Form of judgment
49 The Plaintiff obtained judgment in the District Court against her employer and the occupier Timberland. The Workers Compensation Act 1987 (NSW) required the damages awarded against an employer to be assessed in accordance with the Act: see Div 3 of Pt 5, ss 151E-151P. As a result the trial judge assessed the damages payable by the employer at $105,549.59 and by the occupier at $103,683.09: Judgment at [79] and [80]. These verdicts were subject to deductions of 25% for contributory negligence, and in the case of the employer, a further deduction for amounts paid under the Act. The trial judge apportioned liability between the defendants on the basis of 30% to the employer and 70% to the occupier: see further Judgment of 11 March 2004, at [10].
50 The reason for the apportionment undertaken on 11 March 2004 was, according to standard practice, to allow the Court to make the necessary calculation which is required where a worker seeks to recover damages from a person other than his or her employer, but also is entitled to take proceedings against the employer. Section 151Z(2) of the Workers Compensation Act is directed to such a situation and seeks to provide for the circumstance where the amount assessed in accordance with the provisions of Part 5, Division 3 of the Act may not be the same as those independently assessed, for the purposes of the claim against the non-employer. The purpose of sub-s 151Z(2) is to ensure that, where the employer is required to meet a proportion of the damages, its proportionate obligation is limited to that which it would have to pay if the damages were assessed in accordance with Part 5, Division 3, that portion of the non-employer's liability being similarly reduced so that it does not have to pay the balance which it is unable to recover from the employer. As noted by Handley JA in Grljack v Trivan Pty Ltd (unrep, 19 April 1996) at p 5 in relation to s 151Z(2)(c):
"Paragraph (c) requires the difference between two amounts separately calculated to be ascertained and deducted from the damages otherwise recoverable from the third party tortfeasor. The first amount, which the paragraph contemplates will be the larger, is 'the contribution which the person would (but for this Part) be entitled to recover from the employer'."
51 The construction of the provision, and the nature of the calculations required, are helpfully set out in the judgment of Allen J in Leonard v Smith (1992) 27 NSWLR 5, approved by this Court in Grljack at pp 7-8 (Handley JA, Sheller and Powell JJA agreeing). A further helpful example of the application of the section is to be found in the judgment of Beazley JA in State of New South Wales v Kennelly (No. 2) [2001] NSWCA 472 at [26]. That calculation cannot be undertaken without determining the relevant apportionment between the respective defendants.
52 As Handley JA noted in Grljack, the section appears to assume that the assessment undertaken otherwise than under the Workers Compensation Act will be the larger. The present case, however, did not conform to that assumption: the assessment against the employer provided the larger figure, so that the damages recoverable from Timberland would not be reduced pursuant to s 151Z(2)(c). (On one view they would have been reduced by a negative amount and thus increased: no party suggested such an outcome and it appears not to conform to the language or purpose of the statutory provision.) That result should have been obvious immediately the assessments were made, with the result that, strictly speaking, no apportionment of liability was required for the purposes of the Act. There appears to have been no claim for contribution before the District Court. Nevertheless, the task was undertaken and the result has not been challenged.
53 So far as the Plaintiff was concerned, the only outstanding matter, as at 25 February 2004 when the substantive judgment was delivered, was the possible inclusion of an amount in respect of past economic loss. None was identified. A precise figure could not have been determined as against the employer, until the amount of payments (if any) made under the Workers Compensation Act had been identified. There may have been no such payments, judgment in fact being entered against the employer for an amount calculated as 30% of the total liability assessed under the Act, without deduction. However, on the leave application in this Court, counsel for Timberland advised that the 30% calculation was approximately equal to the workers compensation payments.
54 Pursuant to an invitation from the trial judge, short minutes were brought in by the parties, and his Honour gave judgments for the Plaintiff against the occupier for $54,433.75 and against the employer for $23,747.62, subject in the latter case to deduction of the payments made under the Workers Compensation Act. These judgments were not correct and the Plaintiff in her cross-appeal sought judgments for the full amounts against each defendant, subject in the case of the employer to deduction of the amounts paid under the Act.
55 At common law a plaintiff who recovered against several concurrent tortfeasors was entitled to several judgments against each for the full amount. This principle was not affected by s 2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which authorised apportionment of liability between defendants: Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483, 503, 512. Accordingly the plaintiff was still entitled, notwithstanding any apportionment, to judgment against each concurrent tortfeasor for the full amount. Apportionment was a matter between the defendants which did not concern the plaintiff.
56 As noted above, the premise underlying s 151Z is that the modification of common law damages effected by Part 5, Division 3 of the Workers Compensation Act means that, although there may be joint tortfeasors responsible for identical damage, the amount payable by an employer may not be the same as that payable by another tortfeasor. As a result, s 151S(1) of the Workers Compensation Act now provides:
"(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies."
57 However, it is apparent that neither s 151Z, nor s 151S affected the principle that a plaintiff was entitled to a judgment against each tortfeasor, even though in different amounts reflecting the differing bases of calculation of liability. Apportionment remains a matter between the tortfeasors. Thus, in Oxley County Council v MacDonald [1999] NSWCA 126, Sheller JA, giving the principal judgment, held at [51] that neither s 151S nor s 151Z affected the common law rule:
"In the relevant parts of s151Z there is nothing which inhibits the Court from entering verdicts for the full amount of the damages payable by each of the first and second defendant, as was done in this case. Nor do I think there is anything in s151S(1) which has this consequence."
58 The cross-appeal should be allowed on this point and the judgments entered in the District Court set aside. In lieu thereof there should be judgment against the employer for $105,549.59, less 25% for contributory negligence and less payments under the Workers Compensation Act and judgment against Timberland for $103,683.09 less 25% for contributory negligence. Both Timberland and the employer should have liberty to apply to the District Court for the entry of judgments for contribution.