Contribution & “just and equitable”

Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345

Negligence – joint tortfeasors – worker injured while unloading goods from truck which been loaded by RFI – worker alleged RFI loaded truck incorrectly and unsafely – RFI denied negligence and alleged worker negligently contributed to his own loss – RFI cross-claimed against worker’s employer alleging it failed to provide safe workplace or to instruct worker in proper methods of unloading truck – primary judge held RFI’s failure to provide restraining brace to prevent fall of goods breached duty to load truck properly – employer also breached duty by failing to formulate adequate system and instructions – responsibility apportioned 50% to RFI and 50% to employer – no contributory negligence – finding of negligence by RFI not challenged – held: finding of negligence by employer was correctly made but primary judge’s equal apportionment plainly unreasonable – appropriate apportionment was 75% to RFI and 25% to employer – no error in finding no contributory negligence or contribution in respect of costs – appeal allowed in part – cross-appeal dismissed.

Meagher, Barrett & Emmett JJA

41Because, on the view I consider to be correct, the findings of negligence by both RFI and Allied were justified, it is necessary to address the matter of contribution between tortfeasors under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 and the question of what is “just and equitable” having regard to the respective degrees of “responsibility” for the damage suffered by Mr Grima. The court’s task, in that respect, is that identified in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494, a case involving apportionment for contributory negligence. The High Court (Gibbs CJ, Mason J, Wilson J, Brennan J and Deane J) there said:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

42The limitations on appellate intervention indicated by House v The King [1936] HCA 40; 55 CLR 499 at 504-5 operate here. Because the judge entrusted with the task of assessing relative degrees of responsibility has a wide discretion, it has been said that “cases will be rare in which the apportionment made can be successfully challenged”: Pennington v Norris [1956] HCA 26; 96 CLR 10 at 16.

43As has been noted, the primary judge held that they were equally at fault. This was because he found any other apportionment impossible. His Honour’s statement at [143] of his reasons is set out at [6] above.

44Particularly influential in the assessment of degrees of responsibility, in my view, is the evidence of Mr Di Pietro. He was, at the relevant time, the sole director of RFI. He gave evidence that it was uneconomic to send partly laden vehicles to Sydney. If there was not enough stock, departure would be delayed for a day or two until a full load was assembled. That meant that there was a need to install five bars on every occasion. On all but “the very odd occasion” there were horizontal rolls on top and therefore a need for five bars. He said that “99.9 per cent of times that would be the case”.

45Mr Di Pietro confirmed that the fifth bar secured rolls placed horizontally on top but added that it would “probably” be installed even if the load did not include such rolls “just to put it somewhere”. Mr Di Pietro said that if a truck left RFI’s premises with only the first, second and third bars in place, that would “represent a complete failure of the practice”. The judge interpreted this answer as referring to a complete failure of “proper practice”. His Honour’s interpretation is warranted by the evidence.

46Also of particular importance is the evidence of Mr Sulke, the manager at RFI’s premises who supervised the loading of vehicles. It was his job to make sure that the trucks were loaded properly. Although his evidence concentrated mainly on standard procedures, he did have some recollection of the particular consignment. Pertinent evidence in Mr Sulke’s witness statement was that:

(a) if five bars were supplied as part of a vehicle, RFI “always” attached five;

(b) he had, however, seen a truck equipped with five bars leave the premises with only four in place but when that occurred, it was one of the middle bars that was left off;

(c) he had never seen a truck leave with only three bars attached;

(d) his recollection was that there were four bars on the truck in question.

47The evidence shows clearly that it was RFI’s practice to assemble a full load for each departing vehicle including, in virtually all cases, rolls laid horizontally on top; also that the relevant RFI personnel were fully attuned to the need to install the bars to restrain the load, including the fifth or top bar. Despite Mr Sulke’s suggestion that four bars were installed in the vehicle in question, the evidence showed conclusively that there were only three, the topmost and second from the top being absent (the judge noted that some suggestion of interference with bars during transit had not been pursued).

48RFI can thus be seen to have been responsible for a very significant departure from standard and safe practice – one that Mr Di Pietro regarded as “a complete failure” of “proper practice”.

49RFI must be taken to have been aware that persons meeting and dealing with a vehicle upon its arrival would not only pay attention to but also draw conclusions from the presence and positioning of the bars. RFI’s personnel were aware of the particular function of the fifth bar in restraining horizontal rolls apt to move backwards and forwards with the motion of the vehicle.

50Allied’s personnel, in the same way, were aware of the function of the fifth bar in relation to horizontal rolls – so much so that, as the evidence of both Mr Grima and Mr Tai-Rakena shows, they took the absence of a fifth bar as an indication that there were no horizontal rolls on board.

51It was not unreasonable for Allied employees to proceed on that footing. But, as the evidence of Mr Grima made clear, they did not rely solely on the positioning of the bars. In accordance with what he understood to be the requirements of his employer, he and Mr Tai-Rakena opened the doors only slightly in the first instance. Any unrestrained rolls lying on top that were resting against the doors and likely to fall if the doors were opened fully would be visible at that point. Allied’s system of visual inspection through the partly opened doors was apt and sufficient to deal with that risk. It was not, however, apt and sufficient to deal with the risk that in fact materialised, that is, that unrestrained horizontal rolls that were not resting against the doors or flush with the outer edges of the vertical rolls (and which were therefore not visible from immediately below) might fall when the doors were fully opened. But, of course, horizontal rolls that were not flush with (or, at least, very close to) the outer edges of the vertical rolls must have presented a smaller risk of falling than those that were in such a position.

52Having regard to the whole of the conduct of each negligent party in relation to the circumstances of the accident and comparing both the degrees of departure from the standard of reasonable care and the relative importance of the parties’ acts, I am of the opinion that the primary judge’s equal apportionment was plainly unreasonable in the sense referred to in House v The King (above).

53RFI’s departure from the standard of care of a reasonable man was of a much higher degree than that of Allied; and RFI’s act of allowing horizontal rolls to be unrestrained by the fifth bar was of significantly greater importance in causing the damage than was Allied’s conduct of requiring inspection only from ground level before the doors were fully opened. Storemen opening the doors of vehicles of the relevant type were entitled to expect that all proper restraints indicated by the nature of the load would be in place. And Allied, in providing a safe system of work, was entitled to expect that RFI would take care to put such restraints in place and that the risk that in fact materialised would be a remote risk. The culpability of RFI and the causal potency of its conduct were of a significantly higher order than those of Allied.

54It was RFI that created the risk of harm by loading the vehicle as it did. In addition, the methodology it used meant that there was a serious but unascertainable risk to anyone who took the generally prudent course of opening the doors at first only slightly to check the items likely to fall out when the doors were fully opened. RFI effectively created a hidden danger that was masked by the creation of the false sense of security engendered by the absence of the fifth bar.

55In my judgment, the appropriate apportionment is 75 per cent to RFI and 25 per cent to Allied.


David Cormack – Brisbane Barrister & Mediator

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