1 MEAGHER JA: This is an appeal by an unsuccessful defendant against an order by Christie DCJ that it pay to the plaintiff (the present respondent) the sum of $276,000 and costs. This verdict arose out of his Honour's finding that the appellant (the respondent's employer) was guilty of negligence, but that the respondent was contributorily negligent (as to 40%).
2 The accident which gave rise to the action arose during the construction of the M2 Motorway on 1 March 1996. The respondent plaintiff was the operator of a machine called an "excavator". He was a skilled and experienced worker in that field. On the day in question, he was engaged in moving rubble from a stockpile and dumping it at another point. He had done that work many times before, and always without incident. But on this day the machine toppled over. His Honour found that the appellant was negligent.
3 His Honour found that the appellant had failed to provide more suitable machinery for the respondent to use for the dumping of material: a bobcat should have been used instead of an excavator; he also found that the employer had failed to provide a suitable work area. The plaintiff had sought to make a case that the machine toppled because of the uneven ground surface beneath it, but this contention was rejected by the trial judge.
4 It is also clear on the evidence that the immediate reason why the machine toppled over was that the plaintiff was driving it between the two points (the stockpile and the dumping point) with the arm fully extended, the bucket either full or over-full, and the arm slewing. That the machine should not have been operated in this way was acknowledged both by the appellant and the respondent.
5 It was primarily alleged by the appellant that the acts of negligence to which I have referred could not have been causative of the accident, that the accident was caused by the wrongful manner in which the respondent drove the machine. There is much to be said for this point of view, but it overlooks another finding of his Honour, who said:
"On the view of it an experienced operator who chose to slew the machine whilst he was working it and with a full bucket fully extended would be primarily responsible for this incident, but nevertheless, as I said earlier, he is entitled to some direction and some advice and some supervision from Mr Chrichton, the supervisor who was there, and on all the evidence he received none."
6 (I might add that the "supervisor" to whom his Honour alludes, one Mr Chrichton, was not called to give evidence.)
7 Thus it is established that the appellant was negligent in not directing the respondent to desist from driving the machine negligently, and there is no problem of causality to worry about. No attack on a finding that the appellant was negligent, therefore, can be entertained.
8 Thus, his Honour came to the conclusion that the respondent's action in knowingly driving the machine in a dangerous manner was directly causative of the accident, and the appellant's behaviour in failing to supervise the respondent's driving was also directly causative of the accident. In these circumstances, it is hardly surprising that his Honour concluded that ultimately liability should be apportioned as to 40% to the former and as to 60% to the latter. Indeed, if it were relevant (and it is not) those are the proportions which I would have found if it were my business to do so. But what is surprising is that the apportionment was attacked by both sides, the appellant submitting that the respondent's portion should be higher, the respondent submitting that it should be lower. Neither submission should be upheld. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 the High Court of Australia delivered a judgment which made it quite clear that a finding of the proportions of contributory negligence (either by a trial judge or by a jury) attracts a special sacrosanctity; and in Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 the High Court was constrained to remind us that Podrebersek's case meant what it said.
9 The next issue raised in the appeal concerned the calculation of the reduction which should have been made for worker's compensation paid to the respondent. The amount involved was $169,328.81. The appellant submits that the whole of this amount should have been deducted from the plaintiff's verdict. His Honour, however, held that the amount of the deduction should be limited to 40% of that sum, in view of his findings on contributory negligence. There is very little authority on this issue. The history of continued legislative change in both the Workers Compensation Act 1987 and the Law Reform (Miscellaneous Provisions) Act 1965 dealing with the problem has been set out in an appendix to this judgment. At the date of trial, the matter was governed by s151B(1)(b) of the Workers Compensation Act 1987, which provides:
"Effect of recovery of damages from employer on payment of compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act:
(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation."