Newcrest Mining Ltd v Thornton

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ.,Heydon J.,Crennan,Kiefel JJ.,Bell J.
• Judgment Date: 13 December 2012
• Neutral Citation: [2012] HCA 60,2012-1213 HCA B
• Docket Number: P59/2011
• Date: 13 December 2012

Newcrest Mining Limited

Appellant

and

Michael Emery Thornton

Respondent

[2012] HCA 60

French CJ, Heydon, Crennan, Kiefel and Bell JJ

P59/2011

HIGH COURT OF AUSTRALIA

Newcrest Mining Limited v Thornton

Negligence — Damages — Statutory limit on recoverability of damages — Section 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides that person bringing more than one action in respect of damage suffered as the result of a tort cannot recover more than ‘the amount of the damages awarded by the judgment first given’ — Settlement of claim against concurrent tortfeasor given effect by consent judgment — Subsequent claim brought against different concurrent tortfeasor — Whether statutory limitation on recoverability of damages applied to subsequent claim.

Words and phrases — ‘award’, ‘consent judgment’, ‘damages awarded by the judgment first given’.

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(1)(b).

Representation

B W Walker QC with P Kulevski for the appellant (instructed by DLA Piper Australia)

B L Nugawela with B W Ashdown for the respondent (instructed by Chapmans)

ORDER

Appeal dismissed with costs.

French CJ.

Introduction

1 A person who has suffered damage as the result of a tort or torts and brings separate actions against tortfeasors liable in respect of the damage cannot recover more than ‘the amount of the damages awarded by the judgment first given’. That is the substance of s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (‘the WA Act’). It is a limit upon the recoverability of damages 1 that has been part of the law of Western Australia since 1947. Similar provisions are found in New South Wales, Queensland and the Northern Territory 2. They were all modelled on s 6(1)(b) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK) (‘the 1935 UK Act’).

2 The question in this case is whether the limit applies when the ‘judgment first given’ is a consent judgment in proceedings in tort and/or contract where the proceedings have been commenced and the consent to judgment filed solely to give effect to an agreement to settle the claim. The answer in this case is no. The appeal by Newcrest Mining Ltd against the decision of the Court of Appeal of Western Australia which so found should be dismissed.

Statutory framework — the section

3 Section 7 of the WA Act provides:

• ‘(1) Subject to Part 1F of the Civil Liability Act 2002, where damage is suffered by any person as the result of a tort—

  • (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;

  • (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages

    shall not in the aggregate exceed the amount of the damages awarded by the judgment first given: and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable grounds for bringing the action;

  • (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought.’

Factual and procedural background

4 In February 2004 the respondent, who was employed as a rigger at the Telfer mine site in Western Australia, slipped in mud and injured his knee. He claimed workers' compensation payments and common law damages from his employer at the mine site, Simon Engineering (Australia) Pty Ltd (‘Simon Engineering’).

5 Eventually the respondent and Simon Engineering's insurer, Allianz Australia Insurance Ltd (‘Allianz’) agreed to settle his claims. The terms of the settlement, set out in a letter dated 17 May 2007 from the solicitors for Allianz to the respondent's solicitor, included the following:

‘2. By consent between the parties, judgment for [the respondent] against [Simon Engineering] in the sum of $250,000.00, in addition to all payments that have been made to date pursuant to the Workers' Compensation and Injury Management Act 1981 …

3. [Allianz] will make a contribution towards [the respondent's] legal costs in the sum of $10,000.00 and will pay the disbursements in the sum of $1,804.00.

4. Settlement is to be effected by way of Consent to Judgment filed and sealed at the District Court.’

Enclosed with the letter was a writ of summons to be issued out of the District Court of Western Australia and a form of consent to judgment in the proceedings which were to be commenced by that writ. The terms of settlement contained no admission of liability in respect of any cause of action.

6 The writ was issued out of the District Court in the name of the respondent as plaintiff against Simon Engineering as defendant. The indorsement of claim on the writ stated:

‘The Plaintiff claims against the Defendant damages in respect of all personal injuries suffered by him arising out of or in the course of his employment with the Defendant on or around 16 February 2004 and in respect of all subsequent aggravations and/or recurrences of whatsoever nature, which injuries, aggravations and/or recurrences were caused by the negligence and/or breach of statutory duty and/or breach of contract of the Defendant.’

No statement of claim was filed.

7 Contemporaneously with the issue of the writ, the consent to judgment was filed in the proceedings which it commenced. The consent to judgment was in the following terms:

‘WE THE PARTIES to this action consent to judgment being entered for the Plaintiff against the Defendant for the sum of $250,000.00, exclusive of weekly payments made to date pursuant to the Workers' Compensation & Injury Management Act 1981, plus legal costs in the sum of $11,804.00 inclusive of disbursements.’

It was signed by the solicitors for the respondent and for Simon Engineering. Simon Engineering at that time was subject to a Deed of Company Arrangement.

8 The consent to judgment was subsequently endorsed with a statement signed by the Registrar of the District Court:

‘Order that judgment be entered accordingly’,

followed by the words:

‘JUDGMENT

Dated the 31 day of May 2007.

Pursuant to the aforesaid order of the Registrar IT IS THIS DAY ADJUDGED that judgment being entered for the Plaintiff against the Defendant for the sum of $250,000.00 exclusive of weekly payments made to date pursuant to the Workers' Compensation & Injury Management Act 1981, plus legal costs in the sum of $11,804.00 inclusive of disbursements.’

9 On 23 June 2008, the respondent issued a writ against the appellant and others in respect of his injuries arising out of the same incident in respect of which he had sued Simon Engineering. The appellant had been operating the Telfer mine site. In a statement of claim filed with the writ, the respondent alleged that the appellant was negligent for failure, inter alia, to provide a safe work place and was in breach of a statutory duty said to be owed pursuant to s 9(1) of the Mines Safety and Inspection Act 1994 (WA). As is apparent, the appellant was sued as a ‘several concurrent tortfeasor’ 3 with Simon Engineering albeit Simon Engineering was also sued in tort and/or contract. The appellant's alleged liability arose out of a cause of action distinct from those which the respondent had asserted against Simon Engineering. The particulars of damages claimed against the appellant and the other defendants in the proceedings amounted to $1,989,746.00. A credit was given for the settlement monies received from Simon Engineering leaving a total outstanding claim of $1,739,746.00. The particulars were filed on 31 March 2009.

10 On 11 May 2009, the appellant filed a chamber summons for summary judgment. The appellant invoked s 7(1)(b) of the WA Act. In a supporting affidavit sworn by its solicitor, the appellant referred to the consent judgment entered on 31 May 2007 against Simon Engineering and the satisfaction of that judgment by Simon Engineering's insurer. On 25 August 2009, a Deputy Registrar of the District Court ordered that the respondent's action against the appellant be dismissed with costs.

11 The respondent appealed to a judge of the District Court (Mazza DCJ) who ordered that the appeal from the Deputy Registrar's decision be dismissed with costs. The respondent then appealed to the Court of Appeal of Western Australia. That Court allowed the appeal, quashed the order of the District Court dismissing the appeal from the decision of the Deputy Registrar, and dismissed the appellant's application for summary judgment in the District Court. The appellant was ordered to pay the respondent's costs of the summary judgment application, the appeal to the District Court and the appeal to the Court of Appeal.

12 On 9 December 2011 this Court (Crennan and Kiefel JJ) granted special leave to the appellant to appeal from the judgment of the Court of Appeal.

The decision of the Court of Appeal

13 Two months after Mazza DCJ delivered his judgment in the District Court dismissing the respondent's appeal from the decision of the Deputy Registrar 4,

the Court of Appeal of New South Wales delivered judgment in Nau v Kemp & Associates Pty Ltd5. The Court...