STATE OF SOUTH AUSTRALIA v MOUNTFORD No. SCCIV-00-516 [2001] SASC 85

3 WILLIAMS J This is an appeal by the defendant against the decision of a District Court Judge in a civil action with respect to a question which was tried as a preliminary issue. By his decision dated 22 May 2000, the Judge dismissed the defendant's contention (arising on the pleadings) that the action should be dismissed or stayed.

4 The issue concerns the construction of s 25(1)(b) of the Wrongs Act 1936 (SA) and its application in light of s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA) ("WR & C" Act). The question is whether an injured worker is entitled to maintain an action against a third party tortfeasor to make up a perceived shortfall in common law damages recovered from his employer in an earlier action with respect to the same incident.

5 It may be assumed for the purposes of argument that the defendant and the plaintiff's employer are each tortfeasors who were respectively fully liable to pay common law damages to the plaintiff arising out of the incident undermentioned. It is alleged that by reason of a negligent direction to which each was party or by reason of separate but contemporaneous negligent acts, the present defendant and the plaintiff's employer were tortiously responsible (jointly or severally) for an industrial accident involving an explosion on 5 April 1990 in which the respondent suffered personal injury.

6 The respondent, Mountford, in his first action, recovered common law damages against his employer within the limitations of the Workers Rehabilitation and Compensation Act s 54; that section (as now relevant) confines the employer's liability at common law to "non economic loss" (as defined) and it also imposes a monetary ceiling upon that liability. The question is whether a second action raising a claim in tort with respect to the harm caused by the explosion may now be brought by Mountford against the appellant as a tortfeasor, to the extent of items of damage which were not raised in the earlier action against the employer or to the extent that it may be shown that the amount of the earlier award of damages is inadequate.

7 A distinguishing feature of this case is that the acts of the co-tortfeasors (to the extent that they are separate) have concurred in producing damage which cannot be separately attributed to either tortfeasor. Dr Glanville Williams (in Joint Torts and Contributory Negligence 1951 at p 17) quotes the following example of this type of liability:

"...if two defendants each pollute a stream with oil, it is possible to say that each has interfered to a separate extent with the plaintiff's rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff's barn."

8 The appellant's defence recites the fact of the judgment and its amount in Mr Mountford's first action (awarding damages against the plaintiff's employer) but it does not assert that this judgment has been satisfied. The Court was informed by counsel that the employer has paid in full the amount of the judgment. In my opinion, that fact is critical to the resolution of the matter and should be pleaded in the defence before entry of judgment upon this appeal.

9 The plaintiff, a plumber, was injured in the course of his employment by Scotsbuild Pty Ltd. That company was providing the plaintiff's services at Ernabella to Services SA (formerly known as SACON) where he was under the supervision of Mr Alexander (an inspector employed by Services SA) and where he was also responsible to Mr Goodchild (a local representative of his own employer Scotsbuild). In order to obtain access to an inspection point for piping in an effluent lagoon, the plaintiff endeavoured to burn off an area of scrub. The plaintiff was badly injured in an explosion when he tried to set alight some solvent which he was using as a fire accelerant under the direction of Messrs Alexander and Goodchild.

10 On 16 September 1994, the plaintiff recovered an amount in a District Court action against his employer Scotsbuild - including common law damages as limited by s 54 of the Workers Rehabilitation and Compensation Act for "non economic loss" (see definition in s 3 of the Workers Rehabilitation and Compensation Act). The claim in that action dealt with the plaintiff's physical disabilities arising from burns (including problems associated with dermatitis). There was no psychiatric evidence nor any claim referable to a psychiatric disorder.

11 Damages were assessed in the District Court at $22000 together with interest ($2670) and there was a deduction (under s 54(3) of the Workers Rehabilitation and Compensation Act) for a lump sum amount previously received under s 43 for non economic loss in respect of permanent disability. After making this adjustment, judgment in this action ("the first") was entered on 28 October 1994 in favour of the plaintiff for $20500 - together with costs of action.

12 At the relevant time, the Workers Rehabilitation and Compensation Act included the following:

(d) and other loss or detriment of a non-economic nature."

"...no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except-

(b) a liability at common law for non-economic loss or solatium.

