23 October 2008
M & L TARABAY v LEITE
Judgment
1 ALLSOP P: I agree with the orders proposed by Basten JA and with his Honour's reasons.
2 BASTEN JA: On 21 October 2004, Mr Antonio Leite ("the plaintiff"), was working on a building site at Liverpool Road, Ashfield, which was under the control of building contractors, M & L Tarabay ("the appellants"). The plaintiff's employer, SS Formworking Pty Ltd ("the employer") had contracted with the appellants to complete formwork for them.
3 The appellants were the head contractors in respect of the construction of a block of 42 home units. At the time of the plaintiff's accident, work was being undertaken on a multilevel car park below ground level. The plaintiff was collecting formwork and other material when he fell through an aperture in the floor at level B3, falling some two and a half metres to the floor below. He suffered severe injuries, including fractures of both shoulders and his left thigh just above the knee.
4 The trial judge upheld his claim against the appellants (the building contractors) and declined to reduce the award of damages on account of the culpability of his employer, pursuant to s 151Z(2) of the Workers Compensation Act 1987 (NSW). However, his Honour reduced the damages by 30% on account of contributory negligence. The judgment was for an amount of $228,128.90: see Leite v Tarabay [2007] NSWDC 188 (Goldring DCJ).
5 There was no challenge to the finding of liability against the appellants. Rather, as set out in the notice of appeal, the primary complaint concerned the failure to reduce the damages according to the statutory formula, the plaintiff having been entitled to take proceedings against his employer (although he had not done so) and there being an apportionment by the trial judge of responsibility for the accident as between the appellants and the employer. The adjustment was required by the Workers Compensation Act in accordance with the formula identified in s 151Z:
"(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages".
6 The plaintiff conceded that his Honour was in error in failing to make the appropriate reduction.
7 The appellants also raised two specific complaints in relation to the inclusion in the award of damages of two amounts on account of domestic assistance. One complaint concerned the inclusion of an amount for past domestic assistance provided under contract and paid for by the workers' compensation insurer. It was common ground that such an amount was liable to be recouped by the insurer out of the damages and hence should have been included in the judgment. However, the amount was, through no fault on the part of the trial judge, included twice, having formed part of an agreed figure in relation to what were somewhat imprecisely described as past "medical expenses". Accordingly, there was no dispute that the award should be reduced by the amount in question, namely $11,643.60.
8 The second complaint in relation to domestic assistance was that his Honour had allowed an amount for gratuitous assistance calculated at the rate of 14 hours per week from the date of his release from hospital until 31 January 2006, being a period in excess of 14 months. The appellants alleged that such assistance had been required for less than six months, although at an intensity in excess of six hours per week, thus precluding recovery.
9 It was common ground that the assessment of damages was to be undertaken in accordance with the Civil Liability Act 2002 (NSW). Accordingly, any award of damages for gratuitous attendant care services was constrained by the requirements of s 15(3) of that Act, which provides:
"(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months."
10 Under that provision, no damages were available if the services were provided for less than six hours per week and for less than six months. This Court held in Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Reports ¶81-951 that the preclusion only arose where both negative conditions were met. Thus, once it was conceded that gratuitous care was provided for more than six months, damages could be recovered for care provided at an intensity below six hours per week. Similarly, if the period were less than six months, recovery was permitted if the degree of intensity was not less than six hours per week.
11 Following the decision in Harrison, the appellants abandoned their challenge to this item of damages. At the hearing, senior counsel for the appellants sought to reinstate the ground, contenting himself with a formal submission that Harrison was wrongly decided and noting that there was a special leave application pending in the High Court with respect to that decision.
12 The purpose of the formal submission was somewhat obscure, as it would have been necessary for the appellants to challenge the finding of fact that gratuitous assistance had been required at a level significantly higher than six hours per week, namely 14 hours per week, for a period well in excess of six months. In effect, the submission that Harrison was wrong was raised by way of response to a claim by the plaintiff, on a cross-appeal, that there should have been an amount allowed for future gratuitous attendant care services, albeit at the low level of intensity of two hours per week.
13 In these circumstances, except in relation to costs, nothing further need be said about the appeal.
Cross-appeal
14 Despite his conclusion that the damages were not to be reduced pursuant to s 151Z(2) of the Workers Compensation Act, his Honour made an apportionment of liability, on a hypothetical basis, between the appellants as head contractors and the plaintiff's employer. That apportionment ascribed 67% of the responsibility to the employer. Once it was conceded that an adjustment should have been made on account of s 151Z(2), the potential liability of the employer became a matter of concern to the plaintiff. He submitted that the apportionment by the trial judge was outside any reasonable discretionary range and that a more appropriate apportionment would have assessed the employer's responsibility at 20%-25%.
15 Secondly, the plaintiff, in the cross-appeal, challenged the finding that the damages should be reduced for contributory negligence by 30%, submitting that no reduction would have been appropriate.
16 Thirdly, he complained that the trial judge, despite apparently finding a need for continued domestic assistance, declined to include any amount on that account in the award of damages. The plaintiff was willing to accept that the level of intensity of his post-judgment needs had been assessed at two hours domestic assistance per week, an amount which, in accordance with Harrison, he was now entitled to recover.
17 With regard to the last complaint, the qualification in respect of reliance upon Harrison was unnecessary. The preclusion in s 15(3) of the Civil Liability Act is limited to claims for "gratuitous attendant care services". Such services are defined to mean those that have been or are to be provided by another person and for which the claimant has not paid or is not liable to pay: s 15(1). On the evidence, the only provider of gratuitous care to the plaintiff was his former wife, from whom he is now separated. If there is to be an allowance for future attendant care services, on the evidence, they will need to be provided on a commercial basis. Accordingly, s 15(3) has no relevant operation.
18 It is the three issues raised on the cross-appeal which form the issues in dispute before this Court.
Apportionment of liability
(a) failure to reduce appellants' liability: conceded error
19 To explain how the trial judge came to consider the question of apportionment, it is necessary to note the basis upon which he held that s 151Z(2) was not applicable in the circumstances of the case. The first basis was that the liability of the appellants, as head contractors with overall management of the site, and the liability of as the plaintiff's employer, were "concurrent" liabilities, rather than a joint liability: at [39]. The meaning of the term "concurrent tortfeasors" was discussed in Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 at [18]-[19] (Gleeson CJ and Callinan J), in the context of a claim for contribution under s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW): see also Kirby J at [85], Gummow and Hayne JJ agreeing with both passages at [52]. However, the distinction is beside the point in the present case because the statute expressly refers to recovery from the employer "as joint tortfeasor or otherwise": see s 151Z(2)(c), (d) and (e). Whether the words "or otherwise" extend to liabilities in equity or contract, and not merely in tort - as to which see Georgitsis v Lend Lease Interiors Pty Ltd (1989) 17 NSWLR 106, 109-112 (Mathews J); State of New South Wales v Kennelly [2001] NSWCA 71 at [59]-[61] (Young AJA) -there is no doubt that they include any form of liability in tort: see Lapcevic v Collier [2002] NSWCA 300 at [80]-[84] (Davies AJA, Barrett AJA agreeing).
20 The second ground upon which the trial judge declined to apply s 151Z was that a claim for damages against the employer would have failed because the plaintiff could not satisfy the preconditions specified in Part 5, Div 3, to recovery of damages: at [45]. Putting authority to one side, that approach was also erroneous. The statutory scheme envisages that a claim against a tortfeasor other than the employer, not being subject to the constraints imposed by Part 5, Div 3 of the Workers Compensation Act, will result in a higher award of damages than would a claim against the employer, which would be assessed in accordance with the Workers Compensation Act. When liability is apportioned, there is then scope for injustice. If the non-employer tortfeasor recovers 25% of its higher liability, the employer will lose part of the benefit of the statutory restrictions on its liability. On the other hand, if the non-employer tortfeasor is only able to recover that percentage of the employer's liability, it will be disadvantaged to the extent of the difference between the calculation of the contribution based on its higher liability and the calculation of the contribution based on the employer's lower liability. That injustice is remedied by reducing the overall liability of the non-employer tortfeasor to the plaintiff.
21 The policy underlying the scheme will be equally applicable if the employer, despite its culpability, has no liability to pay damages. In that case, the contribution recoverable in accordance with s 151Z(2)(d) will be zero and, to avoid injustice to the non-employer tortfeasor, its liability to the plaintiff will be reduced by the whole of the contribution it would have recovered from the employer, had the employer's liability not been capped (in the hypothetical case, at zero).
22 The defendant in the action brought by the plaintiff against the non-employer tortfeasor will, of course, have an interest in increasing the proportion of responsibility attributable to the employer. But if the employer be uninsured, without financial resources or cannot be found, the defendant will also have an interest in reducing the employer's liability to zero. Thus, if the defendant's liability were (say) $300,000, to be reduced by the difference between two-thirds of the damages assessed otherwise than under the Workers Compensation Act ($200,000) and the same proportion of the damages assessed under that Act, the defendant's liability will be reduced to $100,000 if the employer's liability be zero.
23 This calculation was not undertaken by the trial judge and it is common ground that, in that respect, he erred. Nevertheless, having stated that the exercise was not available in the circumstances, he nevertheless expressed the view that 67% of the responsibility should be apportioned to the employer: at [46].
(b) need to identify error
24 The first step in considering the question of apportionment is to determine whether or not the plaintiff, as cross-appellant, needed to identify error in the assessment recorded by the trial judge. In terms of appellate jurisdiction, his Honour's conclusion in that respect formed no part of his reasons for the judgment given. Rather, like an assessment of damages in a case where liability has been held not to arise, such findings are made, in accordance with principles stated in this Court and in the High Court, in order to minimise the inconvenience and delay caused by appellate reversal of the decision on liability: see Kuru v New South Wales [2008] HCA 26; 82 ALJR 1021 at [12]. They are thus treated as having a contingent effect.
25 Those principles are not universally applicable; furthermore, where the additional steps are taken against the possibility of error, in some cases it may appear that they are not given the degree of considered judgment that they might have received had they been material to the outcome, as perceived by the trial judge.
26 The purpose underlying the making of additional findings is in part to prevent double expenditure by the parties who have gone to the trouble to call all of their evidence, and address the Court on the question of damages, and to avoid the repetition of that course in circumstances where a rejection of liability is reversed.
27 However, neither the practical purpose underlying a contingent assessment, nor the making of an assessment, identifies the legal consequence of the assessment. Where, as in the present case, an appeal is by way of rehearing, an unsuccessful plaintiff may be in a position to seek a judgment from the appellate court in a determined amount if the rejection of liability is reversed. That judgment having been given for the first time in the appellate court, is the judgment of that court. In rare cases where the medical evidence is all documentary and there was no relevant challenge to the plaintiff's description of his or her injuries and their consequences, it might be open to the appellate court to make that assessment without any contingent findings on the part of the trial judge. In other cases, where the oral testimony of the plaintiff has been challenged, the appellate court may be unable to make findings unless the primary judge has made the relevant assessment against the possibility of error. Where findings have been made, the appellate court will often adopt those findings, unless challenged on appeal.
28 The proper characterisation of the legal consequences of a contingent assessment may be tested by asking whether the plaintiff who obtains a reversal of the rejection of liability on appeal may invite the appellate court to remit the matter for hearing on damages in circumstances where the trial judge had undertaken an assessment, which could not be demonstrated to be erroneous. This question is one of some significance, but was not debated in the present case. For reasons given below, at least in relation to apportionment, it can be shown that the assessment of the trial judge was erroneous.
29 Apportionment being an evaluative judgment which can as well be made in this Court as by the trial judge, it may be thought appropriate for this Court to reconsider the question of apportionment and reach its own conclusion. On the other hand, the Court is bound to exercise restraint, in accordance with principles recently restated by the Western Australian Court of Appeal in South Australia v Ellis [2008] WASCA 200 (Steytler P and McLure JA) at [492]:
"The relevant principles are addressed in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494. The court (Gibbs CJ, Mason, Wilson, Brennan & Deane JJ) said that the making of an apportionment involves a comparison 'both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …'. The court also said that it was 'the whole conduct of each negligent party in relation to the circumstances' of the damage that 'must be subjected to comparative examination' (see also Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65, 68 (Hayne J, with whom Gaudron, McHugh, Gummow & Kirby JJ agreed)). It is, of course, important to bear in mind that a finding on a question of apportionment is one upon a 'question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations … [involving] an individual choice or discretion, as to which there may well be differences of opinion by different minds': Owners of Steamship or Vessel 'British Fame' v Owners of Steamship or Vessel 'Macgregor' (The 'British Fame') [1943] AC 197, 201, quoted in Podrebersek (532). In Podrebersek (532), the court said that such a finding, if made by a judge, is not lightly reviewed."
30 In The 'British Fame', their Lordships were concerned with the operation of the principle in an Admiralty claim. The case involved the collision in March 1940 of two ships which had been travelling in convoy. The trial judge, Bucknill J, apportioned blame between the two vessels. That exercise was described by Lord Wright as "a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and is different in essence from a mere finding of fact in the ordinary sense": at 201. That is not to say that a similar approach should not be taken in other areas of law and it is now clear that the statement of principle is to be treated as one of general application - see AV Jennings Construction Pty Ltd v Maumill (1956-1957) 30 ALJ 100 at 101 and Podrebersek at 493-494; nevertheless, the degree of restraint may be greater in a case where the tribunal enjoys specialist expertise.
31 Questions of apportionment, like the exercise of a discretionary power, such as sentencing, give rise not merely to evaluative judgments, but to a finding which cannot readily be characterised as right or wrong. They involve identifying a point on a range, not a finding of A or not-A, in a binary system: see In re B (Children) [2008] UKHL 35; [2008] 2 WLR 1 at [2] (Lord Hoffmann). In that respect they differ from a finding of negligence, which, although the result of an evaluative judgment, must be reached without degrees of correctness: see Costa v The Public Trustee of New South Wales [2008] NSWCA 223 at [40]-[41] (Ipp JA) and [103]. Thus, a finding in respect of apportionment of culpability is to be reviewed on the basis of the constraints identified in House v The King [1936] HCA 40; 55 CLR 499 at 505.
