respondent. Appeal dismissed with costs. The primary judge’s finding that Mr Simmons fell, the finding of Redbro’s liability, the equal apportionment, and the treatment of the relevant judgment payments were...
Key principles
An appellate court does not overturn a trial judge’s credit-based factual findings merely because contemporaneous documents conflict with later testimony. The appeal court...
A trial judge who can resolve the central factual controversy need not also find why a witness gave different accounts at different times. The primary judge’s decision not to...
For statutory contribution between tortfeasors, the relevant apportionment is an evaluative assessment of what is just and equitable between those tortfeasors. A company’s close...
A settlement discount potentially reflecting a statutory defence under s 151Z of the Workers Compensation Act 1987 (NSW) did not determine the just and equitable contribution...
Issues before the court
Whether the primary judge erred by accepting Mr Simmons’ account that he fell, despite earlier histories that did not mention a fall.
Plain English Summary
The appeal concerned whether Redbro should contribute to Ceva after Ceva settled an injured truck driver’s claim. Redbro argued that the driver’s early records contradicted his later account of falling, and that the contribution should be much lower or nil. The Court of Appeal held that the trial judge had carefully considered the conflicting evidence and was entitled to accept the driver’s testimony. It also rejected the argument that the driver’s close connection to Redbro, the settlement arrangements, or the payment of parts of the judgment sum to others required a different apportionment. The appeal was dismissed. The Court discussed, but did not decide, which State’s contribution legislation applied.
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Whether the primary judge had to determine why Mr Simmons did not initially mention a fall.
Whether the evidentiary ruling limiting the use of medical histories, or the conduct of Dr Grinbergs’ cross-examination, warranted appellate...
Whether the equal apportionment of responsibility between Ceva and Redbro was erroneous.
Cited legislation
11 cited instruments linked from this judgment.
Deep Dive
2,012 words · generated 29/09/2026
What happened
Redbro Investments Pty Ltd was a transport company whose sole director and shareholder, Rodney Simmons, was also its designated driver. Redbro owned the prime mover. It had contracted with Ceva Logistics (Australia) Pty Ltd, then known as TNT Logistics, to haul trailers carrying vehicles around Australia. The dispute arose from an injury at Ceva’s Perth depot in January 2006.
The mechanism of injury was central. Simmons said he fell from the upper deck of a trailer while loading it. Redbro disputed that account. Early medical and insurance records described back pain arising while loading a truck, tightening or pulling a strap, or securing vehicles. Those records did not mention a fall. Simmons began describing a fall after consulting solicitors in 2008, and thereafter maintained that account. Another driver, Mr Leighton, did not see the fall, but testified that he heard a commotion and then saw Simmons on the lower deck.
Simmons sued Ceva in the District Court. The claim was resolved by consent orders for judgment of $550,000. The orders recorded that the damages had been calculated on the basis Simmons was one-third responsible for his injury, and that each party would bear its own costs. Ceva later brought separate proceedings against Redbro seeking statutory contribution as another tortfeasor.
After a retrial, the primary judge accepted Simmons’ evidence that he fell, found Redbro had breached its duty to provide a safe system of work, and assessed responsibility between Redbro and Ceva as equal. The judge assessed the relevant damages at $534,102, applied a 50 per cent apportionment, and entered judgment for $267,051 before interest. Redbro appealed on factual, evidentiary, procedural, apportionment, and payment-allocation grounds. The Court of Appeal dismissed the appeal with costs.
Why the court decided this way
The central appellate question was not simply whether the early records appeared persuasive. It was whether the primary judge had made an error of the kind that permits an appellate court to interfere with a factual finding based substantially on testimony and the trial judge’s assessment of witnesses.
Leeming JA accepted that the early histories created a real and important conflict. He noted that it was “tempting” to accept the earlier accounts rather than the later account involving a fall. But the primary judge had devoted substantial attention to the discrepancies and the evidence supporting each version. She considered the absence of an incident report, the documentary histories, Leighton’s evidence, the circumstances in which Simmons was found on the lower deck, and the way Simmons gave evidence. The Court of Appeal concluded that this was an evaluation, not a mere recitation of the evidence.
The Court applied the approach associated with Fox v Percy. Intervention may be justified where a finding conflicts with incontrovertible facts or is glaringly improbable or contrary to compelling inferences. The medical histories did not incontrovertibly prove that Simmons had not fallen. Nor did the total evidence make the trial judge’s conclusion glaringly improbable. The Court emphasised the trial judge’s advantages in seeing and hearing the witnesses, while also examining the documentary material.
A related ground argued that the primary judge had to decide why Simmons had not mentioned the fall earlier. Leeming JA rejected that submission. The central issue was whether the fall occurred. Once the trial judge had resolved that issue, the reason for the earlier accounts was not a necessary additional finding. The requirement to grapple with evidence meant analysing the competing accounts, not resolving every possible explanation for the difference.
The Court also rejected the argument that the trial judge had mischaracterised Leighton’s evidence by describing Simmons as appearing on the lower deck “suddenly”. The word was not presented as a quotation. The appeal court held that Redbro had not shown the judge was unable to describe the evidence that way, and no material consequence followed in any event.
On contribution, Redbro argued that a 50 per cent share was commercially unrealistic. It stressed that Simmons was Redbro’s sole director, shareholder, and employee, and that Ceva was in a position of practical and commercial superiority. The Court relied on Andar Transport Pty Ltd v Brambles Ltd. It rejected the notion that an employer’s duty or separate legal responsibility disappears because of the company’s size or its close connection with the employee. Redbro was not alleged to be a sham. The evidence of the dispute between the company and its sole director also illustrated that their interests were not necessarily identical.
The primary judge had weighed the relevant conduct. Ceva could readily have applied non-slip tape to the trailer, while Redbro could have asked Ceva to do so. The judge regarded Redbro’s failure as more serious because it was not prepared to spend money on employee safety despite appreciating the risk. The Court of Appeal found no error in balancing those considerations equally.
Before and after state of the law
The judgment did not announce a new general test for reviewing factual findings. It applied established appellate principles, particularly the approach in Fox v Percy, to a dispute involving conflicting early records and later testimony. Its useful clarification is practical: inconsistencies in contemporaneous documents require careful consideration, but they do not automatically make a later account legally unavailable. The appellate question remains whether the fact-finding process miscarried or the finding meets the recognised grounds for intervention.
On statutory contribution, the judgment reinforces the broad evaluative character of deciding what is “just and equitable” between tortfeasors. It also applies Andar to reject the proposition that a company’s closeness to its employee necessarily collapses their separate legal capacities or makes the company’s employer obligations irrelevant.
The judgment also discusses, without finally resolving, a choice-of-law question. The accident occurred in Western Australia, but the contribution proceedings were in New South Wales and the parties had pleaded the New South Wales legislation. Leeming JA considered the claim substantive and asked whether its character was tortious or quasi-contractual. If tortious, the law of the place of the wrong could apply; if quasi-contractual, the relevant law might be that of the State with the closest connection. The Court left this point open because the Western Australian and New South Wales provisions material to the appeal were otherwise identical, and no relevant Western Australian qualification was said to apply.
The decision therefore provides reasoning on the questions before it, rather than a definitive resolution of the choice-of-law classification. The supplied judgment does not establish how later courts treated that discussion.
Key passages with plain-English translation
“It was not necessary for her to make further findings as to why he had not given that history earlier than he had.”
This expresses the Court’s distinction between the main factual issue and a subsidiary question about the witness’s motives or reasons. The judge had to decide whether the fall occurred, not necessarily why the accounts changed.
“This was no mere recitation of evidence, but an evaluation of its strengths, and weaknesses and the inherent probabilities.”
The Court found that the primary judge did more than list the records and testimony. She assessed how they fitted together and why she accepted one account.
“The medical histories none of which mentioned a fall did not incontrovertibly establish that Mr Simmons had not fallen.”
The early histories were important evidence, but their silence about a fall did not conclusively settle the factual issue. The Court treated that silence as material to be weighed, not as proof that made the later account impossible.
“The fact that, as a matter of administrative convenience, parts of the $550,000 paid by Ceva were directly transferred to Redbro's workers compensation insurer and Mr Simmons' lawyers has no impact upon Ceva's statutory entitlement to contribution.”
The Court focused on the substance of the payment. The fact that some money went directly to other recipients did not mean that those sums stopped being part of Ceva’s discharge of its liability arising from the judgment.
“The answer would only matter if the claim for statutory contribution be characterised as quasi-contractual...”
The Court identified why the choice-of-law question might matter in another case, but did not decide it here. The result did not depend on choosing between the potentially relevant State laws.
What fact patterns trigger this precedent
The judgment is relevant where an appeal challenges a trial judge’s acceptance of testimony because contemporaneous medical, employment, or insurance records give a different or less detailed account. It is particularly relevant when the trial judge’s reasons show that the conflicting evidence was considered and assessed, rather than overlooked.
It may also be relevant where a party argues that the trial judge had to identify why a witness’s account changed. The case shows that the need for a finding on that explanation depends on whether it is necessary to resolve the central controversy. The Court did not say that reasons for changed accounts can never matter; it held that resolving the main factual question was sufficient on this record.
For contribution disputes, the judgment may be relevant where an employer is a small company closely connected to an injured worker, including where the worker is a director or shareholder. The relevant point is that the company’s size and relationship with the worker do not, by themselves, eliminate the company’s separate capacity or its employer duty.
The decision also addresses contribution arguments based on a settlement between the injured person and a third party, including a settlement potentially affected by workers’ compensation provisions. It distinguishes the amount and allocation of a prior settlement from the court’s separate task of assessing contribution between tortfeasors.
How later courts have treated it
The supplied judgment contains no later judicial treatment of Redbro Investments Pty Ltd v Ceva Logistics. It cites and applies earlier authorities, especially Fox v Percy on appellate review of factual findings and Andar Transport Pty Ltd v Brambles Ltd on contribution and the separate legal identity of a company employing an injured worker.
The judgment refers to other New South Wales decisions concerning the need to “grapple” with conflicting evidence, including Mitchell v Cullingral, MM Constructions, Coote v Kelly, Keith v Gal, and Bunnings Group Ltd v Borg. It uses those authorities to explain that a judge must analyse the competing cases, rather than merely state a preference without explanation.
The materials provided do not show whether later courts followed, distinguished, or questioned Redbro. Any account of subsequent treatment would require sources beyond this judgment.
Still-open questions
The principal unresolved legal question is the choice-of-law characterisation of statutory contribution. Leeming JA considered whether contribution should be classified as tortious or quasi-contractual, but expressly found it unnecessary to decide. The judgment suggests that the answer could matter in a case where the relevant State statutes differ.
The judgment also leaves open the precise relationship between a plaintiff’s contributory negligence apportionment and the separate apportionment between two tortfeasors. Leeming JA noted that the two evaluative tasks might not be entirely identical. Redbro did not argue for a two-thirds/one-third division matching the consent settlement; it sought a minimal contribution, so the Court did not need to determine the limits of any argument based on the earlier contributory negligence figure.
The effect of s 151Z in negotiating or quantifying a settlement was not determined in detail. The argument was that the statutory defence might have caused Simmons to discount his claim against Ceva. The Court regarded the extent of any discount as speculative and reasoned that a discount would have benefited Redbro by reducing the amount potentially subject to contribution. Different evidence or a differently framed issue might require closer analysis.
Finally, the decision does not prescribe how a trial judge must assess all cases involving changed witness accounts. It confirms that contemporaneous records can be powerful evidence, but that the appellate court assesses the whole record and the trial judge’s reasoning. The outcome here depended on the particular evidence and the primary judge’s detailed assessment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (17 paragraphs)
[1]
Background
Mr Rodney Simmons was the sole director and shareholder of the appellant Redbro Investments Pty Ltd. His company owned a prime mover and had entered into a Contract Carriers Agreement with the respondent Ceva Logistics (Australia) Pty Ltd, then known as TNT Logistics (Aust) Pty Ltd. Mr Simmons was the designated driver under that agreement, pursuant to which a TNT trailer carrying vehicles would be towed around Australia. On around 18 January 2006, Mr Simmons sustained an injury during the course of loading the trailer at Ceva's Perth depot. There was at trial and on appeal a large issue as to how the injury was suffered, although it was common ground that Mr Simmons was in fact seriously injured around this time. It will be necessary to return to the conflicting evidence as to how the injury was suffered; for present purposes Ceva contended and Redbro denied that Mr Simmons' injury was sustained when he slipped and fell from the upper deck of the trailer.
Mr Simmons commenced proceedings in the District Court of New South Wales against Ceva in January 2009. His claim was ultimately particularised to be in excess of $2 million. Ceva's defence denied that the accident had occurred as alleged, alternatively alleged that Mr Simmons was guilty of contributory negligence, and in further answer relied upon s 151Z(2)(c) of the Workers Compensation Act 1987 (NSW). Mr Simmons made no claim against his employer, Redbro, nor did Ceva bring a cross claim against Redbro.
The action was compromised by consent orders filed on 8 December 2009 in the following terms:
"1. Verdict and judgment in favour of the plaintiff against the defendant in the sum of $550,000.
2. The parties agree that the entitlement to damages was calculated on the basis that the plaintiff was responsible for his own injury to the extent of one third.
3. Each party to pay his and its own costs of these proceedings.
4. Defendant to be at liberty to remit, from the said sum, such amount as is notified to it by the workers' compensation insurer as the amount to be reimbursed in respect of payments previously made to or on behalf of the plaintiff pursuant to the Workers Compensation Act.
5. No interest on judgment from:
(a) The date of entry of judgment; or
(b) The date of receipt by the defendant of an authority to receive; or
(c) Receipt by the defendant of a Notice of Charge from Centrelink; or
(d) Receipt by the defendant of Notice of Past benefits from Medicare, or Notice of Judgment or Settlement signed by or on behalf of the plaintiff authorising payment of 10% of the judgment to Medicare;
whichever is last."
Mr Simmons' solicitors wrote on 14 December 2009 to GIO's recovery officer advising that the matter had settled and requesting "that there be a 1/3rd deduction in the payback. Please advise of the payback".
GIO's response was that:
"GIO [is] looking to receive cheque for $104,258.53 for full and final recovery from Mr Simmons' Workers Compensation claim costs.
This amount represents 2/3 of full cost of his Workers Compensation claim, total $156,387.96."
Accordingly, the settlement payment by Ceva was disbursed as follows:
1. $104,258.53 was paid to GIO, refunding to it two thirds of amounts paid by GIO to Mr Simmons following his claim for workers compensation;
2. $174,522.92 was paid to Mr Simmons' solicitors for professional costs and disbursements; and
3. the balance, $271,218.55, was paid to Mr Simmons.
On a basis that was not explained, the trial judge was persuaded, on 17 December 2009, final orders disposing of the litigation having been made by consent a fortnight before, to give short reasons pursuant to which his Honour purported to assess the percentage of contributory negligence as one-third (coincidentally, in accordance with what had already been ordered). Quite properly, neither party placed any reliance upon those reasons during the hearing of the appeal. Subject to there being some explanation not apparent on the face of the appeal books, it was wrong for an application to be made to his Honour, and it was wrong for his Honour to accede to it. His Honour (who has since retired) was not hearing and disposing of an action in accordance with s 44 of the District Court Act 1973 (NSW); the action had been resolved when Mr Simmons obtained a verdict and judgment in his favour. His Honour was not exercising judicial power resolving a controversy between the parties; there was no controversy between the parties. His Honour was not giving reasons for the making of any orders, for orders disposing of the proceedings had already been made. His Honour should have declined to entertain the application: see Workers Rehabilitation and Compensation Corporation v Dingle [1994] SASC 4816 at [5], where King CJ said with the agreement of Millhouse and Perry JJ that where there was no longer any issue or dispute between the parties and the questions raised had become moot, the Court should decline to determine them. In any event Redbro was not party to this "judgment".