(3) A court before which an action is brought against an employer for non-economic loss arising from a compensable disability shall make due allowance for any lump sum paid or payable under Division V or VI to the person by or on whose behalf the action is brought.

(4) Where an action is brought at common law against an employer for damages for non-economic loss arising from a compensable disability...the damages awarded in respect of that loss must not exceed 1.4 times the prescribed sum.

(b) action is taken against a person other than the employer for damages in respect of the disability

the other person has no right to recover contribution from the employer."

(Note: Section 43 abovementioned is to be found in Division V as identified in s 54(3).

"Compensable disability" referred to above is defined to mean "a disability that is compensable by virtue of s 30.")

13 Following the entry of the District Court judgment in the first action, the respondent (on legal advice) saw a psychiatrist and on 3 March 1995 the respondent received information that he was suffering from a post traumatic stress disorder.

14 On 28 February 1996 the plaintiff commenced the present (or "second") action in the District Court against the State of South Australia for common law damages based essentially upon the same set of facts which gave rise to the earlier claim. In the first action, it was alleged and established that the employer's representative Mr Goodchild was negligent in directing Mr Mountford to use PVC solvent. In the second action, it is alleged that Mr Alexander the supervisor for Services SA, gave such a direction.

15 Mr Alexander and Mr Goodchild were together responsible for determining how the scrub should be cleared. The nature of the employer's negligence lay in the choice of accelerant (plumber's cleaning fluid) of whose volatile properties the plaintiff was unaware. It seems that Goodchild instructed the plaintiff not to use dieseline and Goodchild himself poured cleaning fluid onto the scrub with the approval of Alexander. These are the facts which were found by the District Court Judge in Action 665 of 1993 in his decision on 16 September 1994. They would be capable of supporting an action at common law against Scotsbuild and Services SA in respect of a joint liability as well as concurrent liabilities for breach by each of a separate responsibility towards the plaintiff. The resolution to use cleaning fluid as a fire accelerant may be viewed as a joint decision by Alexander and Goodchild based on a common responsibility or, they may have acted individually but concurrently in pursuit of a common goal to get clear access to the inspection point. It is sufficient for present purposes that:

(i) Alexander and Goodchild respectively participated in creating a dangerous situation which led to the plaintiff receiving burns

(ii) Mountford recovered an amount of damages against his employer based on Goodchild's negligence and is now seeking further damages by reason of Alexander's negligence.

16 The first point at issue concerns the meaning of the word "damage" in the Wrongs Act s 25(1)(b) which regulates successive actions against tortfeasors. (The use of the word "damage" throughout the section must be carefully distinguished from the use of the word "damages".)

17 The Wrongs Act s 25(1) includes the following relevant extracts:

"(1) Where damage is suffered by any person as a result of a tort (whether a crime or not)-

(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage:

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child of that person against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would at any time have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought:

18 In the events which have happened, the appellant contends that by virtue of the operation of the Wrongs Act s 25(1)(b), the amount recoverable by way of compensatory damages at common law cannot exceed in total the amount of the judgment obtained on 16 September 1994. The appellant contends that as that judgment in the first action has been satisfied, there remains no amount in respect of which the plaintiff is entitled to bring an action against Services SA.

19 The Trial Judge rejected this ground of defence. He said:(pars22-24)

"Subject to his proving it, the "damage" or loss suffered by the plaintiff in the accident for which he could be compensated by damages at large, encompasses physical and psychological injuries together with their consequences, both economic and non-economic. Potential heads of economic loss include out of pocket expenses, lost wages, the cost of care, reduced earning capacity, lost benefits (superannuation and otherwise) and other lost opportunities. The only damage for which the first action could have been brought, and was brought, was for non-economic loss as defined in s4 WRCA. The damages payable in that action were not common law damages at large but quantum limited to 1.4 times a prescribed amount. That was further circumscribed because before judgment was entered, there had to be a deduction of any lump sum already paid under s43 WRCA by WorkCover on behalf of the employer.

In my opinion, with one possible exception, s25(1)(b) does not apply. Subject to liability being established, the "damage" first mentioned in s25(1) is the whole of the loss or damage suffered by the injured person. The restriction imposed by subsection (1)(b) concerns any action brought "in respect of that damage". It cannot be said that in his first action the plaintiff brought an action for the "damage" he suffered in the accident. Perforce, his claim was for damages limited to that portion of damage or loss for which he was permitted to bring an action against an employer, and even then, not for damages at common law at large, but for damages as limited and circumscribed by the WRCA.

The possible exception is as follows. The Statement of Claim includes a claim for damages for "pain and suffering and loss of the amenities and enjoyment of life consequent upon the development of a post traumatic disorder and alcohol dependence." In the course of argument, the question arose as to whether because of s25(1)(b); there may be a restriction on the plaintiff's right to claim for that head. However, that is not for me to determine on this application. If it arises, it would be a matter for a trial judge to decide after consideration of the relevant evidence.

However, leaving aside possible argument at trial about non-economic loss, when regard is had to the spread of loss or damage that might be recoverable, this action is not one in respect of the same damage that was the subject of Action 665/1993. If the plaintiff succeeds in this action against the defendant, his award will reflect the following principle outlined in Andrews v Ziersch [1994] SASC 4013; (1994) 61 SASR 521 by Perry J, with whom Mullighan J agreed. He said at p 539:

It follows that if the employer is sued for common law damages, and if liability at common law is established, he or she will be liable to pay damages not exceeding 1.4 times "the prescribed sum" under s 54(4). If a person other than the employer is sued as a co-defendant, or if such a person is sued alone, and liability against that person is established, he or she will be liable for the whole of the damages at common law, subject, no doubt, to reduction by any amount recovered by the worker from the employer by way of common law damages, having regard to the principle against double recovery."

The defendant has not made good its submission that the action should be stayed or struck out as an abuse of process."

20 In expressing himself in this way and particularly in his reference to "same damage that was the subject of action 665/1993," the Trial Judge appears to have redefined the meaning of "damage" (and consequentially "that damage") as used in s 25(1) of the Wrongs Act without the benefit of the two cases next mentioned. "Damage" in this context refers to the injury or harm wrongfully inflicted and not to damages and disabilities - see Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 at 326-327. In Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 527 five members of the High Court of Australia in a joint judgment explained the meaning of the New South Wales counterpart of s 25(1) as follows:

"Dillingham makes it clear that "damage" in s 5(1)(c) is not to be equated to the "damages" awarded by a court. In negligence, "damage" is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between "damage" and "damages" is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff, so that a single sum is awarded in respect of all the foreseeable consequences of the defendant's tortious act or omission. But concurrent tortfeasors whose negligent acts or omissions occur successively rather than simultaneously may both be liable for the same damage, being a foreseeable consequent of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other."

21 The purpose and operation of s 25(1) - or its abovementioned counterpart in s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - has been further explained in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1984) 155 CLR 448. That section reproduces s 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). It appears that the damage identified in the section is injury in respect of which compensatory damages may be recovered but does not extend to exemplary damages. That lastmentioned point is not in issue upon this appeal, but the case is helpful in explaining the rationale of the legislation. Brennan J said at 469-470:

"...Section 5(1) applies "[w]here damage is suffered by any person" and par (b) applies if "more than one action is brought in respect of that damage". Section 5(1)(b) limits "the sums recoverable under the judgments given in those actions by way of damages" to "the amount of the damages awarded by the judgment first given". Section 5(1)(b) admits of two constructions. The first would take "the sums recoverable by way of damages" as referring to the total award recoverable under the judgment, whether or not the total included exemplary damages. The second would take the phrase to refer to the sums recoverable in respect of "that damage" that is, in respect of the "damage suffered by any person". In my opinion, the second construction is to be preferred. The purpose of s 5(1)(b) is to prevent excessive recovery by a plaintiff consequential on the creation of multiple causes of action against tortfeasors. The limit imposed by s 5(1)(b) is reasonable if s 5(1)(b) is referring to compensatory damages alone, for it ensures that the "damage suffered by any person" for which all joint tortfeasors are responsible does not result in judgments which entitle a plaintiff to receive more than the damages assessed against the tortfeasor who first becomes a judgment debtor. So understood, s 5(1)(b) fixes the maximum sum in respect of which an order of contribution might be made under s 5(1)(c). But if s5(1)(b) were taken to refer to exemplary as well as compensatory damages, the limitation imposed on recovery would operate capriciously so that the liability of the tortfeasor against whom an award of exemplary damages is first made would provide the ceiling of exemplary damages that might be awarded against other joint tortfeasors, although the conduct of the other joint tortfeasors may have been more reprehensible than the conduct of the firstmentioned tortfeasor. Moreover, the reference in s5(1)(c) to the liability of a tortfeasor in respect of "that damage" suggests that the damages referred to in the earlier provisions of s5(1) and which are amenable to the making of contribution orders under s5(1)(c) are damages in respect of "damage suffered by any person" - ie compensatory damages."