32 As Kirby J pointed out in Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 (an appeal from an apportionment of responsibility by a jury), it is important to identify the correct approach as a "principle" of restraint and not a "rule of restraint": at [65(3)] and [66]. There can be no inflexible approach. Nevertheless, matters of emphasis are important. It is clear that in The 'British Fame' their Lordships considered that a review of a finding of apportionment would only be interfered with in rare cases, much as it was once thought that Crown appeals against sentence should be rare occurrences. Frequent demands for intervention may diminish the strength of the principle, thus giving rise to further demands. What might be considered "proper conditions" for intervention (Lord Wright at 200) or a finding that reasons for an apportionment were not "valid" (Viscount Simon LC at 199) may have changed over time. It may be that intervention has become too common, as suggested by the reference in the judgment of Hayne J in Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [158] to the "regrettably large number of decisions" involving (by inference) appellate review of apportionment and contributory negligence determinations.
33 The opinions of the various members of the House of Lords in The 'British Fame', and the brief quotations from members of the Court of Appeal set out in those opinions, place different degrees of emphasis on the need for restraint. It is not profitable to analyse those differences. Nevertheless, two comments seem opportune. The first is that Lord Wright, immediately prior to characterising the nature of a finding of apportionment, as set out above, noted that "under proper conditions", the Court of Appeal might interfere but also stated that "it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts": at 200-201. Secondly, the alternative approach, which had been adopted by the Court of Appeal in The 'British Fame', was to equate a finding as to apportionment with any other finding of fact, in accordance with 'The Testbank' [1942] P 75. It was that view which their Lordships were anxious to disavow. Viscount Simon LC, with whom Lords Atkin, Thankerton, Wright and Porter agreed, stated at 198-199:
"It seems to me, my Lords, that the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge. I do not say that there may not be such cases. I apprehend that, if a number of different reasons were given why one ship is to blame, but the Court of Appeal, on examination, found some of those reasons not to be valid, that might have the effect of altering the distribution of the burden. If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think, would be a reason for considering whether a change in the distribution should be made on appeal. But, subject to rare exceptions, I submit to the House that, when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare."
34 As noted above, the finding of apportionment in the present case was a contingent finding made without analysis of the facts for that particular purpose, and forming no part of the basis for his Honour's order. In such circumstances, the principle of restraint which would otherwise apply to such findings will have diminished force. A countervailing principle will operate by analogy. Thus, in Wade v Burns [1966] HCA 35; 115 CLR 537, a case involving an application for a writ of mandamus, Barwick CJ stated at 555:
"It was sought to be said that the grant of a mandamus was futile because the warden in delivering his reasons for the course he took said that had he a general discretion to refuse the application he would do so. It is sufficient to say that this statement by the warden as to what he would do if he had a power which, according to his own view, he did not have has no weight, in my opinion, when the court is considering whether a writ of mandamus, which otherwise it is satisfied should issue, would be futile."
35 This principle was applied by McHugh JA (Kirby P and Hope JA agreeing) in King v Goussetis (1986) 5 NSWLR 89 at 94-95; see also Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at [35]-[36] and Deputy Commissioner of Taxation v Meredith (No. 2) [2008] NSWCA 133 at [22]. In the present case, no valid reason was given for the particular conclusion reached by the trial judge. Further, there is reason to suppose that his Honour's conclusion did not reflect his intentions.
(c) error in relation to apportionment
36 Counsel for the respondent submitted that the reasoning of the trial judge with respect to the apportionment of responsibility, at [46], was to be found in earlier passages in the judgment in which his Honour discussed the evidence of the head contractor and first defendant (Mr Tarabay) and that of the principal of the employer (Mr Saliba). His Honour stated at [25]:
"I infer from the photographic evidence and the accounts given by both Mr Tarabay and the plaintiff that the site was one where extreme caution was required before anyone could move around it in safety. Mr Tarabay admits that he provided no safety instruction or induction, and in the absence of any evidence from Mr Saliba or his company, I must accept the plaintiff's evidence that he did not receive any induction, or proper instruction as to safety requirements of the site."
37 His Honour said that the circumstances of the case were "remarkably similar" to those discussed by this Court in Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174: [2007] NSWDC 188 at [26]. His Honour noted that there was more detailed evidence available as to the relationships of the parties in that case. However, no issue arose on that appeal as to the relative positions of the sub-contractor and the principal contractor: the issue of apportionment arose in relation to an employer who was a "body hire company": Maricic at [57]. In that respect, Maricic was materially different from the present case.
38 His Honour continued at [27]:
"It is not clear to me that the formwork contractor, the plaintiff's employer, had any particular responsibility for the site as such, although undoubtedly it had a non-delegable duty to provide a safe place and system of work. Even if it did have a such a duty, I could not find on the evidence before me that the defendants had discharged any duty which they might have owed to persons lawfully on the site by any contractual arrangements with the formwork contractor, because there is no evidence at all of the contractual arrangements between them."