[2]
Ceva's claim for statutory contribution and the applicable law
Later in December 2009, Ceva commenced proceedings against Redbro, seeking statutory contribution from Redbro as another tortfeasor pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) or s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (both statutes were pleaded in the alternative).
Although the injury occurred in Western Australia, the Workers Compensation Act 1987 (NSW) was applicable to a claim by Mr Simmons against Redbro, and therefore s 151Z was available to Ceva in partial answer to Mr Simmons' claim against it. This came about because Mr Simmons was employed throughout Australia, while his employer's principal place of business was New South Wales: see s 9AA(3)(c). (A counterpart provision in s 20(4) of the Workers' Compensation and Injury Management Act 1981 (WA), in materially identical terms, ensured that the Western Australian Act did not apply.)
By the time the pleadings reached their final form, Ceva and Redbro were agreed that the New South Wales legislation governing statutory contribution was applicable, although they were unable to explain the basis of their agreement when asked by the presiding judge to do so when the appeal was heard. Contrary to what the parties had agreed, I doubt that the New South Wales Act applies. The question lacks neither difficulty nor importance.
The difficulty comes about in large measure because choice of law rules remain, in this country, essentially judge-made, and have never coped particularly well with rights under statute. Professor Briggs describes this as "the Achilles' heel of common law private international law": A Briggs, Private International Law in English Courts, Oxford University Press, 2014, p 13. Despite its difficulty, it is the necessary starting point for analysis. The parties' agreement does not displace the Court's obligation to identify the applicable law. No court is bound by propositions of law on which the parties agree: Clodumar v Nauru Lands Committee [2012] HCA 22; 245 CLR 561 at [66]. As Sir George Jessel MR said long ago, "The Court is bound to give judgment according to law": Chilton v Corporation of London (1878) 7 Ch D 735 at 740.
The analysis, as I see it, is as follows. First, at no stage was federal jurisdiction being exercised. That fundamental question must be asked, and answered, before turning to choice of law, for the reasons given by Allsop P, Basten JA and Handley AJA: "The importance of this early enquiry, in every case, is that the answer to it may affect the law applicable to the controversy": CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; 261 ALR 441 at [22] (original emphasis); see also Eberstaller v Poulos [2014] NSWCA 211; 313 ALR 165 at [14]. It follows that ss 79 and 80 of the Judiciary Act 1903 (Cth) are not engaged so as to identify the applicable law, in accordance with what was said in, for example, Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 at [8]-[9].
[3]
The reasons of the primary judge
Ceva's contribution proceeding was heard and determined in 2010, but was subject to an appeal in this Court (differently constituted), leading to a retrial before a different primary judge. They were heard by the primary judge over five days in February and March 2014, and determined on 16 April 2014. I mention this in order to explain (a) the lengthy delay and (b) how it was that Mr Simmons came to be cross-examined three times, years after the event, about the events of January 2006.
Her Honour's reasons are extremely lengthy. Although they have the advantage of a table of contents, they occupy 63 single-spaced pages, without numbered paragraphs, and with lengthy quotations reproduced in miniscule font.
Roughly the first half of the reasons deals with the evidence and submissions leading to her Honour's conclusion that Mr Simmons was a witness of truth and the accident happened in the way that he had testified; this is addressed below, in dealing with grounds 1-4 of the appeal. Her Honour thereafter determined that Redbro had breached its duty to provide a safe system of work; no challenge was made to this on appeal. Her Honour then dealt with apportionment (pp 36-46), including dealing with Redbro's submissions that apportionment should be nil or minimal having regard to s 151Z(2) and the finding of contributory negligence in 2009. Her Honour found that "the plaintiff and the defendant were equally responsible for the damage and it is just and equitable that they bear equal apportionment for any liability". Redbro challenges this in grounds 6 and 7(i), (ii) and (iii) of the appeal.
Her Honour then addressed Redbro's contention that the $174,522.92 paid to Mr Simmons' lawyers from the judgment sum of $550,000 ought not be part of the apportionment, and rejected the submission. This is the subject of grounds 7(iv) and 8 of the appeal. Her Honour then (pp 48-62) quantified damages under the Workers Compensation Act 1987 (NSW). It is not necessary to say anything about her Honour's methodology save that her Honour ultimately relied upon the different and slightly lesser sum calculated by Ceva in its revised schedule of damages dated 20 March 2014 (a document not contained in the appeal books because no aspect of it was disputed) of $534,102. Her Honour applied an apportionment of 50% yielding a judgment sum of $267,051. When interest was added, a total judgment sum of $356,029.20 was ordered.
[4]
Grounds 1-4 - error in accepting the evidence of Mr Simmons?
Grounds 1-4 involved a challenge to the acceptance by the primary judge of the testimonial evidence of Mr Simmons, corroborated by the testimonial evidence of another driver, Mr Leighton. Redbro referred on appeal, as it had at trial, to a series of histories recorded by treating medical practitioners relatively shortly after the alleged injury on 18 January 2006, all of which predated and were inconsistent with Mr Simmons' case at trial, which was that he had fallen.
Mr Simmons drove away after the incident of which he complained in January 2006, from Perth to Darwin. He said that thereafter he drove to Adelaide, then to Brisbane, before returning to Sydney. If an incident form was completed and given to Ceva on the day, it was not in evidence. Hence, the first report made by him of his injury was some three weeks later, to his general practitioner Dr Grinbergs in Sydney, whom he saw on 6 February 2006.
[5]
Nine histories not mentioning a fall
Redbro placed heavy reliance on histories thereafter given by Mr Simmons. First, there was an "initial" WorkCover NSW medical certificate, completed by two hands. The lower half was dated and signed by Dr Grinbergs on 6 February 2006. Its top half was completed by another hand, and included a claim number. It described a diagnosis of L5/S1 disc prolapse and said that the injury occurred "loading truck". The date of injury was stated to be 10 January 2006. The document was attached to a claim by Redbro upon its workers' compensation insurer GIO made by letter dated 26 April 2005 [scil 2006]. It made no mention of a fall.
Secondly, a progress WorkCover medical certificate dated 17 March 2006 was in identical terms (including as to how the injury occurred and the date being stated as 10 January 2006).
Thirdly, on 24 February 2006, Redbro submitted a completed form to its broker, Shield Insurance Brokers Pty Ltd, claiming a sickness benefit, on a private health insurance policy. The header of the form bears a fax stamp of 7 February 2006. The form comprised three sections. The first was a certification by the claimant. It contained two mutually exclusive sections: one for claims for an injury, the other for claims for a sickness. The section for claims for an injury was struck through. The section for claims for a sickness was completed. It stated that the sickness was not caused or contributed to by work, but caused Mr Simmons to completely cease work. It disclosed an earlier back injury, in 2004, which Mr Simmons had suffered. It stated that he was being treated with physiotherapy three times a week, and it was dated and signed 22 February 2006. Section 2 appears to have been completed by Dr Grinbergs, who also disclosed the 2004 injury. Extensive submissions were made about the answers given to questions 8 and 9 on the form which are as follows:
"If a patient sustained an injury, what are the circumstances of the injury?
NO INJURY
On what date did the injury/accident occur?
N/A"
Dr Grinbergs had signed his declaration on 22 February 2006. The third section was a financial certification, which is not presently relevant.
Fourthly, there is a claim form signed by Mr Simmons made upon Redbro's workers' compensation insurer, GIO. In answer to the question how the injury occurred, it is written:
"While loading cars onto trailer I experienced pain in my lower back."
[6]
Testimonial evidence that Mr Simmons fell
More than two years after the incident, and having retained Slater & Gordon, Mr Simmons saw an orthopaedic surgeon, Dr Abraszko, on 23 May 2008 at his lawyers' request. He gave a different history as follows:
"He has been a long distance truck driver since 1986.
He was over at Perth just after lunch, 18th January 2006 and he was up on the top deck of a car carrying B-double trailer when he fell, on the inside, through the 2 storeys down to the bottom of the deck.
He said he hurt his back. There being no previous histories of these symptoms or injuries."
(It may be noted that there is no mention in this history of the 2004 back injury.)
Thereafter, Mr Simmons consistently claimed that he had been injured by a fall. He did so when cross-examined through three trials. His original claim against Ceva was compromised after he had been cross-examined, and he was called by Ceva and cross-examined by Redbro at both trials on Ceva's claim for statutory contribution.
Ceva also called another witness, Mr Leighton, who had been attending his semi-trailer at the time. Mr Leighton did not see any fall. He said he was facing away, he heard "a commotion" and saw Mr Simmons on the bottom deck of his trailer.
[7]
Evaluation of the conflicting evidence by the primary judge
The primary judge was acutely aware of the discrepancy between the early claims and medical records and Mr Simmons' consistent evidence thereafter, including in three hearings where he was cross-examined (once by counsel for Ceva before his claim was settled, and twice by counsel for Redbro), to the effect that he fell from the top of a trailer, and the absence of any such history recounted to the numerous medical practitioners whom he saw relatively shortly after the event. Her Honour devoted 17 single spaced pages to a recitation of the competing and conflicting documentary and testimonial evidence. Her Honour correctly described the actual question she was called upon to resolve at page 5:
"The version advanced in these proceedings (and in Mr Simmons' claim against the plaintiff) does not seem to have appeared until about 2008, after Mr Simmons had consulted solicitors."
Her Honour found that Mr Simmons was "neither an educated nor a sophisticated man", and noted that:
"It is tempting to accept the defendant's contention that the early versions are true; and the later ones a fabrication in the inclusion of a fall. He was not really able to offer a particularly good explanation, although he denied making up the story about the fall."
However, her Honour found that Mr Simmons was a "witness of truth and I accept Mr Simmons' testimony as to how he injured his back." Her Honour plainly placed reliance upon the way in which he gave evidence, finding that he "was an honest and frank witness, testifying directly and openly when he appeared in the witness box". Her Honour also relied upon the corroborative evidence of Mr Leighton. It had not been put to Mr Leighton that he had concocted his evidence. Her Honour concluded that:
"It is effectively common ground that Mr Simmons was on the top deck before he injured himself (although the defendant disputes the fall) loading vehicles on the top deck; and then suddenly after a "commotion" to use Mr Leighton's term, Mr Simmons was stuck on the bottom deck needing assistance to get out of the trailer.
That simple fact entirely corroborates Mr Simmons' evidence that he fell; and I accept it. The point of consistency is striking. Mr Simmons was loading a car on the top deck of his trailer; then suddenly ended up on the base of his trailer with one leg through the base such that he had to be helped out of the trailer by Mr Leighton. That position is compatible only with a fall, which Mr Simmons says happened."
[8]
Redbro's submissions on appeal
Redbro conceded, properly, that this was not a case where the primary judge had failed to consider the competing evidence before her. Even so, Redbro submitted that her Honour's findings accepting Mr Simmons' testimony disclosed appellable error.
First, it was said that by failing to determine why Mr Simmons did not tell the whole story at the start ("I shall refrain from speculating"), her Honour had failed to "grapple" with the competing testimony, in the sense in which that verb is used in this context. As it was put orally, "what we say is that a proper grappling with that evidence instead of refraining from speculating about it would have led her Honour to the position where she was unable to find tortious damage had occurred and unable to find that Redbro was a tortfeasor".
Secondly, it was said that her Honour's reference, twice, to Mr Leighton "suddenly" discovering Mr Simmons on the bottom deck of his trailer after hearing the commotion, was not well-founded in the evidence.
Thirdly and more generally, it was said that the overpowering nature of the consistent histories told to seven practitioners, all of which failed to mention something which must have been obvious and memorable, such as a fall, made this a case where more careful attention was required than had been given in order to accept the testimonial evidence of Mr Simmons and Mr Leighton.
[9]
Resolution of grounds 1-4
I would reject Redbro's submissions on grounds 1-4. As for the first aspect of Redbro's submissions, there are a variety of reasons why Mr Simmons may not have mentioned a fall at the outset. Redbro's case at trial was that it was Mr Simmons' private insurer's notification that his insurance was shortly to expire which led him to his solicitors and his new claim against Ceva. Alternatively, Mr Simmons may have felt reluctant to make a claim against the company which provided work to Redbro and indirectly to him as a driver. There are many other possibilities. Some are innocent, others less so, such that their acceptance would require her Honour to be comfortably satisfied in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and s 140 of the Evidence Act 1995 (NSW) before reaching a conclusion.
However, her Honour focussed upon the central question: did Mr Simmons injure himself by falling from the top of the trailer in January 2006? Because she formed the view that she was able to resolve that factual controversy in his favour, it was not necessary for her to make further findings as to why he had not given that history earlier than he had. That economical approach to factual finding, far from disclosing error, is in accordance with orthodox principles.
The authorities on which Ceva relied do not assist it. Ceva's invocation of the need to "grapple" with the evidence picks up repeated statements that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134], Coote v Kelly [2013] NSWCA 357 at [39]-[52], Keith v Gal [2013] NSWCA 339 at [109]-[119] and Bunnings Group Ltd v Borg [2014] NSWCA 240 at [36]. The point of the metaphor is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."
[10]
Ground 5 - error in admitting medical histories on a limited basis?
Ground 5 challenges making of orders pursuant to s 136 of the Evidence Act 1995 (NSW) limiting the use to which evidence of the medical histories recorded in documents prior to 2008 could be used. The plaintiff Ceva, which called Mr Simmons in its case, tendered various medical reports on a limited basis: "as the history obtained by the doctor but not as evidence of the contents of the statement". No objection was taken to that course. Nor was it sought by Redbro to tender those reports on a broader basis.
However, in Redbro's case, senior counsel sought to tender other medical reports on an unlimited basis. Her Honour stated that she would make the same order with respect to those histories as well. Her Honour said "[t]he history is the history is the history" and added "I'm going to make a generic ruling frankly at this stage that it's true of all the specialists - it's already been - the order's already been made in a number of the plaintiff's ones but we're going to have an equal access rule, a history is a history is a history". Redbro submitted that this disclosed appellable error.
It is not necessary to address all aspects of this ground, including one which looms large: the reluctance with which this Court would interfere with the evidentiary rulings made at trial, especially orders which treated both parties alike. It is sufficient to say that the limiting order did not materially impact upon her Honour's determination of the factual question. Redbro submitted that there was injustice in the limiting order because the evidence of the histories originally given by Mr Simmons was "crucial" to whether or not an injury occurred by way of a fall. Her Honour evidently had regard, as she was entitled to, to the early medical histories in her assessment of Mr Simmons' credit. There is no basis in her Honour's reasons for concluding that the limiting order had any impact upon her Honour's approach to the key contested question of fact. When pressed with this in oral submissions, counsel said "If that ruling had not been made, her Honour would have had to deal with it as evidence of the facts in the case. That's the point." But I cannot agree with the implicit complaint that her Honour did not deal with the histories as evidence relating to the contested fact as to whether or not Mr Simmons fell. This is precisely what her Honour did. Accordingly, this ground falls away. Of course, if she had disbelieved Mr Simmons' testimony, she would have been left without evidence of the contrary explanations, but that issue did not arise, and the lack of affirmative evidence probably would not have affected the result then available if it had.
[11]
Ground 9 - failure in stopping further cross-examination of Dr Grinbergs?
It is convenient to address the final ground of appeal, ground 9, at this point, which is related to grounds 1-5. The appellant complained that in the course of cross-examination of Dr Grinbergs on his writing "no injury" on the WorkCover certificate, counsel was stopped from further cross-examination. Her Honour found that Dr Grinbergs' evidence was "unshaken" notwithstanding that, as it was submitted, her Honour stopped further cross-examination on that point.
During his cross-examination, Dr Grinbergs was taken to the "no injury" answer he had written. He said that he understood it to refer to the 2004 occurrence. There was then this exchange:
"Q: I want to suggest to you that you're wrong about that because had it referred to the previous occurrence‑
Her Honour: No, you can't do that. In fact, you can say he got it wrong because of that but you can't say his interpretation is wrong because his answer is wrong."
There ensued an exchange between both counsel and the primary judge where Redbro contended that it wished to put that the doctor was wrong in his understanding. He then asked this question:
"Q: I want to suggest to you that that was not your understanding about question 9 and that you in fact understood it to mean what was complained about on 6 February 2006.
A: No."
There was then a further objection, which led to counsel for Redbro saying that he did not wish to be criticised for not putting that he was incorrect in his understanding. Counsel for Ceva appears to have confirmed, although the transcript is not entirely clear, that no criticism would be made.
Although some questions were objected to, and her Honour indicated in response to a submission that the cross-examination was becoming badgering that "the issue was pretty fairly drawn" and invited the cross-examiner to "move on", at no stage was the cross-examiner prevented from continuing. It is understandable that counsel did move on, but the premise of this ground, that "her Honour stopped further cross examination" of Dr Grinbergs on that point, is not made out. That is sufficient to reject it.
But I would add that there is an air of unreality to this ground which would prevent its acceptance even if contrary to the fact the cross-examination had been stopped. First, her Honour's acceptance of what Dr Grinbergs thought he was doing when completing the form "no injury" was far from being a "critical finding of fact". Dr Grinbergs was not asked whether he had an independent recollection of his completing the claim form some eight years earlier. It is true that parts of his answers suggest that he did, but that is typical of many witnesses' responses to a hostile cross-examination. The near certain reality is that he had no independent recollection of it at all (that is not to convey any criticism of him).
[12]
Grounds 6 and 7(i), (ii) and (iii) - errors in apportionment?
Redbro did not challenge the finding that it was a tortfeasor, nor that, in the event that Mr Simmons' injury occurred as he alleged, it was another tortfeasor whose breach of duty as employer had caused the same loss for the purpose of statutory contribution. However, in a variety of ways, Redbro sought to establish error in her Honour's determination that the "just and equitable" apportionment between it and Ceva was 50%.
Redbro's submissions repeated submissions advanced to and rejected by her Honour. Having rejected them, her Honour's essential reasoning was that the relatively small step of applying some non-slip tape to the trailer would have prevented the injury. Although Ceva owned the trailer, and could readily have done so, Redbro could just as easily have asked Ceva to so. Her Honour found that Redbro's breach was more egregious, because it "was not prepared to waste its money on its employee's safety despite full appreciation of the risk". Overall, those considerations balanced one another out, resulting in a 50% apportionment.
[13]
Commercial reality
Redbro appealed to what it said was the commercial unreality of her Honour's reasoning process. It did so in two related ways. Redbro's principal submission was that:
"This was a case where we had a proprietary limited company, a single director, a single employee. It's unrealistic to think that Redbro, the company acts - even though at law it acts different and that's considered differently - the actions can only have been taken by Mr Simmons and it's those factual matters, we say, bore analysis in terms of once one worked out the apportionment."
That submission is to be rejected for the same reason that the same submission was rejected in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424. That case bears a close resemblance to the facts of this appeal. There, as here, a transport company dealt with a corporation which owned a prime mover for the purpose of hauling trailers. There, as here, the driver, Mr Wail, injured himself while loading the trailer. There, as here, the driver sued the transport company, obtaining a judgment in his favour, subject to a finding of contributory negligence. There, as here, the transport company then sought statutory contribution against the company which employed the driver, who was also one of its two directors and shareholders.
In Andar as in this appeal, senior counsel for the company made these submissions: see 217 CLR at 426:
"The Court of Appeal should have concluded that it was not just and equitable to have awarded the respondent any contribution, as the system of work undertaken by Wail had been wholly devised by the respondent, which required the appellant to comply with it. The jury having found contributory negligence on the part of Wail, a further award to the respondent of contribution would constitute an undeserved windfall."
The joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ rejected those submissions. The joint judgment proceeded on the basis that an employer's duty was non-delegable and universal, irrespective of the size of the employer and whether or not the employer takes any share in the conduct of the operations: at [34], and was imposed solely on the employer in its capacity as employer: at [44]. Their Honours there said that "any breach of duty committed by Andar was inherently different in scope and effect from any negligence of Mr Wail at the time of the accident" and agreed with the dissenting reasons of Dawson J in Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; 163 CLR 611 at 625 and the reasons of Mason JA in Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 at 389-390.
[14]
Section 151Z
Redbro further relied on s 151Z of the Workers Compensation Act 1987 (NSW). This is not the occasion fully to consider that complicated provision, not least because the submission as advanced orally was refined. The point was that Ceva had pleaded in its defence to Mr Simmons' action that it was entitled to the benefit of s 151Z. How that was taken into account in resolving a claim particularised in excess of $2,000,000 to a settlement of $550,000 with the parties paying their own costs was not the subject of any evidence. Senior counsel said:
"All I'm saying is that because Mr Simmons in that case was faced with a pleading that he hadn't sued the employer, that was a reason for him to discount his case. If the percentage of culpability to the employer in his mind was very high there could well have been a significant deduction from the quantum of damages that he would be entitled to recover, but we don't know."
There is nothing in this point. Let it be assumed that the settlement was discounted in part because Ceva had a partial defence under s 151Z. The extent to which that occurred is wholly speculative. But whether the discount was large or small, it operated to the benefit of Redbro, insofar as it reduced the amount which could be the subject of a claim for statutory contribution by Ceva. More fundamentally, the discount to which Mr Simmons and Ceva agreed could have no impact upon the determination by the Court of what was "just and equitable" contribution as between Ceva and Redbro.
What emerges clearly from the joint judgment in Andar is that the evaluative task required by the statute is very broad. I am far from sure that the approach to be followed by a trial judge apportioning liability between two tortfeasors is entirely identical to that involved in apportioning liability between plaintiff and defendant where there is contributory negligence. However, it is clear that appellate restraint, resembling the deference given to evaluative judgment associated with Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, applies to the apportionment between tortfeasors: the findings at first instance cannot readily be characterised as right or wrong: Tarabay v Leite [2008] NSWCA 259 at [29]-[35]; Nominal Defendant v Green [2013] NSWCA 219 at [48]. Having rejected the particular challenges to apportionment advanced by Redbro, I do not see any error in the reasoning process employed by the primary judge, nor do I regard her Honour's conclusion of equal apportionment as outside a permissible range. These grounds should be dismissed.
[15]
Ground 7 (iv) and 8
The consent judgment dated 3 December 2009 and entered 8 December 2009 was in favour of the plaintiff in the sum of $550,000 with "each party to pay his and its own costs of these proceedings". It was established on the evidence that from the $550,000 paid by Ceva, $174,522.92 was remitted to Mr Simmons' solicitors, Slater & Gordon for payment of his legal costs. The balance of $271,218.55 was paid to Mr Simmons.
The appellants fastened upon the payment of $174,522.92 to Mr Simmons' solicitors, and submitted that they should not be required to contribute to any part of that amount. Her Honour rejected the submissions, saying that "there is a world of difference between an order that costs be paid by a party and a litigants' decision to apply some, or even all, of his judgment sum to the payment of his legal cost in the litigation" and that although the costs may have been costs that Mr Simmons was required to pay his solicitors, they were not costs which Ceva was "required" to pay Mr Simmons. Redbro advanced the same submissions on appeal.
Her Honour was correct to reject the submission. The question posed by statute is whether Redbro is a tortfeasor liable in respect of the same damage for which Ceva was liable to Mr Simmons. Ceva's primary liability to Mr Simmons was established by the consent judgment in the amount of $550,000. True it is that that judgment also crystallised separate liabilities incurred by Mr Simmons to make payments, which were expressly contemplated on its face. First, Mr Simmons was liable to make a repayment to his employer Redbro (which in turn was required to repay its insurer) of a proportion of the workers compensation payments received by him (by reason of s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW) read with s 10(2) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW): see Hickson v Goodman Fielder Ltd [2009] HCA 11; 237 CLR 130). Secondly, Mr Simmons may also have been liable to make repayment of Medicare benefits received (by reason of s 8 of the Health and Other Services (Compensation) Act 1995 (Cth)); provision was made for this in order 5. Thirdly, it may readily be inferred that the obtaining of judgment in his favour caused Mr Simmons to become liable to pay his solicitors, who were retained on a contingent basis.
The fact that, as a matter of administrative convenience, parts of the $550,000 paid by Ceva were directly transferred to Redbro's workers compensation insurer and Mr Simmons' lawyers has no impact upon Ceva's statutory entitlement to contribution. The $104,258.53 paid by Ceva to GIO was in discharge of (a) Mr Simmons' obligation to repay Redbro and (b) Redbro's obligation to repay GIO. The $174,522.92 paid by Ceva to Slater & Gordon was in discharge of Mr Simmons' obligation to pay that firm. However, every dollar paid by Ceva was in discharge of its primary obligation to Mr Simmons, to pay him two thirds of the damages sustained by reason of its negligence. That was the amount as to which it was entitled under statute to seek just and equitable contribution.
[16]
Orders
For those reasons, I propose that the appeal be dismissed, with costs.
SIMPSON J: I agree, for the reasons given by Leeming JA, that the appeal should be dismissed with costs.
[17]
Amendments
09 November 2015 - [18] - "had" inserted before "been said by Bray CJ"
[20] - "the Act" replaced by "the New South Wales Act"
11 November 2015 - [12] - Title of the WA Act corrected
[72] - "with which with" replaced by "with which"
[73] - "a" inserted before "variety"
[76] - "[2004] HCA 424" replaced by "[2004] HCA 28"
[78] - "even if the employer" replaced by "whether or not the employer"
[92] - "$104.258.53" replaced by "$104,258.53"
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Decision last updated: 11 November 2015
Parties
Applicant/Plaintiff:
Redbro Investments Pty Ltd
Respondent/Defendant:
Ceva Logistics
Legislation Cited (11)
Workers' Compensation and Injury Management Act 1981(WA)
Western Australia, the Workers Compensation Act 1987(NSW)
Allyacht Spars Pty Ltd [1987] HCA 68; 163 CLR 611
Nominal Defendant v Bagot's Executor & Trustee Co Ltd [1971] SASR 346
Nominal Defendant v Green [2013] NSWCA 219
Peate v Federal Commissioner of Taxation [1964] HCA 84; 111 CLR 443
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378
Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362
Tarabay v Leite [2008] NSWCA 259
Workers Rehabilitation and Compensation Corporation v Dingle [1994] SASC 4816
Texts Cited: A Briggs, Private International Law in English Courts, Oxford University Press, 2014
M Davies, A Bell and P Brereton, Nygh's Conflict of Laws in Australia, LexisNexis, 9th ed, 2014
J Wade, "Joint Tortfeasors and the Conflict of Laws" 6 Vand L Rev 464 (1953)
Category: Principal judgment
Parties: Redbro Investments Pty Ltd (Appellant)
Ceva Logistics (Australia) Pty Ltd (Formerly TNT Logistics (Aust) Pty Ltd) (Respondent)
Representation: Counsel:
S Harben SC with A Combe (Appellant)
G J Parker SC (Respondent)
Judgment
BASTEN JA: I agree that this appeal must be dismissed with costs, for the reasons given by Leeming JA.
LEEMING JA: It was not disputed that Mr Rodney Simmons, a truck driver, was seriously injured in 2006, although how that occurred was and is highly contested. Mr Simmons was employed by the appellant Redbro, a company of which he was the sole director and shareholder, and which owned the prime mover he drove. The respondent Ceva contracted with Redbro to haul trailers around Australia. Mr Simmons claimed that, while loading the trailer in Perth, he fell and was injured. Ceva was held liable to Mr Simmons in the amount of $550,000 on the basis that Mr Simmons' contributory negligence was one third. Ceva then sued Redbro in separate proceedings, seeking statutory contribution.
Redbro defended the contribution proceedings on two main bases. First, it submitted that the injury had not occurred in the way Ceva and Mr Simmons contended, drawing support from contemporaneous documents which were inconsistent with Ceva's case and Mr Simmons' testimony at trial. In this endeavour it failed. On appeal, it challenges the primary judge's acceptance of Mr Simmons as a witness of truth, acknowledging that its challenge is subject to the strictures identified in Fox v Percy [2003] HCA 22; 214 CLR 118. Secondly, it submitted, in a variety of ways, that the corporate structure which permitted Ceva to seek contribution from Mr Simmons' company after having compromised Mr Simmons' personal claim against it should lead to the result that contribution should be nil or minimal. The primary judge rejected these submissions too. They are in substance repeated on appeal.
Appeal dismissed with costs. The primary judge’s finding that Mr Simmons fell, the finding of Redbro’s liability, the equal apportionment, and the treatment of the relevant judgment payments were not disturbed.
Secondly, it is essential to identify the character in law of the claim for statutory contribution, and then to determine the applicable choice of law rule for that claim: Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362 at [25]. Consistently with what was held in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [102], as laws which bear upon the existence, extent or enforceability of remedies, rights and obligations, the statutes permitting contribution between tortfeasors should be characterised as substantive, not procedural. It then becomes necessary to ask whether that character is tortious, in which case Western Australian law would apply as the lex loci delicti. Alternatively, it may be quasi-contractual, in which case the choice of law rule points to the law of the State with which Redbro's obligation to make contribution has the closest connection.