22 It thus appears that the structure of the Wrongs Act is to allow successive actions against different tortfeasors with respect to injury or harm suffered by the plaintiff. (I have referred to these people collectively as "co-tortfeasors"). However, to avoid excessive recovery, the total amount recoverable for compensatory damages is limited to the amount awarded by the judgment first given. This rule (sometimes called "the principle against double recovery") is essential to the operation of the statutory scheme contained in s 25.

23 The common law rule was that judgment against one joint tortfeasor was a bar to an action against another joint tortfeasor for the same cause; however in the case of independent tortfeasors (whose acts concur to produce a single damage to the plaintiff), a judgment against one did not extinguish the cause of action against any of the other tortfeasors until the judgment had been satisfied. In the case of joint tortfeasors the plaintiff had only one cause of action which merged in any judgment even although the judgment might be unsatisfied. This is to be distinguished from the situation where defendants are independently liable upon separate causes of action for the same damage; in such a case satisfaction of the damage (even by a stranger) will provide a bar to any further action which otherwise may be pursued notwithstanding the fact of other judgments. Also to be noted is that at common law, there was no contribution between tortfeasors. (See Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 at 180 -181).

24 The Wrongs Act s 25(1) has now altered this position. Under s 25(1)(a) judgment against one joint tortfeasor is no longer a bar to a further action. However, under s 25(1)(b), the total sum recoverable against co-tortfeasors with respect to the harm which they caused is limited to the amount recoverable under the judgment first given. As damage is an essential element of any tortious claim, payment of the amount fixed by the first judgment removes any basis for the plaintiff to claim for loss (see Clark v Urquhart (1930) AC 28 at 66); the plaintiff is thereby left without the element of loss which is necessary to support another action. This topic is canvassed in the speech of Lord Hope in Jameson v CEGB (2000) 1 AC 455 at 473-474. This statement, of course is the general position and does not bring to account the effect of the Workers Rehabilitation and Compensation Act s 54 which in terms of the judgment now under appeal, raises the second point for examination. I have not found it necessary to discuss the effect of the Wrongs Act s 25(1)(c) although the references to "damage" in the earlier parts of s 25(1) flow through into s 25)(1)(c).

25 I digress for the purpose of disposing of a point which has been put to rest by a recent decision of this Court in Duke Group v Pilmer No 2 (see below). In the second action, the plaintiff (in the alternative to a claim in negligence) alleged breach of contract by Services SA with the plaintiff. The presence of the claim in contract can be ignored for the purposes of the present argument. The damages for which Services SA is alleged to be liable in this instance in tort or in contract are the same. For the purposes of the argument which arises as to the application of the Wrongs Act, it is sufficient that the defendant Services SA is in fact a tortfeasor liable in respect of damage even though the claim does not proceed upon that basis (cf Duke GroupLtd (In Liq) v Pilmer & Ors (No 2) (2000) SASC 418 where this point with respect to the operation of the Wrongs Act s 25(1)(c) was under discussion.)

26 I now turn to the second issue in this case, namely, whether (and if so in what respect) the general operation of s 25 of the Wrongs Act is modified by s 54 of the Workers Rehabilitation and Compensation Act. It is the contention of the plaintiff that s 25(1)(b) does not apply to the present situation by the operation of s 54 of the Workers Rehabilitation and Compensation Act which plainly by the terms of s 54(4b) at least, negates the operation of s 25(1)(c) in present circumstances.

27 In Andrews v Ziersch [1994] SASC 4013; (1994) 61 SASR 521 at 538-540 Perry J comprehensively reviewed the operation of the Workers Rehabilitation and Compensation Act s 54. In the present case, the Trial Judge quoted an extract from that judgment (as above appears) but the quote as now relevant is incomplete. The Trial Judge was apparently relying on Andrews v Ziersch to support his conclusion that Services SA was "liable for the whole of the damages at common law". However, as His Honour did not recognise that the first and second actions were brought with respect to the same damage, he did not find it necessary to apply the principle against double recovery.

28 In addressing the operation of s 54, Perry J in Andrews v Ziersch makes it clear (see at 538) that s 54 is itself "subject to the various provisions in the Wrongs Act which serve to curtail the extent of an award at common law". His Honour also observes (see at 539) that a worker's right to sue a third party at common law as well as an employer is subject to "the principle against double recovery."

29 As now relevant s 54 in my opinion has effect in three ways:

(a) it confines the employer's common law liability to "non economic loss" and solatium.

(b) it imposes a monetary ceiling upon that liability at common law.

(c) it prevents circumvention of these restrictions by prohibiting a claim for contribution against the employer by a third party who is sued for damages at common law; in the last mentioned respect the Workers Rehabilitation and Compensation Act expressly over-rides any right to claim contribution_._ Probably the only right to claim contribution is that contained in the Wrongs Act (see Andrews v Ziersch at 540).

(The section has other consequences as identified by Perry J at 540 but I need not now be concerned with those anomalies).

30 Andrews v Ziersch was concerned principally with the construction of s 54(4b)(b) and with the right of a third party to claim contribution from the plaintiff's employer in circumstances where the plaintiff himself was precluded by s 54(1) from making a claim against the employer. Perry J noted how the rights of the worker to claim damages against an employer at common law or for breach of statutory duty resulting in compensable injury have been "severely curtailed" by the WR & C Act. I am grateful for the analysis undertaken by His Honour who explains how s 54(1) and (2) operate to confine any liability of an employer with respect to a compensable disability to the liability imposed by the Act and a liability at common law for non-economic loss or solatium, except in cases where the liability arises out of the use of a motor vehicle; in the last mentioned event, Perry J points out that the employer remains liable at common law for damages at large - subject to the restrictions imposed by the operation of the Wrongs Act as regards the extent of common law damages. The exposition by Perry J deserves to be read in full but the salient points which he makes (see at 538-539) as to the scope and operation of s 54 as now relevant are as follows:-

"1. Section 54(1) and (2) operate to confine any liability of an employer with respect to a compensable disability to the liability imposed by the Act, and a liability at common law for non-economic loss or solatium, except in cases where the liability arises out of the use of a motor vehicle, in which event the employer remains liable at common law for damages at large (although subject to the various provisions in the Wrongs Act 1936 which serve to curtail the extent of an award of damages at common law).

5. Section 54(4b) was inserted by way of amendment at the same time as subs (4a), both subsections having been inserted by Act No 39 of 1988. Both sections are designed, at least in part, to achieve the same objective, namely, to ensure that the operation of the ceiling imposed by subs (4) is not circumvented in the case of subs (4b) by a claim for contribution against the employer by a third party who is sued for damages at common law by the worker. Although subs (4b) uses the expression "Where...an action is taken", it is hard to imagine circumstances in which such action could be brought other than by the worker.

6. Given what I perceive to be the purport or object of subs (4b), I see no reason why it should not be regarded as of application where the third party is sued alone, or together with the employer. The evil to be avoided is the same, namely, to avoid the ceiling imposed by subs (4) being circumvented by indirect actions. That evil would not effectively be avoided unless the section is taken to operate in the manner in which I perceive that it does, namely, so as to preclude a claim for contribution either by a co-defendant (not being the employer) where the employer is also a defendant, or by a third party claim by a defendant who is not the employer, against an employer who is not joined as a defendant."

"It follows that if the employer is sued for common law damages, and if liability at common law is established, he or she will be liable to pay damages not exceeding 1.4 times "the prescribed sum" under s 54(4). If a person other than the employer is sued as a co-defendant, or if such a person is sued alone, and liability against that person is established, he or she will be liable for the whole of the damages at common law, subject, no doubt, to reduction by any amount recovered by the worker from the employer by way of common law damages, having regard to the principle against double recovery."

32 This lastmentioned quotation when read in context does not support the conclusion in the present case for which it was apparently cited by the Trial Judge.

33 For the plaintiff's argument to succeed it will be necessary to regard the provisions of the Workers Rehabilitation and Compensation Act as having effected some implied repeal of the Wrongs Act s 25(1)(b). True it is that the Workers Rehabilitation and Compensation Act s 54(4b) effectively over-rides and extinguishes the right of a third party in the relevant circumstances to recover contribution from the employer (and in this respect limits the operation of the Wrongs Act s 25(1)(c) - see Andrews v Ziersch at 540). Nevertheless in my opinion s 25(1)(a) and (b) remains unaffected. Although a third party's right against an employer to contribution is extinguished, the third party as a co-tortfeasor remains entitled to the protection of the Wrongs Act s 25(1)(b) which itself limits the amount which may be recovered. I do not consider that in enacting s 54 of the Workers Rehabilitation and Compensation Act, Parliament intended the former common law position to apply to circumstances such as the present. Likewise, it would seem unlikely that Parliament would have intended the Wrongs Act s 25(1)(a) to apply without the support of s 25(1)(b). As is pointed out in Genders v Government Insurance Office of NSW [1959] HCA 30; (1959) 102 CLR 363 at 378, s 25(1)(a) and (b) are together concerned with the removal of the rule under which judgment against one of several joint wrongdoers worked the discharge of the other joint wrongdoers. Section 25(1)(c) had a different purpose, namely to confer a right upon a wrongdoer to claim contribution from other wrongdoers liable for the same damage.

34 The plaintiff seeks to treat the right to damages mentioned in the Workers Rehabilitation and Compensation Act s 54 as being a statutory entitlement. In my opinion, s 54(1)(b) merely preserves common law rights as therein mentioned - but subject to some restriction. Both the employer and the third party (Services SA) are tortfeasors who have been sued in the first and second action respectively with respect to the same damage. It is not to the point to suggest that the "heads" of compensatory damage in the two actions can be distinguished. Nor is it to the point to argue (as counsel for the respondent now does) that different causes of action can be identified against the respective tortfeasors (cf Brunsden v Humphrey (1884) 14 QBD 141). The ability of the plaintiff to maintain the successive actions is qualified by a different consideration or factor - namely whether or not it is the same harm which is the subject matter of each action. It does not matter that there are different causes of action for the same loss (see Jameson v CEGB at 472). Both claims are common in that they are with respect to the same damnum (sometimes called "harm" or "injury") although various damages may have been suffered under different heads. The damages so identified involve a different legal concept from the harm or injury to which I have referred and which is called "damage" (as opposed to "damages") in s 25(1). In circumstances such as the present, it is sometimes said that there is only one "damnum".

35 By proceeding first against the employer, the plaintiff has accepted the ceiling on common law damages in terms of the Workers Rehabilitation and Compensation Act. However, the employer is a tortfeasor to whom the Wrongs Act s 25(1)(b) applies. Therefore in bringing any further claim, the plaintiff is faced with a ceiling designed to avoid double recovery. However that ceiling has already been lowered by the Workers Rehabilitation and Compensation Act s 54.

36 The Wrongs Act s 25(1)(b) contains an arbitrary rule in order to make the scheme of the legislation effective with respect to joint tortfeasors. Unfortunately , being an arbitrary rule it has the capacity to work hardship if the effect of the rule is not properly appreciated. By obtaining satisfaction upon the judgment against Scotsbuild, the plaintiff has established the limit of his claim for the harm which he has suffered and has debarred himself from claiming that there is a shortfall for which the third party (Services SA) ought to compensate him.

37 In my opinion the District Court Judge wrongly interpreted s 25(1) of the Wrongs Act without having regard to the decision in Dillingham Constructions v Steel Mains.

38 I propose that the appeal be allowed and that the orders made by the District Court Judge should be set aside and that in lieu there should be an order that the action be dismissed or stayed. The parties should be heard as to which of these courses should be followed.