39 The second sentence of this paragraph is obscure. Reading the whole paragraph in context, it may be inferred that his Honour was unable to find that the employer had any responsibility for the state of the site, in a physical sense. Nor was there any contractual obligation on the employer which relieved the head contractor of its responsibility. His Honour concluded that each was in "clear breach" of its duty: at [28].
40 His Honour then moved on to consider the concept of concurrent duties of care, but in so doing stated at [29]:
"The plaintiff was clearly a person whom the head contractor ought reasonably to have foreseen, and in fact knew, would be working on the site and exposed to whatever hazards the site presented. The head contractor's duty was to take reasonable care to ensure that workers on the site - including employees of other contractors - were not exposed to unreasonable hazards, even though that duty may have coincided with a similar duty on the employer."
41 After considering the operation of s 151Z, his Honour made further comments relevant to this question at [38]:
"Although it is clear that the employer had a non-delegable duty of care to the plaintiff to provide a safe place of work, and that there was a breach of the duty, the defendants, however, as head contractors with the overall management of the site, also owed a duty of care to the plaintiff, and breached that duty in a way that caused the plaintiff's injury. The defendants' duty of care extended to the responsibility to ensure that sub-contractors and their employees did not fall into openings in the concrete slabs."
42 It is difficult to infer from these findings any suggestion that the responsibility of the employer was greater than that of the head contractor. No doubt a sub-contractor may bear a greater proportion of liability in circumstances where injury results from activities for which the sub-contractor is primarily responsible: see, eg, Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23; (2008) Aust Torts Reports ¶81-937. A different conclusion may be reached in circumstances where the sub-contractor is working on a site over which it has limited control and in respect of stationary hazards created by the operation of the head contractor, which has the responsibility to ensure that the condition of the site is reasonably safe and to co-ordinate the activities of sub-contractors to ensure that those activities are carried out in a reasonably safe environment.
43 The conclusion reached by his Honour was expressed in the following terms at [46]:
"If I am wrong in this finding, I would hold that the employer was 67% responsible for the plaintiff's injuries, so that the defendants' liability would have been 33% of any sum assessed pursuant to s151Z(2)."
44 That calculation was incorrect on two bases. First, the defendants' (appellants') liability would have been for the full amount payable to the plaintiff: see Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419, [56]-[58]. Secondly, that liability would not be the total award calculated under the general law, but that award reduced by the difference between the employer's contribution (calculated as 67% of the statutory award) and 67% of an award under the general law.
45 The appellants sought to uphold the finding at [46], referring in particular to the judgment of the Full Court in Sinclair v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No. 2) (1963) 64 SR (NSW) 88 (Walsh J, Sugerman and Wallace JJ agreeing).
46 That case involved a claim for damages by a worker against the occupier of factory premises on which a contractor, which employed the plaintiff, was carrying out work. The worker fell into a pit containing hot water and suffered injury. The trial judge held that the contractor (the employer) should indemnify the occupier against the whole of the judgment obtained by the plaintiff: at 90. The Court noted the principle of restraint, but considered that this was, nevertheless, a case in which the judgment "cannot be supported" and that intervention was necessary: at 95. The judgment continued (at 96):
"In determining what apportionment ought to be made, I think it is legitimate, in the first place, to take into account, adversely to the third party, that it was the plaintiff's employer, and, as such, owed him a 'higher duty' than that owed to him by an invitor. … But there are countervailing considerations which suggest that in this case, a greater degree of responsibility should be attributed to the defendant than to the third party. … The third party, on its part did not create or bring about the dangerous state of the premises. Its failure to fulfil its duty consisted of a failure in supervision and inspection, and in the provision of safeguards against the potential dangers created by the defendant. In the circumstances, I think it would be just and equitable to require the defendant to bear two-thirds, and the third party one-third of damages and costs payable to the plaintiff."
47 How this decision assisted the appellants, is not entirely clear. First, care must be taken in seeking to identify from other cases some relevant analogy or principle to be derived from a finding of fact, especially in the form of a judgment as to relative culpabilities. Secondly, the appellants in the present case were the occupiers having control of the premises and thus more nearly in an analogous position to that of the defendant in Sinclair, which was required to bear two-thirds of the culpability. There was no suggestion in the present case that the plaintiff's employer had primary responsibility for the safety of the site or that it had any particular reason to inspect the site at which the plaintiff was working. The plaintiff said he was not aware of the hole into which he fell and there was no evidence as to whether it had previously been covered.
48 A reading of the judgment as a whole suggests that his Honour may possibly have intended that the balance of responsibility be the opposite of that which he stated at [46], and that he intended to find that the head contractor was primarily responsible for the accident. In any event, the circumstances set out above demonstrate the degrees of culpability should be reversed, so that the appellants bear 67% responsibility for the plaintiff's injuries and the employer 33%.
Contributory negligence
49 The trial judge dealt with the question of contributory negligence in a single paragraph, in the following terms at [47]:
"On his own version of events, the plaintiff was carrying a sheet of plywood at the time he fell, in such a way that it was in front of his face, so that his forward vision was at least partly obscured. The plaintiff had worked on building sites in Australia for about 40 years at the time, and was, or ought to have been, aware of the potential dangers of building sites. Even though the degree of contributory negligence necessary to make a worker in the course of his employment liable is to an extent less than that required of someone who cannot be assumed to be under instruction to work in a particular way, in this case it is clear that no reasonable workman, properly instructed, would have carried the plywood in the way that the plaintiff says he did: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. The plaintiff did raise the lighting of the area in this context, but even though in this case I would accept the evidence of the plaintiff rather than that of Mr Tarabay, namely that at the time the area was poorly lit, the lighting would not have affected the plaintiff's lack of responsibility for his own safety. He was not taking reasonable care for his own safety and I would assess his contributory negligence at 30%."
50 As with the question of apportionment, the assessment of contributory negligence is one to which the principle of restraint applies: see Podrebersek. However, in this case the plaintiff challenges the factual finding made by his Honour with respect to the way in which he was carrying the sheet of plywood. The evidence, it was submitted, did not support the finding.
51 In his evidence in chief, the plaintiff gave the following account (largely not through the interpreter) (Tcpt, 14/05/07, pp 10-11):
"Q. Immediately before you fell were you carrying anything?
A. I was carrying plywood 180 x 120.
Q. And in carrying the piece of ply board were you carrying it in front of you or to the side of you?
A. On your side, yeah my side like that yes. What he says is that he picked up and put to his side.
Q. Were you holding it with your hands on the bottom of the ply board or on the sides of the ply board?
A. Like that.
Q. So you had your left hand towards the bottom of the ply board and your right hand towards the --
A. In the middle.
Q. The middle of the ply board at the side?
A. Yes.
Q. And that is towards the right hand side of the ply board as you look at it?
A. Yes.
Q. And you had that to one side of you?
A. Yes.
Q. And was that to your left hand side or your right hand side, which side?
A. This one underneath, this one inside. Right side.
…
Q. … Before you fell as you were walking with this piece of ply board, did you see anything on the ground in front of you?
A. No I see nothing.
Q. And as you walked you put your foot down and you fell?
A. And fall down yes."
52 In cross-examination, he was taken to the history of the incident recorded by a medical practitioner (Tcpt, 14/05/07, p 37):
"Q. This doctor doesn't say anything about a hole, did you tell him about a hole?
A. I explain to him that I was carrying that big piece of wood, plywood and I fell. I didn't see where I fell - I didn't see where I stepped, but I fell.
Q. When you were describing how you were carrying this plywood, to Mr Andrews before - do you remember you were describing how you were carrying it?
A. Yes. Yes, one hand here, one hand here. Is very long, one meter 10, one metre 20.
Q. And you couldn't see where you were walking when you were carrying it?
A. Outside, yes, I couldn't see, but when I went inside it was - I couldn't see much, it was dark, could see but not much.
Q. Was the plywood blocking your vision as you walked along?
A. I had the plywood in my hands. I fell down, but the plywood didn't fall.
Q. I am not asking about that Mr Leite. I'm asking about whether the plywood was blocking your vision whilst you were walking holding it?
A. No, the plywood was in my hands.
Q. So, you could see where you were walking, is that what you're saying?
A. I couldn't see much because the left [light] was very far.
Q. So it's got nothing to do with the plywood, it's got to do with the light, is that right?
A. It was far, the light. It was weak."
53 In submissions in reply, the appellants emphasised the answers given by the plaintiff that he "see nothing" before he fell and that he "didn't see" where he stepped. Each of these answers, taken out context, could indicate that his vision was obstructed by the plywood held across the front of his body, or that he was not paying attention to where he was going. Read in context, it is clear that the former explanation is not reasonably open. The plaintiff was clear and specific as to the manner in which he was carrying the board, on his right hand side, with his left hand across his body. He was asked if the plywood was blocking his vision whilst he walked and replied in the negative. When asked if he could see where he was walking, he complained about the light being far away and weak. It was not put to him that he was not paying attention to where he was walking.
54 This evidence does not support the finding that "on his own version of events" the plaintiff was carrying the plywood "in front of his face" so that his forward vision was "at least partly obscured". Nor does the evidence support a finding that the plaintiff was behaving in a way that "no reasonable workman, properly instructed" would have behaved. (The reference to Stevens v Brodribb is obscure.) Further, when his Honour held that his vision was "at least partly obscured", he must have meant obscured to a very significant degree, because he held that the poor lighting did not affect the plaintiff's failure to take care for his own safety. That finding implies that, whatever the state of the lighting, he would not have seen the hole in the concrete slab, because his vision was obscured by the plywood in any event.
55 The factual basis for the finding of contributory negligence being insupportable on the evidence, the finding must be set aside. No alternative basis for finding contributory negligence was proposed by the appellants. Accordingly, the damages should not have been reduced by any amount on account of contributory negligence.