In Baldry v Jackson [1977] 1 NSWLR 494 at 499-500 it was concluded that a claim for statutory contribution should be classified as delictual, rather than quasi-contractual, for this purpose. I doubt that can now be so, if indeed it ever was the case, although some support may be found from United States decisions: see J Wade, "Joint Tortfeasors and the Conflict of Laws" 6 Vand L Rev 464 at 472-476 (1953). That conclusion was, at the time, contrary to what had been said by Bray CJ - whose judgments in this area warrant high regard - in a series of decisions including Nominal Defendant v Bagot's Executor & Trustee Co Ltd [1971] SASR 346 at 365-366. It does not accord with what was said by Lord Hoffmann in FFSB Ltd v Seward & Kissel LLP [2007] UKPC 16 at [22] (albeit in a different context) to the effect that a claim for statutory contribution, although founded on a tortious claim, was not tortious. It is criticised in M Davies, A Bell and P Brereton, Nygh's Conflict of Laws in Australia, LexisNexis, 9th ed 2014 at [20.47]. Most importantly, it is difficult to reconcile with the analysis in Sweedman at [29] of a similar statutory right to recover a partial statutory indemnity reflective of the extent to which damage was attributable to the indemnifying person's act, default or negligence. It was there said:
"The requirement to fix the appropriate degree of attribution to the negligence of the tortfeasor before quantification of the amount recoverable by the Commission on the indemnity, suggests a characterisation more akin to indebitatus assumpsit than to the old action of debt. In that vein, in the present case, Nettle JA described the right of indemnity as 'enforceable as a quasi-contractual cause of action in the nature of a quantum meruit'. That view of the matter was consistent with the view of Bray CJ on analogous provisions in other legislation. On that classification, and as explained by Bray CJ in the authorities just cited, for the purposes of the choice of law rules, the law applicable to the action, the lex causae, will be the law of the State with which the obligation of the appellant to indemnify the Commission has the closest connection" (citations omitted).
It is not necessary to resolve the characterisation question finally. The answer would only matter if the claim for statutory contribution be characterised as quasi-contractual and the law of the State with which the obligation on the part of Redbro to make contribution to Ceva has the closest connection were not Western Australia. But there is surely much to be said for the view that Western Australian law applied, either as the lex loci delicti or as the law with the closest connection to the determination of the amount of contribution that was "just and equitable" as between Ceva and Redbro arising from their tortious conduct in Perth in January 2006. I struggle to see how Ceva's and Redbro's status as tortfeasors, based upon events all of which occurred in Western Australia, is altered by the consent judgment obtained from the District Court of New South Wales. Nor do I see why, had a judgment been obtained from the Supreme Court of Victoria, the more broadly worded provisions of the Wrongs Act 1958 (Vic) would apply, a concern shared by Bongiorno J in Fluor Australia Pty Ltd v ASC Engineering Pty Ltd [2007] VSC 262; 19 VR 458 at [51].
If anything turned on this, I would have favoured inviting the parties to make further submissions. Ultimately, nothing turns on the question in this case, because none of the qualifications in s 7(1A) and (1B) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) were said to be applicable, and the Western Australian provision is otherwise identical to s 5(1)(c) of the New South Wales Act. I have set out the foregoing because it is not difficult to contemplate cases where the question could be material.
The claim disclosed the 2004 injury and was signed and dated 31 March 2006. However, it stated that the "date given to GIO" was 21 April 2006. It also provided a space for including additional information, which was filled in hand as follows:
"At time of injury I was working in Perth. I was then loaded for Darwin, then Adelaide, then Brisbane before returning to Sydney. The pain became increasingly worse & I could only drive for approx 2 hrs without stopping. On my return to Sydney I consulted my doctor on 6/2/06. I was off work until returning on 7/3, 8/3, 9/3/06 then 14/3-17/3/06 at which time I was unable to continue. See attached for physio dates. These have been claimed through my health fund, the excess being paid by myself. Physiotherapy [then] continued three times weekly."
Fifthly, by letter dated 26 April 2006, Mr Simmons on behalf of Redbro sent to GIO a series of WorkCover certificates "as requested". The letter was described:
"Attention Samantha
Re claim No P165372J157 - Rodney Simmons"
Plainly a claim number had been allocated by GIO prior to this being sent. When precisely this occurred was not established on the evidence (it will be seen that it must have been March or April, and more likely the latter; nothing turns on this). The letter stated that it enclosed the first two WorkCover medical certificates. Two further certificates were completed in Dr Grinbergs' hand dated 13 and 21 April 2006. Save that the date of injury in each case was described as 18 January 2006 (in the case of the latter, it appears that a date of 10 January was amended so as to become 18 January), none referred to any fall and all described the injury as occurring "while loading truck".
Sixthly, on 26 April 2006, Mr Simmons was examined, at home, by a consultant, who recorded this history from Mr Simmons:
"Mr Simmons reported he was tightening a wheel strap to secure a vehicle on the trailer of his truck when he felt a snap in his back. Mr Simmons advised he continued to work, in a hunched over position, requesting assistance from other drivers to load the remaining cars on his trailer. Once 9 cars had been loaded onto his truck, Mr Simmons advised he left Perth.
Mr Simmons advised he travelled from Perth to Darwin in 4 days, from Darwin to Adelaide in 2 days, then travelled from Adelaide to Brisbane where he was advised to return to Sydney immediately by a previous supervisor at the Brisbane depot. Mr Simmons reported he returned to Sydney on 6 February 2006 with 5 vehicles on the trailer of his truck.
Mr Simmons reported he immediately drove to see Dr Peter Grinbergs, nominated treating doctor upon returning to Sydney on 6 February 2006. Mr Simmons reported he received a WorkCover Medical Certificate certifying him unfit for work. He advised he had been certified unfit for work by Dr Grinbergs since the date of first consultation.
Mr Simmons reported Dr Grinbergs had ordered an x-ray, which showed an L5/S1 disc prolapse. Mr Simmons explained he was referred for physiotherapy treatment immediately. Mr Simmons reported he was initially attending physiotherapy sessions three times per week, although the sessions had decreased in frequency and at the time of the Initial and Workplace Assessment he was attending physiotherapy once per week. Mr Simmons reported he was referred to a neurosurgeon to determine the necessity of the surgery."
Once again there was no mention of any fall. A copy of the occupational therapist's report was sent to both Mr Simmons and Dr Grinbergs.
Seventhly, on 3 May 2006, Mr Simmons consulted a specialist who reviewed a CT scan and recommended an MRI to establish the level of decompression of the nerve root. Her letter dated 3 May 2006 referred to the following history:
"On 18 January 2006 in Perth whilst driving a truck, he had to put a strap around some cars and try to wrench it. Since then he had significant and immediate pain in his lower back on the right side. He told his manager in Perth and he commenced painkillers and continued his trip through the West Coast to Brisbane. When he returned to Sydney, he saw his local doctor and had a CT scan done. He was off work for four weeks, and thinking that he had a lot of improvement, returned to work for one week only. He has now been off work for 2 ½ months with no improvement."
Again there was no mention of any fall.
Eighthly, on 9 June 2006, Mr Simmons was referred to a consultant neurologist and neurophysiologist whose handwritten notes (described as a "patient cover sheet") and letter of the same day, were in evidence. The latter replicates and expands upon the former. It includes this history:
"Many thanks indeed for referring this 44 year old interstate Truck Driver who presents with two years history of recurrent lower back pain. It initially started in 2004 while pulling a ratchet strap. This required physiotherapy for a few weeks with complete recovery. This recurred on the 18th January 2006 when he was pulling a ratchet strap with sudden lower back pain on the right side radiating to the right thigh and knees. Occasionally he would experience some paraesthesia and numbness particularly on the right."
Ninthly, Mr Simmons saw a doctor retained by his company's private insurer on 23 January 2007, whose report contains, relevantly:
"As he was tying down the vehicles with a strap and ratchet system, he experienced a spear like pain."
Again, there was no mention of any fall.
Her Honour stated that:
"Mr Simmons did not tell any of his doctors the full story in the early days. It would have been far better if he had; and this litigation might have been far less costly all round. But that is not so strange; nor so unusual. As Dr Abraszko said:
'Yes. But sometimes the people who come to see the neurosurgeon, they are actually very anxious and they forgot. They forgot the names, they forgot the dates, they forgot the, their X-rays. They don't bring their X-ray. They forgot their history. So we have to, you know, assume that might be the case as well.'
I shall refrain from speculating about why Mr Simmons did not tell the whole story at the start. I find that in evidence he did and he told the truth."
Contrary to what was repeatedly put by Redbro orally (including in the passage reproduced at [48] above) it remained open to the primary judge to make findings in accord with the testimonial evidence of Messrs Simmons and Leighton after having engaged with or grappled with the conflicting documentary evidence. Moreover, her Honour's reasons amply disclose that she "grappled" or "wrestled" with all of the evidence. Her Honour had regard to the absence of Ceva's incident book, the fact that Mr Simmons' mother had filled out some of the documents on his behalf, the evidence of Mr Leighton, the fact that it was not put to him that it was concocted, the unlikelihood of Mr Simmons being found as he was without having fallen, the fact that Mr Simmons' "frustration and exasperation" when giving evidence was in part a consequence of his previously having been cross-examined twice. This was no mere recitation of evidence, but an evaluation of its strengths, and weaknesses and the inherent probabilities. Further, it is plain that although she stated that she would not "speculate" as to why Mr Simmons had not earlier mentioned a fall, her Honour did have regard to potential explanations for that (as may be seen from the evidence of Dr Abraszko reproduced above).
As for Redbro's second complaint, it is true that Mr Leighton did not use the word "suddenly" in terms to describe the commotion which caused him to turn and see Mr Simmons stuck in the bottom of his trailer. There is no error, let alone appellable error, in her Honour having done so. It is plain that the manner in which Mr Leighton gave his evidence, in respects which are not obvious (although they may readily be inferred) from the transcript, may have sustained her Honour's description of his evidence, which did not purport to be a quotation. In order to demonstrate error in this respect, it was necessary for Redbro to show that it was not open to the primary judge to characterise Mr Leighton's evidence as she did; that is not done merely by pointing to the fact that he did not use the word "suddenly". Even were all that not so, nothing material turns upon it.
As for the third, I acknowledge the force in what her Honour herself expressly noted, namely, that it was "tempting" to accept that Mr Simmons was correct in his descriptions given in 2006 and 2007, and incorrect in 2008 and thereafter (in which case, to be clear, it need not follow that he was knowingly telling untruths). But her Honour correctly appreciated that this was the main factual issue at trial, and gave careful attention to the tension between the more recent testimonial evidence and the earlier histories given by Mr Simmons. Her Honour was acutely conscious of the more contemporaneous documentary evidence which contradicted Mr Simmons' testimony in court.
Fox v Percy (and earlier decisions) identifies two classes of case when a trial judge's assessment of testimonial evidence is reviewed. The first is when "incontrovertible" facts are established by incontestable evidence. That is not this case: the medical histories none of which mentioned a fall did not incontrovertibly establish that Mr Simmons had not fallen.
The second is where the findings are "glaringly improbable" or "contrary to compelling inferences". Redbro necessarily placed reliance on that aspect of Fox v Percy. However, this Court said in Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444 at [67] of those terms:
"Those terms are convenient descriptive labels or guidelines, but in truth no definitive test is possible to specify those (rare) occasions when appellate review of a credit-based finding of fact is warranted: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15]. All that can be done is to look at all of the evidence, testimonial and documentary, while at the same time being conscious of the advantages of the primary judge, including the necessarily incomplete character of his or her reasons: Biogen Inc v Medeva plc [1996] UKHL 18; [1997] RPC 1 at 45."
This is not one of those rare cases. Allowing for the deference to be accorded to the advantages of her Honour at trial, I cannot conclude that Redbro has established that the evidence of Mr Simmons and Mr Leighton was "glaringly improbable" or "contrary to compelling inferences" such as to entitle this Court to interfere with her findings. There was no failure by her Honour to give attention to the conflicting evidence, which her Honour rightly regarded as the largest factual issue in the trial. In short, having weighed the documentary and testimonial evidence which bore on the issue, no error is shown in her Honour accepting their testimonial evidence.
Secondly, as observed at the outset, other parts of the same document are consistent only with there being a claim for sickness, not injury. The additional words inserted by Dr Grinbergs repeated what was, on Ceva's case, the same error which was reflected in the earlier pages, but Redbro confirmed during the appeal that it wished to gain additional comfort from the fact that it was a medical practitioner filling out the form and certifying it, for the purpose of a claim being made to an insurer. Once again, that tends to undercut the claim that this was a critical finding of fact.
Thirdly, Dr Grinbergs was asked in cross-examination the substance of the question twice, and it was undoubtedly open to her Honour to conclude from his unequivocal answers that his evidence was "unshaken"; it is far from clear that further cross-examination would have produced any different result.
Fourthly, it is a long bow to conclude that there was such unreasonableness or injustice so as to overturn the procedural ruling. This was a small component of a lengthy process of judicial reasoning on a mass of conflicting testimonial and documentary evidence.
In all of those circumstances, even if the ground had been made out, I would not come close to concluding that there was a substantial wrong or miscarriage so as to enliven the power to order a new trial: Uniform Civil Procedure Rules, r 51.53. How was it ever thought that ground 9 could succeed if grounds 1-8 failed? If not, why does ground 9 appear at all? Much the same might be said of ground 5. The point of the grounds of appeal is not to identify all aspects of reasons for judgment with which the losing party is dissatisfied, but to identify bases on which, if accepted, the appellant is entitled to the orders sought in the notice of appeal. There is surely something to be said for critical attention being given to possible grounds of appeal based on minor evidentiary or procedural rulings during a trial. Counsel retained in an appeal ought to be prepared to address the question: is it seriously contended that success on this ground will entitle the appellant to succeed?
At [45], their Honours confirmed that an individual may act both as a director of a company and as that company's employee without unduly affecting the company's legal capacity, so long as the company was not a sham, by reference to what Windeyer J had said in Peate v Federal Commissioner of Taxation [1964] HCA 84; 111 CLR 443 at 480. It is, as Lord Morris said for the Judicial Committee in Lee v Lee's Air Farming Ltd [1961] AC 12 at 26, a logical consequence of the decision in Salomon's case that one person may function in dual capacities.
It was not suggested that Redbro was a sham. How could it be? Redbro has been contending (on instructions from its workers' compensation insurer) for some years now that its sole director and sole shareholder was not to be believed in how the injury to his back came about. The divergence of interest between company and its sole shareholder and director is stark.
Redbro placed reliance on what was said at [61] of the joint judgment and, especially, what Kirby J said in his concurring reasons at [82]-[83]. The reasons of the joint judgment and of Kirby J are quite opposed in this respect. The joint judgment rejected the submission that the apportionment of liability between Mr Wail and Brambles should determine the apportionment between Brambles and Andar. To the contrary, Kirby J relied on the "close factual and evidentiary interrelationship of Mr Wail and Andar" in order to conclude that judicial consideration of what is "just and equitable" will "obviously take into account the jury's verdict on contributory negligence".
There are complexities underlying the observations made by Kirby J which need not, and therefore should not, be resolved, given the way that Redbro advanced its case at first instance and on appeal. For it is to be recalled that Redbro was not submitting that the apportionment should have been two thirds Ceva and one third Redbro, consistently with what had been agreed as between Mr Simmons and Ceva by way of contributory negligence (and consistently with what Kirby J had said in Andar). Instead, Redbro more boldly submitted that the "just and equitable" apportionment should be "a minimal amount and no greater than 5%".
In substance, Redbro advanced the same argument which was rejected by the High Court in Andar. That must be rejected, consistently with the joint judgment in Andar.
Redbro also submitted that Ceva was in a position of commercial and practical superiority to Redbro, which should have led to a much lower apportionment under statute.
The latter submission is readily resolved. There are many employers (for example, many building subcontractors and agricultural producers who supply supermarket chains) who are likely in a position of commercial and practical inferiority to their major customers. That economic reality is no answer to the universal, non-delegable duty of an employer to provide a safe system of work.
For the reasons which follow, I have concluded that no error has been shown in the primary judge's reasoning, such that Redbro's appeal should be dismissed.