entered by consent have also been held to satisfy the requirements of ss 5(1)(c) and 5(2) of the NSW Act.
The appellant's main argument must be accepted. The legislative purpose of s 7(1)(b) is to avoid multiplicity of suits and the possibility that a plaintiff may recover more than the actual loss or damage suffered. This is confirmed not only by the language of the provision, particularly the "sanction in damages", but also by its relationship with s 7(1)(a), and by the evident policy considerations behind ss 7(1)(a) and 7(1)(b).
The appellant correctly submits that an error may occur in the construction of s 7(1)(b) if too much emphasis is laid on the word "awarded" as it occurs in the phrase "damages awarded by the judgment first given". Dictionary definitions of the verb "to award" can be expected to include the wide notion, "to adjudicate" between several competitors, or tenderers, for a prize or a contract. However, that wide meaning is not necessarily apt as a qualifier of the word "judgment", encompassing as it does in its ordinary and natural meaning judgments entered by consent and judgments resulting from a trial on the merits, the salient common feature being the finality of a judgment obtained either way. Further, while the term "award of damages" has been used to describe a judicial assessment of the whole of a plaintiff's loss, the expression is not confined to that circumstance.
The respondent submits that this Court should read the words "the judgment first given" occurring in s 7(1)(b) to mean "the judgment first given on, or resulting from, a trial on the merits". This is an invitation to the Court to construe the language of s 7(1)(b) so as to allow a person in the respondent's position to sue in separate and successive actions if that person has not been awarded the full amount of his or her loss or damage under a judgment entered by consent in the first action.
In construing a statute, the purpose of which is relatively clear, it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. To the extent that the respondent's submission highlights an aspect of s 7(1)(b) which may give rise to possible injustice, it has some force. This is particularly so given that, at common law, a plaintiff was not permitted to join several concurrent tortfeasors in the one action. However, the respondent's submission fails to read s 7(1)(b) as a whole, in the context of s 7(1). Like s 6(1)(b) of the 1935 UK Act, s 7(1)(b) proceeds on the basis that the judgment first given is a judgment in respect of the full amount of a plaintiff's loss or damage. There is no provision for the possibility that a judgment first given may not be such a judgment. No exception to the "sanction in damages" is made for a plaintiff who has achieved only partial satisfaction in the first action as a result of a judgment entered by consent. The relatively clear purpose of deterring a multiplicity of suits has been effected without provision for, or recognition of, the need for separate and successive suits in these circumstances. While the respondent is correct in submitting that s 7(1)(b) operates to prevent a plaintiff recovering more than the actual loss or damage suffered, s 7(1)(b) achieves that result by proceeding on the basis described above.
Imputing a statutory purpose to the legislature by reading language more narrowly than it might ordinarily be read may assist in the resolution of an anomaly occasioning apparent injustice to an individual only to leave unremedied, or to cause inadvertently, other injustice or hard cases. For example, a plaintiff may be obliged, or have good reason, to sue first a tortfeasor in respect of whom the amount of damages recoverable is limited, where the amount recoverable from another tortfeasor is not so limited. Separate or successive actions may follow from proportionate liability legislation enacted in Australia, or be appropriate for some other reason. If s 7(1)(b) has the potential to cause injustice in that circumstance, the injustice does not depend on distinguishing between a judgment entered by consent and a judgment given on, or resulting from, a trial on the merits.
In a subsequent report which preceded the enactment in the United Kingdom of the Civil Liability (Contribution) Act 1978 (UK), the Law Commission recognised that the limit set by s 6(1)(b) of the 1935 UK Act on the sum recoverable by execution in separate or successive actions could cause injustice. The Law Commission recommended that the "sanction in costs" be retained to deter unnecessary proliferation of actions but that the "sanction in damages" be abolished because of the possible injustice which it might cause.
Notwithstanding criticism of the clarity of s 7(1)(b), the text of the provision, and its relationship to s 7(1)(a), make relatively clear its purpose of deterring separate and successive actions where two or more tortfeasors have caused the same damage to the plaintiff. In Nau v Kemp, the NSW Court of Appeal was right to observe that the application of s 5(1)(b) of the NSW Act was capable of causing injustice in circumstances where a plaintiff had not been awarded the full amount of his or her loss or damage under a judgment first given. However, that Court erred in rewriting s 5(1)(b) to give effect to what it saw as a desirable additional purpose, namely excepting from the operation of s 5(1)(b) a plaintiff in whose favour a judgment first given had been entered by consent.
While it may be contended that s 7(1)(b) might give rise to injustice in limited circumstances while it subsists, it is possible for persons in the respondent's position to take steps (discussed in Baxter v Obacelo) to avoid the application of s 7(1)(b) to them, which do not appear to have been taken by the respondent in this case.
Where s 7(1)(b) does not apply because several concurrent tortfeasors are sued in the one action, it would be anomalous if the consequences of a settlement with one tortfeasor should turn on the differences between a consent order and a Tomlin order. However, where several concurrent tortfeasors are not sued in the one action, and s 7(1)(b) operates to deter a separate or successive action by depriving it of practical utility, a plaintiff who agrees to a settlement in the first action without reserving, if appropriate, rights to recoup full loss or damage imperils his or her own interests.
Conclusion
In all the circumstances, it is for the legislature of Western Australia to consider what anomalies flow from s 7(1)(b) of the WA Act and to decide upon the necessity for any amendment.
Orders
The following orders should be made:
- Appeal allowed with costs.
- Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 12 April 2011 and, in their place, order that the appeal to that Court be dismissed with costs.