Future attendant care services
56 The trial judge allowed an amount on account of gratuitous attendant care services from the date of the plaintiff's discharge from hospital following the accident until the end of January 2006. During that period he was assisted by his wife. They separated in the first half of 2006, the plaintiff moving out of the matrimonial home in May 2006: [2007] NSWDC 188 at [6]. His Honour also allowed an amount by way of paid attendant care services over the same period.
57 By way of cross-appeal, the plaintiff asserted that the trial judge had erred in failing to allow "future domestic assistance of two hours per week". At the hearing, it became apparent that the claim was for three separate periods, namely for commercial services at an intensity of two hours per week from 1 February 2006 until 1 May 2007 and thereafter, for a period of some 21 weeks to the date of judgment, at the rate applicable for gratuitous assistance. The third period involved a claim at the intensity of two hours per week, at commercial rates, from the date of judgment during the remainder of the plaintiff's life.
58 In relation to the claim for commercial services in the first period, it seems probable that the amount was included in a schedule of out-of-pocket expenses provided to the trial judge in August 2007. It was agreed at trial that the document correctly reflected past out-of-pocket expenses, an agreement noted by his Honour: at [50]. (Although the reference in the judgment is to "medical expenses", it is clear from the schedule that it covered out-of-pocket expenses generally.) Accordingly, no further allowance should be made and arguably none was sought, in respect of past expenses: Tcpt, NSWCA, 21/08/08, p 36. Thus, the only item which was pursued was an amount for future attendant care services, which was claimed at a commercial rate.
59 Only the second period identified by the plaintiff (from 1 May to 24 September 2007) involved a claim for gratuitous, as opposed to commercially provided, attendant care services. In substance, the plaintiff's case turned upon an apparent finding by the trial judge that, since January 2006 the plaintiff had established an entitlement to two hours of attendant care services per week, being an entitlement which was expected to continue indefinitely. However, as the plaintiff and his wife separated in May 2007, and there was no other person who provided services gratuitously, the claim for the second period was unsupportable.
60 The trial judge found that the plaintiff made good recovery from his accident and, in particular, from the shoulder replacement operations: at [60]. That recovery had been achieved by January or February 2006. Somewhat elliptically, his Honour continued at [61]:
"Since January 2006, if he requires or required paid domestic and personal assistance per week, it is for no more than 2 hours per week. I find that he does require some assistance only because both Dr Bodel and Dr Buckley, whose evidence was not challenged in any way, express an opinion to that effect."
61 On the basis of that finding, the plaintiff says that his Honour should have, but did not, include an amount for future attendant care services at the agreed commercial rate, which would have provided a figure of $42,067.
62 Because the ground was abandoned by the plaintiff in written submissions and only reinstated in oral argument, the position of each party on this issue was somewhat unclear.
63 The appellants' response to the claim was that any assistance his Honour obtained from Drs Bodel and Buckley would have been limited by his findings as to the plaintiff's physical capabilities, which relied not merely on medical assessment, but also on the plaintiff's own evidence, which was not accepted in full. His Honour stated that the plaintiff "clearly has some impairment of his mental capacity … primarily of a depressive kind": at [4]. His Honour continued at [5]:
The plaintiff's honesty is a different issue. It emerged from the evidence that he was injured at work and was medically retired in 1992. Before that time he had had both his knees replaced. He said, and his wife also gave evidence, that between 1992 and 2004 he had worked continually as a formwork carpenter for at least four years, a period during which he received regular workers compensation payments. This is at least dishonest and may even be criminal. It does not reflect well on his general honesty. Although his English is not good, he appears familiar with the operation of the workers compensation legislation. He appeared to be aware that an insurer might pay the cost of employing domestic help, and his evidence generally appeared to be tailored to maximise his entitlement to compensation."
64 In considering the issue of domestic assistance specifically, his Honour discounted the evidence of the plaintiff and, to the extent that it conflicted with that of his wife, preferred his wife's evidence, presumably for the period until he left the matrimonial home in May 2006. In particular he stated at [58]-[59]:
"The plaintiff says that he has been unable to do much gardening work, but again, on this issue, I prefer the evidence of Mrs Leite rather [than] his evidence. I accept the evidence that he was able to do a good deal of gardening work, such as pulling up plants, picking grapes from an overhead trellis, and installing supports for a shade cloth which he put over the back garden at the beginning of this year, all without assistance from his wife or anyone else. He was also able to sweep up yard and garden rubbish, using a short handled dustpan and broom.
He admitted that, by January 2007, during a family outing to Nowra, he was able to walk steep gradients on rough surfaces for up to 30 minutes and bend over to pick clams from mud and shallow water, and to carry a bag of wet clams."
65 This finding, together with the tentative way in which the conclusion at [61] was expressed and the fact that two paragraphs later his Honour assessed compensation for domestic assistance "on the following basis only", omitting any amount for future domestic assistance, suggested that, despite confusion of expression, his Honour's failure to award any amount for future attendant care services was deliberate.
