His Honour Deputy President Acting Judge B.P. Gilchrist

Appeal - Practice - Section 54 recoveries governed by the Rules of the Industrial Relations Court of South Australia not the Supreme Court Rules - Obligation to plead facts not law - The Trial Judge should have entertained submissions based upon the law notwithstanding that they were not pleaded - Discussion as to whether a party making submissions in respect of matters not pleaded should be permitted do so - Even if amendment allowed the evidence before the Trial Judge did not support the submissions made - Appellant - employer?- Appellant engages rigger through a labour hire company - Presumption that labour hire company employer not displaced - Appellant - employer as defined by section 54(8)?- Evidence did not establish that the appellant was vicariously liable for the torts of the labour hire company - Appellant - deemed employer? - Evidence does not establish that the putative employee agreed to work personally for the appellant - Arrangement or understanding between the putative employee and the appellant did not satisfy Regulation 4 - Contributory negligence? - No basis to disturb the Trial Judge's finding that the plea of contributory negligence had not been made out - Capacity to moderate an award to reflect `overpayment' - Equity good conscience provision (section 85) permits adjustment - Assessment of damages - Issue estoppel does not arise because the action was not between the appellant and the injured party - Test is whether the assessment is equal to or greater than the amount of the award - Test satisfied here - Appeal dismissed - Ss. 32, 36, 42A, 43, 54, 85 Workers Rehabilitation and Compensation Act, 1986; S. 8 Workers Rehabilitation and Compensation Act 1995; Regulation 4 Workers Rehabilitation and Compensation (Claims and Registrations) Regulations 1987; Rule 21 Workers Compensation Tribunal Rules 1996; Rules 48-60 Industrial Proceedings Rules 1995.

Aitco Pty. Ltd. Federated Liquor & Allied Industries Employees Union (SA) Branch Agreement 1985 (1988) 55 S.A.I.R. 184

Alexander v. Cambridge Credit Corp. Ltd. (recs apptd) (1985) 2 N.S.W.L.R. 685

Australian Safeway Stores Pty. Ltd. v. Zaluzna (1986) 162 C.L.R. 479

Banque Commerciale SA, En Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 92 A.L.R. 53

Dare v. Pullham [1982] HCA 70; (1982) 148 C.L.R. 658

Denham v. Midland Employers Mutual Assurance Ltd. [1955] 2 Q.B. 437

H. G. Collett Pty. Ltd. v. Alsop and Alsop (1982) 49 S.A.I.R. 309

Hackshaw v. Shaw [1984] HCA 84; (1984) 155 C.L.R. 614

Haines v. Bendall [1991] HCA 15; (1991) 172 C.L.R. 60

International Harvester Co. of Australia v. Corrigan's Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 C.L.R. 644

Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 C.L.R. 672

Linou v. Antonas Constructions (1984) 35 S.A.S.R. 399

Marginson v. Blackburn Borough Council [1939] 1 All.E.L.R. 273

Middle Harbour Investments Ltd. (in liq) (unreported Court of Appeal) NSW 15 December 1976

Norris v. McNair (1992) 167 L.S.J.S. 389

Oceanic Krest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. (1985) 160 C.L.R. 262

Paglia v. Trice [1991] SASC 2861; (1991) 56 S.A.S.R. 62

Powerflex Services Pty. Ltd. (1996) 137 A.L.R. 498

Qantas Airways Ltd. v. Gubbins (1992) 28 N.S.W.L.R. 26

Rupcic v. A W Baulderstone Pty. Ltd. and Others (1987) 46 S.A.S.R. 99

S.P. Hywood Pty Ltd v. Standard Chartered Bank Ltd. (unreported S3764 delivered 21 December 1992)

San Sebastian Pty. Ltd. and Another v. The Minister (1986) 162 C.L.R. 341

Santos v. Saunders (1988) 49 S.A.S.R. 556

Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; [1953] A.C. 663

Stevens v. Brodibb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R. 16

Stevens v. Trewin and Van Den Broek [1968] Qd.R. 411

Sungravure Pty. Ltd. v. Meani [1964] HCA 16; (1964) 110 C.L.R. 24

Thompson and Sons v. North Eastern Marine Engineering Co. Ltd. [1903] 1 K.B. 428

Trade Practices Commission v. David Jones (1986) 64 A.L.R. 67

Trade Practices Commission v. Email Ltd. [1980] FCA 86; (1980) 31 A.L.R. 53

Trade Practices Commission v. TNT Management Pty. Ltd. (1985) 58 A.L.R. 423

Vial v. Housing Commission of N.S.W. and Another [1976] 1 N.S.W.L.R. 388

Wilsons & Clyde Coal Co. Ltd. v. English [1937] UKHL 2; [1938] A.C. 57

Mr. S. Walsh Q.C. and Mr. O. Downs (of counsel) for the Appellant.

This is an appeal by York Civil Pty. Ltd. (`York') against the Workers Rehabilitation and Compensation Corporation (`the Corporation'). The Corporation has obtained judgment in the sum of $151,659.80 plus costs in respect of an action by it against York pursuant to Section 54(6) of the Workers Rehabilitation and Compensation Act 1986 (`the Act').

The action by the Corporation against York was based on the fact that the Corporation had paid compensation pursuant to the Act to James Michael Ahern (`Ahern') and upon the grounds that Ahern had an entitlement to prosecute a claim for damages at common law in respect to the injuries that were the subject of that compensation, against York.

Ahern is a man who is now aged 55 years and who was a rigger by trade. In the course of pursuing that trade, he regularly worked with cranes and fixed structural steel. He became qualified to perform that work in 1971 and since then he has worked in various places for various organisations, including in more recent times, a number of labour hire companies, one of which was Skilled Engineering Pty. Ltd. (`Skilled').

From time to time Ahern would be contacted by Skilled and would be requested by it to work on a particular job, sometimes as a rigger, sometimes as a dogman, and sometimes as a crane driver. He would be advised of the nature of the job, where it was to be performed and who he was to report to. His rate of pay was predetermined by Skilled. It might vary, depending upon the classification of the work that he was undertaking and the site at which it was to be performed. But, it was not a matter that he would negotiate upon, either with Skilled or those for whom he performed work. It was Skilled who paid him his wages and at the end of the financial year, it was Skilled who provided Ahern with a group certificate recording the money that he had received for performing the work that Skilled had arranged for him to perform.

Sometime in about early April 1992, Ahern received a telephone call from Skilled directing him to attend at a construction site in connection with the South Road Connection. He was advised that he would be involved in bridge work. He was asked to report to a site foreman on the site. Ahern duly arrived on site at about 7.00 o'clock in the morning and was introduced to a crane driver whom he knew as Glen. He also spoke to a person who was wearing a York hat, who seemed to Ahern, to be the site supervisor and who gave Ahern information about the site and a general outline of what was going on. Ahern was asked whether this man told him how to go about his rigging work. Ahern said:-

`No, I would have told him to go and get stuffed, I think, if he did.

A. Well, I'm the rigger. I'm the guy who's in charge of placing everything ...'

Ahern had some discussions with the crane driver. Ahern's evidence on this topic is as follows.

`Q. You had some discussions with the crane driver about who was doing what and when.

Q. He was going to take these culverts and put them in place and you were going to assist him in doing that.

Q. Did he tell you at all how you were going to go about doing it.

A. No, he automatically assumed I'd know my business.

Ahern spoke of other duties that he carried out whilst at this site. He talked of moving the crane, putting it into position, de-rigging and re-rigging.

`The mobile crane, when in position was stabilised by four outriggers which provided a stable platform for the lift. They are clearly seen in photograph 4 of Exhibit 5. Those outriggers required a firm level surface. This was effected by hardwood blocks or metal reinforced blocks being placed under the outriggers. Some blocks were stored on the crane and some were at the site. When the crane moved as demanded by the progress of the job, the blocks were moved. The hardwood blocks were either half railway sleepers or one/third railway sleepers. They weighed somewhere between 40 and 60 lbs.. It was part of Mr. Ahern's duties to assist in moving the blocks - no doubt because it was part of his responsibility to see that the lifting and placing of the culverts was carried out safely and efficiently. I find as a fact that Mr. Ahern was engaged upon duties comprehending and effectuating the above on behalf of York.'

The learned Deputy President found that in performing these duties on 30 April 1992, Ahern, was carrying a half sleeper, which was used as a base underneath the outrigger of the crane; that he struck his foot on a piece of reinforcing rod causing him to stagger and fall backwards; and that this caused him to sustain an injury to his lower back and lumbar spine.

The following day, Ahern completed a compensation claim form alleging inter alia, that Skilled was his employer. On 6 May 1992, Skilled completed an `Employer Report Form' and submitted it to the Corporation. The Corporation accepted the claim and thereafter, Ahern came to be in receipt of compensation pursuant to the Act. He received weekly payments of income maintenance, medical expenses pursuant to Section 32 of the Act, a lump sum payment pursuant to Section 43, a loss of earning capacity payment pursuant to Section 42A, and a lump sum payment in redemption for his future entitlements to a lump sum capital payment for future loss of earning capacity and in redemption of his future entitlements to compensation pursuant to Section 32.

In all, the Corporation paid to Ahern, the sum of $157,675.80. The learned Deputy President found that had the Corporation resolved to invoke Section 36 of the Act more expeditiously, so as to moderate Ahern's weekly payments of income maintenance upon the anniversary of his incapacity, rather than some 64 weeks later, it would have paid $6,016.00 less than it actually had paid.

In any event, the Corporation prosecuted a claim against York pursuant to Section 54(6) of the Act to recover the compensation that it had paid to Ahern which culminated in the judgment that is the subject of this appeal. In respect thereof, the learned Deputy President made the following findings: that York owed Ahern a duty of care; that that duty of care was analogous to the duties owed by an employer to an employee; that Ahern's injury resulted from York's breach of that duty; that Ahern was not guilty of contributory negligence; and that Ahern's notional entitlement to damages, as against York, amounted to $267,427.00.

Although York's notice of appeal contains 29 separate grounds, most were abandoned.

In the end, York's basis for complaint against the judgment of the learned Deputy President, can be distilled to the following:-

1. As a matter of law, the action against it cannot be maintained because:

(a) York was, as a matter of fact, the employer of Ahern such that no liability attached to it at common law: Section 54(1).

(b) In the alternative, it is to be deemed to be an employer, because it satisfies the definition of employer contained within Section 54(8), it being a person who was vicariously liable for the torts of Skilled.

(c) Further, in the alternative, it was the deemed employer of Ahern by reason of the extended definition of employer, as prescribed by the Act and Regulation 4 of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1987 (`the regulation').

2. If an action at common law by Ahern could have been sustained against York, its duty was not analogous to that of an employer and although that does not negate the finding of negligence against it, it does mean that the issue of Ahern's contributory negligence had to be looked at in a different light and that there should have been a finding of contributory negligence.

3. The amount of the judgment is too high, because it reflects sums of money paid by the Corporation to Ahern that should not have been paid, had the Corporation acted more diligently in its handling of Ahern's claim.

4. The assessment of damages is too high, because it assumes a level of incapacity that cannot be sustained on the evidence; because it wrongly assumes that the payments made by the Corporation to Ahern accurately reflected the extent of Ahern's losses; and because as a matter of law, the learned Deputy President was wrong to have included in his notional assessment, an allowance for interest in respect of past economic loss. It was submitted that the assessment requires correction even if it is ultimately concluded that the amount of the judgment is correct.

The learned Deputy President found that Ahern was employed by Skilled. In respect of this issue, he said as follows:-

The claim that James Michael Ahern was employed by Skilled Engineering Pty. Ltd. is not admitted in the defence.

A plea of non-admission can only be pleaded where the pleader also says that the fact is not known, and a mere plea of non-admission without saying the fact is not known may well be treated as an admission of that fact under Rule 46 -12(2) Rupcic v. A.W. Baulderstone Pty. Ltd. and Others (1987) 46 S.A.S.R. 99:-

`It is a dangerous pleading of little if any practical benefit: Norris v. McNair (1992) 167 L.S.J.S. 389 (Lunn p.8537).'

To the extent that there is not an admission, I am satisfied that Skilled employed Mr. Ahern. Whereas the admission of the employer's report form cannot bind York, it is corroborative of the relationship Mr. Ahern alleges existed between himself and Skilled. If there is an admission on the pleadings (and I am of the view that there is) - on that basis also, Mr. Ahern was employed by Skilled.'

The learned Deputy President ruled that the allegation that York was Ahern's employer was not raised on the pleadings and was therefore not properly before him.

`Whatever merits there are in the defence, it falls squarely within 46.12(4)(a), (b) and (c). It cannot be raised at the end of a 7 day trial.'

It now becomes necessary for us to consider whether he was right to have formed that view.

The learned Deputy President's ruling as to pleadings

The learned Deputy President proceeded on the basis that the Supreme Court Rules relating to pleadings, governed the matter before him. With respect, that was an error. Prior to the enactment of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (see section 8 thereof, operative on and from 3 June 1996), actions pursuant to Section 54 of the Act were prosecuted in the Industrial Relations Court of South Australia. In respect thereof, specific rules are expressly provided for within the Industrial Proceedings Rules. These are set out in Rules 48 to 60 of the Industrial Proceedings Rules. They are quite detailed in their form.

Notwithstanding that actions of this type now fall within the jurisdiction of the Tribunal, Rule 21 of the Workers Compensation Tribunal Rules 1996 specifically preserves the procedure that operated in the Industrial Relations Court of South Australia immediately prior to the proclamation of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995, such that the Rules of that Court should have applied.

The two Rules of that Court which had immediate application were Rule 50(5)(a) of the Industrial Proceedings Rules 1995 which provides:-

`A party in his defence or any subsequent pleading shall specifically admit or deny every material allegation of fact in a pleading (including particulars) and allegations which are not specifically denied shall be deemed to be admitted. An allegation in a defence that a respondent does not know and therefore cannot admit a fact alleged in the applicant's Statement of Claim shall be deemed to be a denial for the purposes of this Rule.' (Emphasis added ours)

`A respondent must plead specifically every ground of defence on which he relies, together with the facts upon which the ground of defence arises'

In respect of the allegation that Skilled was the employer of Ahern, the specific pleading that deals with this matter is contained in paragraph 1 of the Corporation's Statement of Claim. It provides as follows:-

`On the 30th day of April 1992 and at all material times, James Michael Ahern (hereinafter referred to as `Ahern') of 44 White Avenue, Lockleys in the State of South Australia, was employed by Skilled Engineering Pty. Ltd. (hereinafter referred to as `the employer') as a crane driver and rigger.'

`The respondent does not and cannot admit the allegations contained in paragraph 1 of the Statement of Claim.'

The use of the word `cannot' in York's pleading, suggests that it was unable to admit the allegation. The reasonable inference is that it was unable to do so because it did not know.

It seems to us therefore, that contrary to the view expressed by the learned Deputy President, the form of York's pleading in respect of this allegation is tantamount to a denial, such that its only defect, is an absence of particularity. Given the failure of the Corporation to make any request for particulars or to have made any complaint at trial about the nature of this pleading, we take the view that York's pleading was competent, such that it was incumbent upon the learned Deputy President to resolve the issue as to whether or not Skilled was the employer of Ahern.

But it does not follow from this that the Corporation should have been aware that York was asserting that it was Ahern's employer. Contrary to what was submitted by York, it was not up to the Corporation to prove that York was not Ahern's employer. The action by the Corporation was plainly based upon the premise that York was a third party tortfeasor and if York contended otherwise it was for it to say so. It is conceivable that the Corporation might have been aware that that is what York was contending as a result of its pleading in response to the allegation that Skilled was Ahern's employer. But that was not the only inference that one could have drawn from that. We therefore agree with the learned Deputy President that York should have specifically pleaded that it was Ahern's employer. But, with respect, we do not agree with His Honour's approach to the consequences that flow from York's failure to do so.

We think that a distinction has to be drawn between issues of fact and law. A failure to plead relevant facts will generally preclude a party from obtaining a judgment based upon those facts (for a discussion about the function of pleadings and particulars generally, we refer to the judgment of Murphy, Wilson, Brennan, Deane and Dawson J.J. in Dare v. Pulham [1982] HCA 70; (1982) 148 C.L.R. 658 at 664; see also Banque Commerciale S.A.,En Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 92 A.L.R. 53 at pp 56 and 57 per Mason C.J. and Gaudron J; and S.P. Hywood v. Standard Chartered Bank Ltd. (unreported S 3764 delivered 21 December 1992). But if as a matter of law, in respect of factual matters which are not in dispute, a party is not entitled to the relief sought, then it seems to us that the Tribunal should rule on that issue, once raised, notwithstanding that it was not pleaded. To the extent that Rule 51 (1) suggests otherwise, it should be read down.

The issue as to whether Ahern is deemed to be an employee of York by reason of the regulation, concerns issues of law relating to factual matters that are not in dispute. That being so, the matter having been argued before him, it is our view that the learned Deputy President was obliged to deal with it, notwithstanding the fact that it was not pleaded.

The position in respect of the other issues is not so clear. Although legal issues are clearly involved, the contention that York was Ahern's employer in fact is essentially factual and the contention that York satisfies the extended definition of employer in section 54 involves some factual matters that are in dispute.

We are inclined to agree with the view expressed by the learned Deputy President that as these matters were not specifically pleaded, it was not, and on appeal, is not, open for York to pursue them. One can imagine that if these matters had been pleaded there were pre trial steps that might have been undertaken by the Corporation to deal with them. It may have sought further discovery. It may have wished to interrogate. It may have changed the way it presented its case. It was simply not good enough for York to have raised these matters for the first time at the end of the Corporation's case and in respect of the contention concerning the extended definition of employer in section 54 in the course of closing submissions at trial.

It is conceivable that the view might be taken that as York raised these matters during the trial, albeit belatedly, that it should have been invited to make application to amend its pleadings so as to conform with the arguments that it was putting to the learned Deputy President. We express no concluded view about that. Moreover we are not to be understood as indicating that if such an application were made, leave to amend had to be granted. We make this observation because even if an application to amend had been made and had been granted, it is our view that on the evidence presented to the learned Deputy President, the arguments mounted by York could not have succeeded.

Although for the reasons outlined above, we are of the view that York through its pleadings had effectively denied that Skilled was Ahern's employer, the evidence does not bear that out. It is apparent from the evidence that Ahern was a skilled tradesman. The passage of evidence that we referred to earlier in these reasons regarding Ahern's views as to York's capacity to direct him makes it clear that although York may have been able to direct Ahern to do certain work, it could not direct him as to how he was to go about it. To borrow the words of Lord Denning in Denham v. Midland Employers Mutual Assurance Ltd. [1955] 2 Q.B. 437 at 445, it was Skilled who selected Ahern. They paid him. They alone could suspend or dismiss him. Ahern was never asked to consent to a transfer of the contract of service to York and he never did so. If Ahern was not paid his wages, or if he was wrongfully dismissed from work, his action would lay against Skilled, not York. If he failed to turn up for work, Skilled alone could take action against him. Skilled was undoubtedly his employer. On common law principles the only conceivable way that York could be regarded as Ahern's employer is if he could be regarded as being employed by both Skilled and York. Notwithstanding the remarks by Brennan J (as he then was) in Oceanic Crest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. [1986] HCA 34; (1985) 160 C.L.R. 626 at 668, we doubt whether at common law a person can be regarded as an employee of more than one legal entity at the same time in respect of the same work (see Fleming Law of Torts, 7th ed. (1987) p.248). But even if one were to assume that that was permissible, the evidence does not establish that a relationship of employment as between Ahern and York existed.

The alternate argument by York based upon the extended definition of `employer' as contained in section 54(8) similarly fails for lack of evidence. It was said that if Skilled was Ahern's employer, it owed him a non delegable duty to provide him with a safe place of work. That submission is plainly correct: Wilsons and Clyde Coal Co. Ltd. v. English [1937] UKHL 2; [1938] A.C. 57; Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 C.L.R. 672. Next it was said, that if as a result of Skilled's relationship with York, Skilled had breached that duty to Ahern, York was vicariously liable to Skilled in respect thereof, such that it was deemed to be the employer for the purposes of section 54(8).

The fallacy in the argument is that the fact that Skilled breached its duty to Ahern as a result of its relationship with York is not sufficient to create a vicarious liability in York for Skilled's tort. Other than in the context of an employment relationship or agency (and for reasons which we will develop later that does not exist here) the circumstances which give rise to a vicarious liability are extremely limited and only arises in defined circumstances (see Fleming (supra) Ch. 19 and Clerk and Lindsell on Torts 15 ed. (1982) Ch. 3). We accept that if the organisation test of which Murphy J. spoke in Kondis v. State Transport Authority (supra) received more universal acceptance, those categories might be enlarged. But the fact is, that that test has not been endorsed: Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R. 16 at 28 per Mason J. (as he then was) and in any event, it contemplates that the party to be held vicariously responsible for the torts of others should be the party undertaking the construction work generally and being responsible for the site. If the evidence were capable of establishing the existence of such a party, it would be the Department of Transport, not York.

We now turn to consider the second and alternate argument put forward by York in support of its contention that it was, as a matter of law, the employer of Ahern, based upon the extended definition of `contract of service' and the regulation. For the reasons outlined above this was an issue that the learned Deputy President was obliged to deal with.

The term `contract of service' is defined in the Act as including:-

`A contract, arrangement or understanding under which one person (the worker) works for another (the employer) in prescribed work or work of a prescribed class'

The regulation specifies certain classes of work as being prescribed, which includes `building work'. Thereafter, it prescribes certain qualifications, such as the requirement that the relevant work be performed personally; that the putative worker not employ anyone else to perform the work; and that there be limits as to the amount of materials supplied.

The argument by York is at first blush, compelling. Ahern was performing building work for York, he performed it himself and he supplied no materials. But the argument does not survive a closer analysis.

In the first place, although he performed the work himself, there is no evidence to suggest that he, as opposed to any other experienced rigger, had to do so. Subject to the qualification discussed by Jonhson J. in Linou v. Antonas Constructions Pty. Ltd. (1984) 35 S.A.S.R. 399, a necessary feature of the deemed relationship of employment is that the work has to be performed personally.

Secondly, although clearly Ahern was performing work for York pursuant to an arrangement or understanding, it does not follow that it was an arrangement or understanding that satisfies the regulation.

Provisions of the type contained within the regulation are common place in workers compensation schemes. They are frequently referred to as a deeming provisions. That is to say, they deem a person who in law is not a worker, to be a worker. Independent contractors or self employed persons who would not otherwise be afforded the protection of the Act, are afforded that protection by provisions of this type. They exist for their benefit. They do not exist so as to provide those who are employed, the opportunity to identify others as their employer. Thus the expression `contract arrangement or understanding' has to be interpreted in that light.

In Trade Practices Commission v. David Jones (1986) 64 A.L.R. 67 at p.83, Fisher J. spoke of the meaning of the term `understanding' as connoting an element of mutual commitment and an acceptance of mutual obligations. His Honour's remarks were in the context of the Trade Practices Act 1974 (Commonwealth) and in respect thereof, they have not been universally endorsed_: Trade Practices Commission v. Email Ltd._ [1980] FCA 86; (1980) 31 A.L.R. 53 at p.66 per Lockhart J_.; Trade Practices Commission v. TNT Management Pty. Ltd._ (1985) 58 A.L.R. 423 at p.446-9 per Franki J. But notwithstanding that, we think that they are apposite here.

The arrangement or understanding has to be, between York and Ahern, and it has to give rise to mutual commitments and obligations between them.

In this case, that is lacking. The commitments and obligations are between York and Skilled and between Skilled and Ahern. Whilst it is no doubt true that those commitments and obligations have given rise to the relationship between York and Ahern, they have not, in our view, created an arrangement or understanding between them, that is sufficient to create a deemed relationship of employment. The position might well have been different had Skilled been an agent acting on behalf of York or Ahern, bringing about a relationship between them. But the evidence does not support such a finding here. The fact that Skilled might in a business sense have been regarded as an `agent' is not to the point. That term has a very definite meaning in law. It is limited to circumstances wherein one person has `the authority or capacity ... to create legal relations between a person occupying the position of principal and third parties': International Harvester Co of Australia v. Corrigan's Hazeldene Pastoral Co. [1958] HCA 16; (1958) 100 C.L.R. 644 at p.652 per Dixon C.J., McTiernan, Williams, Fullagher and Taylor JJ..

For these reasons we reject the contention that York was, as a matter of law, Ahern's employer. We therefore agree with the learned Deputy President that the action against York was competent.

Should there have been a finding that Ahern was guilty of contributory negligence?

It was contended by York that if it was not the employer of Ahern, it must follow that Skilled was his employer, such that it was Skilled, not York, that had imposed upon it, the very onerous duty that the law imposes upon employers, as exemplified by their non delegable duty to provide a safe place of work: Kondis (supra). The argument then went, that it must follow, that York's duty to Ahern must be something less. It was said that courts apply a benevolent attitude in determining the existence of, and extent of contributory negligence by a worker in damages claims against employers and that this results from the nature of their relationship and the onerous duty that the law imposes upon an employer. Next it was said, that in dealing with the issue of contributory negligence here, one was not dealing with a worker as to an employer, but with a non-employee to a non-employer, such that mere inadvertence, which might not provide a basis for a finding of contributory negligence as against an employer, should suffice in this case.

There was a time when cases involving claims for damages for injuries sustained by a person present upon property in the control of another when distinctions were drawn between the nature of the duty owed by the other to that person, depending upon the nature of their relationship, be that as employer to employee, or occupier to licensee, invitee or trespasser.

In our view, the more recent authorities indicate that those distinctions no longer apply. We refer generally to the decision of the High Court in Australian Safeway Stores Pty. Ltd. v. Zaluzna (1986) 162 C.L.R. 479, and the references therein to San Sebastian Pty. Ltd. v. The Minister (1986) 162 C.L.R. 341; and Hackshaw v. Shaw [1984] HCA 84; (1984) 155 C.L.R. 614.

York's duty to Ahern was a duty that was commensurate with all of the circumstances.

Mr. Walsh seeks to draw a distinction between the duty of an employer and the duty that York owed to Ahern. He submitted that if York was not the employer, it was not in a position to issue Ahern with instructions as to carry out his work. That is true. It is also true that York's duty to Ahern was not identical to the duty owed to Ahern by his employer, Skilled. But it does not follow that in particular respects, the duty owed by York necessarily has to be different to that owed by Skilled because of the circumstances in which the work was being performed.

Moreover, what this submission overlooks is the fact that Ahern's injury did not occur as a result of some deficiency in the way he went about his work as rigger. It occurred, because Ahern struck his foot on a piece of reinforcing rod that the learned Deputy President found ought not to have been there, and moreover, that York, had a responsibility to ensure that it was not. Those findings have not been challenged, nor, could they have been.

The learned Deputy President declined to make a finding of contributory negligence against Ahern, on the basis that `Mr. Ahern was mistaken when he did not see the reo. However, mistake is not contributory negligence.' That statement must be put in the context of what preceded it. The learned Deputy President said:-

`The task to be performed in this case is carrying a half railway sleeper on a gravel sub-base on a construction site that already had other sleepers as obstacles in the way of ambulatory progress. Is the failure to notice a piece of reo protruding from the ground negligence on the part of Mr. Ahern?'

In Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; [1953] A.C. 663 at p.682 Lord Reid explained how the issue of contributory negligence is to be approached. He said:-

`A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but `the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness". The result is that damages are to be apportioned according to the proportions in which the parties are responsible for the damage taking into account both causation and blameworthiness, and the amount recoverable must be reduced "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."'

The learned Deputy President declined to make a finding of contributory negligence because in the overall scheme of things, he did not regard the accident giving rise to the injury as being Ahern's fault. That was a conclusion that was open on the evidence. It was a finding that was not contingent upon the relationship between Ahern and York as being analogous to that of employee to employer. It was a finding that could have been made as between an invitee upon premises and occupier: see Sungravure Pty. Ltd. v. Meani [1964] HCA 16; (1964) 110 C.L.R. 24 at 37; Vial v. Housing Commission of New South Wales and Another [1976] 1 N.S.W.L.R. 388 at 392.

We are therefore not persuaded to interfere with the learned Deputy President's finding that the plea of contributory negligence was not made out.

York challenges the figure of $151,659.80, being the amount that the learned Deputy President found as being the amount which the Corporation had paid to Ahern pursuant to the Act. It says that the Corporation could have taken steps to moderate the weekly payments of income maintenance that it paid to Ahern. It says that the capital payment made by the Corporation was too high because it failed to reflect what the worker could earn in suitable employment and because it assumed a greater period of incapacity than was actually the case, relying as it did on an assumed age of forty seven and a half years instead of fifty four years.

As that amount exceeded the amount of compensation paid by the Corporation to Ahern, the learned Deputy President limited his judgment to such amount, less, the amount of $6,016.00. He made that deduction because he regarded that amount as being an overpayment for the reasons outlined above. He did not however state the legal basis upon which the deduction was made. We note that the Corporation does not challenge the deduction. But it begs the question as to whether in actions of this type it is appropriate for the Tribunal to inquire into the payments made by the Corporation to the worker or whether it should simply accept them on face value. One might expect that a party against whom actions of this type are pursued ought to be able to challenge the appropriateness of those payments, given that the quantum of those payments is largely a matter for the Corporation, with review only available to an aggrieved worker or interested employer. But the relevant provisions talk only in terms of `compensation paid or payable'. They do not talk in terms of ` a liability to pay compensation that has been reasonably incurred'. This suggests that the only inquiry is whether or not such payments can be properly characterised as payments of compensation and if that is answered affirmatively, they can be the subject of recovery, notwithstanding that a more diligent handling of the worker's claim might have reduced their quantum. The payments that are the subject of this action can clearly be so categorised. A weekly payment of income maintenance is a payment of compensation under the Act, notwithstanding that steps could have been taken to moderate and reduce its quantum. The same is also true of a capital payment pursuant to section 42A, notwithstanding an unchallenged flaw in the arithmetic used. As is the case in action for indemnity at common law, a lack of bona fides might affect the situation, but there is no evidence of that here. That being the case, we conclude that the Corporation had a prima facie right to recover all payments made by it to Ahern pursuant to the Act.

Given the learned Deputy President's finding that the Corporation made, what he described as an overpayment, the question then arises as to whether that can and should be factored into the ultimate order of the Tribunal. In our view, the decision of King C. J in Paglia v. Trice [1991] SASC 2861; (1991) 56 S.A.S.R. 62, provides some guidance. That case dealt with a claim made by the Corporation against a worker who had received compensation and who had pursued an action for damages at common law against a negligent third party. The Corporation's claim was based upon section 54(7) which allows a claim to be made against the worker out of the monies the worker is to receive from the negligent third party. In respect of the damages claim the trial judge disallowed some of the expenses that the worker had recovered from the Corporation pursuant to section 32. The Corporation endeavoured to recover all of the amounts that it had paid to the worker, including the amounts that the trial judge had disallowed in the worker's damages claim. The worker challenged the amount claimed by the Corporation arguing that those expenses found by the trial judge to have been unnecessarily incurred should not be regarded as compensation paid pursuant to the Act. On this issue King C.J. said at p. 67 that the amount recoverable by the Corporation was limited to expenses reasonably incurred by the worker.

The issue that His Honour was dealing with there was slightly different than that with which we are confronted because that matter related to a challenge in respect of section 32 expenses. That section provide that such expenses are only recoverable if they are `reasonably incurred'. There is no such qualification in respect of other species of compensation provided for by the Act. Moreover, the claim was against a worker who had received the compensation that the Corporation sought to recover. It was not, as is the case here a claim made against a party who had no input into the amounts paid by the Corporation and who received no benefit from their payment. But that said, His Honour's approval of the judgment of Kennedy J in Thompson and Sons v. North Eastern Marine Engineering C. Ltd. [1903] 1 K.B. 428 at 423, suggests that the Act ought to be interpreted and applied in a way that enables an over payment to be factored. The relevant passage of that judgment to which King C.J. referred is as follows:-

`Where, however, the amount of compensation is fixed by a voluntary agreement and not by an award, as is the case here, the party has no chance of interposing, and it must, I think, remain open to him to contend in answer to the claim for indemnity, not only that the injury to the workman was not caused by his fault, but also that the compensation is not paid under the Act if the amount is, in fact, greater than the amount permitted by the Act; and further, I think he may also say that although the amount of compensation fixed by the agreement. Is compensation paid under the Act - since the employer was liable and the amount is within the limits set by the Act - yet still it is not an amount which it was reasonable for the employer to agree to pay, having regard to the nature of the injury and the condition and circumstances of the workman. I think he would be entitled to ask the jury to say what would be a reasonable amount of compensation for the employer to have agreed to pay'

It seems to us that the only potential means by which this adjustment might occur, is through the use of section 85 of the Act. That section requires the Tribunal to `act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'

The meaning of this expression has been the subject of discussion in a number of cases. In the context of the Act, Legoe J. spoke of the expression at some length in Santos v. Saunders (1988) 49 S.A.S.R. 556 at 564. Whilst recognising that the meaning of the expression might depend upon the statutory context in which it appears, His Honour's discussion does not exclude the possibility, that in the context of the Act, it might afford sufficient flexibility to be able to adjust the amount recoverable in a case such as this. Whilst we accept that the right of a party to appeal the decision of a single member of the Tribunal on a decision on a question of law: section 86(1), curtails the scope of the provision: Qantas Airways Ltd v. Gubbins and Others (1992) 28 N.S.W.L.R. 26 at 30 per Gleeson CJ, Kirby P and Handley JA, we are of the opinion that the provision enables the adjustment of the amount of recovery in circumstances where notwithstanding the bona fides of the Corporation it is patently clear that it has paid more than it should have to a worker. In reaching this conclusion we are fortified by the approach taken by Olsson J. in H. G. Collett Pty. Ltd. v. Alsop and Alsop (1982) 49 S.A.I.R. 309 and by the Full Industrial Court in Aitco Pty. Ltd. Federated Liquor and Allied Industries Employees Union (S.A. Branch) Agreement 1985 (1988) 55 S.A.I.R. 184. In both cases the Industrial Court recognised that the `equity good conscience provision' could be relied upon in a money claim to produce a monetary result different to that produced by a strict application of the relevant award.

We therefore endorse the reduction made by the learned Deputy President, but we are not persuaded to make any further reduction. It is not enough to make an assertion that there has been an overpayment. Unless the overpayment is self evident, compelling evidence would have to be placed before the Tribunal, before it would entertain an application to moderate the award. We are not satisfied on the evidence that has been placed before us that any further reduction was warranted.

In relation to the issue of damages, the learned Deputy President assessed Ahern's entitlement to damages as against York as follows:-

His Honour noted that special damages had been agreed in the sum of $8,185 and therefore assessed a total amount of $267,427.

York argued that the learned Deputy President was wrong to have included in the assessment an amount for interest, because interest is only to be awarded to compensate a party who has been deprived of a sum of money that was due, and in this case, Ahern could not have complained that that was so in respect of his past economic loss, because of his receipt of weekly payments of income maintenance from the Corporation.

The decision of the High Court in Haines v. Bendall [1991] HCA 15; (1991) 172 C.L.R. 60, clearly supports that submission, but it does not follow that His Honour's decision needs correction. It was suggested by Mr. Walsh that an erroneous assessment might create issue estoppel, such that it should be corrected even if we were satisfied that the correct assessment was equal to or greater than the amount paid by the Corporation to Ahern pursuant to the Act. We disagree. It seems to be well settled that issue estoppel only applies to the same parties to an action and that it does not apply to proceedings concerning different parties even where those parties have some connection with the previous action: Marginson v. Blackburn Borough Council [1939] 1 All E.R. 273. Although the Corporation's action against York was based upon Ahern's right of action against York, the fact is that Ahern was not a party to those proceedings. It follows that neither he nor York are bound by the assessment in subsequent proceedings between them (if indeed they eventuate), save that the judgment obtained by the Corporation against York would have to be factored. Thus our only concern is whether the amount of the assessment in this case should have been less than the amount of the judgment.

At the time of his injury, Ahern was nearly 50 years old and at trial was nearly 55. He was found to have sustained a severe injury to his lumbar disc which has produced constant pain since it occurred, albeit that there has been some improvement. The learned Deputy President found that Ahern would never work again as a rigger, that he will have to constantly guard against lifting weights, bending and many other activities of every day life and that he has a serious disability. Against that background it was inevitable that there would be a substantial assessment for past and future non economic loss. On any view the assessments made by the learned Deputy President in relation thereto were conservative. We do not say that they were erroneous, but the award has to be looked at as a whole, such that even if there were merit in some of the complaints made by York about various heads of damage, provided the overall award up to the amount of the recovery is within range, it is immune from review. When one factors that Ahern was entitled to an award for past economic loss over a 5 year period, as well as an award for future economic loss and that he was entitled to an agreed amount of special damages exceeding $8,000, it becomes patently clear that Ahern's entitlement to damages as against York, would have exceeded the amount of the judgment, even accepting that certain aspects of the learned Deputy President's assessment may have been tainted by error. We therefore do not find it necessary to analyse the various heads of damages. We may have come to a different view on various aspects of the assessment. That is the nature of assessments of damages. But what we are convinced of is that His Honour's order does not require correction.

Finally we need to declare our reasons for declining York's application for a stay of the learned Deputy President's Judgment. During the course of argument the question was raised as to whether the Tribunal had the power to order a stay, given the absence of a specific provision of the Act, such as the former section 97(8). There is authority that suggests that an inferior court, even in the absence of an express statutory provision, may have in inherent power to order a stay in an appropriate case: Stevens v. Trewin and Van Den Broek [1968] Qd R 411 at 417. It is not however necessary in this case for us to express a concluded view about that because we were clearly of the opinion that even assuming that we had that power, this was not an appropriate case to exercise it.

The only reason advanced by York in support of its application for a stay was that there would be some delay before this matter could be heard and determined by the Full Bench and that given that both York and the Corporation were large and financially secure institutions, no detriment or advantage would be occasioned by the grant of a stay. In apparent support of that submission reference was made to the decision of Powerflex Services Pty. Ltd. v. Data Access Corporation (1996) 137 A.L.R. 498.

In our view those factors are insufficient to warrant the granting of a stay. To quote the decision of Mahoney J.A. in Re Middle Harbour Investments Ltd. (in liq) (unreported Court of Appeal (N.S.W.) 15 December 1976, relied upon by the Full Court of the Federal Court in the Powerflex case (supra):

`Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of a judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case on its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.'

(See also the principles set out in Alexander v. Cambridge Credit Corp. Ltd. (recs apptd) (1985) 2 N.S.W.L.R. 685).

A stay should not be granted just to suit the convenience of one of the parties. There has to be a proper basis to grant that relief and in this case we were simply not persuaded that that basis had been established. It was for that reason that we refused the application.

For these reasons we dismiss the appeal and confirm the order of the learned Deputy President.