66 The actual reliance placed upon the reports of Drs Buckley and Bodel is unclear. Doctor Buckley's report was dated 16 April 2006 and recounted an examination conducted by him in his rooms on 20 March 2006. According to Dr Buckley, the plaintiff's wife was still providing extensive assistance to him in the activities of daily living and domestic chores. Doctor Buckley was of the view that he had personal care requirements amounting to one and a half hours per day, seven days per week, and that he was unfit to carry out ordinary handyman duties, for which an allowance of three hours per week should be made. In addition, he proposed the provision of housekeeper assistance for eight hours per week. Doctor Bodel's report predated that of Dr Buckley. Doctor Bodel saw the plaintiff on 23 January 2006 and adopted a summary of his daily living requirements prepared by an organisation known as Konekt. What figures that document supported is unclear as it appears not to have been tendered: Tcpt, NSWCA, 21/08/08, p 30.
67 His Honour's finding that any assistance since January 2006 was for "no more than 2 hours per week", indicates that he did not accept Dr Buckley's opinion as demonstrating an appropriate figure for the future. Nor can his Honour's reference to Dr Bodel have been intended as indicating acceptance of any particular level of attendant care. Despite the manner in which the findings were expressed at [61], the preferable view is that his Honour deliberately withheld an award of any amount in respect of future attendant care services. The evidence referred to by the plaintiff would be inadequate to support a finding of such a need, unless his Honour's assessment of the plaintiff as a witness were to be rejected. There is no basis for such rejection and it is clear that his Honour relied upon significant evidence supporting the view that the plaintiff was capable of looking after himself and carrying out domestic chores and household maintenance of a kind which might normally be expected of a man of his age. Accordingly, no further allowance for attendant care services should be made.
Conclusions
68 The trial judge calculated the total damages, prior to reduction for contributory negligence, in an amount of $325,398.43. From this must be deducted, pursuant to the agreement of the parties, an amount of $11,643.60, which had been included twice, through no fault of the trial judge. The balance is an amount of $313,754.83.
69 There should be no reduction in this amount for contributory negligence.
70 His Honour correctly held that both the appellants and the plaintiff's employer shared culpability with respect to the accident. Accordingly, as is now conceded, the calculation required by s 151Z(2) of the Workers Compensation Act must be undertaken. It is also conceded that the plaintiff would have been unsuccessful in obtaining an award for damages against his employer, as a result of the statutory limitations on recoverable damages imposed by the Workers Compensation Act. It follows that the appellants could not have obtained contribution from the employer: s 151Z(2)(d). The difference between the amount of the contribution which the appellants would have been entitled to recover from the employer, otherwise than as calculated under the Workers Compensation Act, and the amount recoverable pursuant to that statutory scheme, was thus the full amount otherwise recoverable. The amount recoverable by the plaintiff from the appellants was therefore to be reduced by that amount, so that the plaintiff could only recover the proportion of the damages equal to the appellants' level of culpability.
71 That calculation should be undertaken on the basis that the culpability of the employer was one-third and the culpability of the appellants two-thirds. Accordingly, the plaintiff is entitled to recover two-thirds of the quantum of damages calculated otherwise than under the Workers Compensation Act.
72 The amount so calculated should not be increased by any further amount on account of damages for attendant care services.
73 These calculations provide an award of $209,170. There should be judgment for the plaintiff (respondent) in that amount, in lieu of the amount awarded by the trial judge.
Costs
74 The appellants have been successful in obtaining a marginal reduction in the damages awarded at trial. That reduction followed from the application of the statutory requirements of the Workers Compensation Act, the plaintiff having conceded error on the part of the trial judge in that respect. The reduction also flowed in part from the element of double counting, which was again conceded by the plaintiff.
75 Three issues were agitated during the hearing of the appeal. On two the plaintiff was successful, namely the issue of contributory negligence and the proper apportionment as between his employer and the appellants. He also sought, unsuccessfully, to resurrect a claim for an additional amount by way of attendant care services.
76 Although the parties were not heard on costs, this would appear to be an appropriate case in which to award costs on the basis of success or failure on the particular issues litigated. On that basis, it would be appropriate that the plaintiff (respondent) obtain two-thirds of his costs in this Court, despite the ultimate judgment, which involves a minor reduction of the judgment given below.
77 The parties should have an opportunity to address the proposed costs order. It would seem unfortunate if litigation in respect of what was, ultimately, a small amount, were to be extended by further disputation in relation to costs. Nevertheless, if either party seeks to vary the proposed order with respect to costs, in circumstances where agreement cannot be reached, that party has leave to file written submissions in support of the proposed variation within 14 days of delivery of judgment, the other party having seven days in which to respond. That leave should extend to any issue as to the calculation of damages undertaken above.
78 The orders of the Court are: