New South Wales Court of Appeal CITATION : State Rail Authority of New South Wales v Barnes [2001] NSWCA 133 FILE NUMBER(S) : CA 40118/00 HEARING DATE(S) : 02/05/01 JUDGMENT DATE : 9 May 2001 PARTIES : State Rail Authority of New South Wales v Grant Ashley Barnes JUDGMENT OF : Heydon JA at 59; Davies AJA at 60; Rolfe AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 57/98 (Bathurst) FILE NUMBER(S) : LOWER COURT His Honour Judge Delaney JUDICIAL OFFICER : COUNSEL : Appellant - J.D. Hislop QC / M. Cahill Respondent - P. Capelin QC / J.T. Kearney SOLICITORS : Appellant - Roger Michael Betts, C/- Dexter Healey Respondent - McIntosh MvPhillamy & Company CATCHWORDS : Respondent employed by a sub-contractor under an agreement with appellant - respondent injured when working for sub-contractor on appellant's premises - contributory negligence - Workers Compensation Act contributions s151Z LEGISLATION CITED : Factories, Shops and Industries Act 1962 Workers' Compensation Act 1987 Australian Iron & Steel Pty Limited v Luna (1968) 123 CLR 305 James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425 CASES CITED: Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Sungravure Pty Limited v Meani (1964) 110 CLR 24 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40118/00 DC (Bathurst) 57/98 HEYDON JA DAVIES AJA ROLFE AJA Wednesday, 9 May 2001 STATE RAIL AUTHORITY OF NEW SOUTH WALES v BARNES JUDGMENT ROLFE AJA: Introduction. 1 The plaintiff/respondent, ("the respondent"), Mr Grant Ashley Barnes, for whom Mr P.R. Capelin of Queen's Counsel and Mr J.T. Kearney of Counsel appeared, worked as a glazier for Bathurst Glass Service Pty Limited, ("Bathurst Glass"), at all material times. On 26 July 1995, in the course of his employment, he injured his right knee. 2 Before July 1995, Bathurst Glass had entered into a contract with the defendant/appellant, State Rail Authority of NSW, ("the appellant"), for which Mr J.D. Hislop of Queen's Counsel and Mr M.P. Cahill of Counsel appeared, which was the occupier of the State Rail Yards at Bathurst, for the restoration of railway carriages in those Yards. This involved, inter alia, the replacement of windows. The respondent, under the general supervision of another employee of Bathurst Glass, Mr Naylor, engaged in glazing work on carriages for about twenty days before the accident. This necessitated his entering and leaving carriages through doors, which were unlocked by the appellant's personnel so that he and Mr Naylor could use them. As the carriages were not on rails adjacent to any form of platform, the method of entering and leaving them was by a ladder, which was built into the carriage at the doorway and formed part of it. 3 On 26 July 1995, the respondent was replacing windows in a carriage. At about 1.30 pm he finished working on the inside of a window. He then had to attend to the outside, which required him to leave the carriage with various equipment through the unlocked door. He did this by jumping from the carriage to the area below, which comprised a surface of sloping blue metal basalt. It provided a somewhat insecure foothold, a situation aggravated by light rain, which made the surface a little slippery. He jumped because, he asserted, there was no ladder at the unlocked door. In landing on this surface the respondent slipped and suffered the injuries of which he complained. 4 The respondent sued the appellant for damages before his Honour, Judge Delaney, in the District Court at Bathurst alleging that his injuries had been caused by negligence and breaches of statutory duties. Breach of s 40(1) of the Factories, Shops and Industries Act 1962, (as amended) was the only breach of statutory duty relied on at the hearing. The essential allegations of negligence and breach of statutory duty were that the appellant had failed to provide a ladder thus requiring the respondent to jump from the carriage onto an inherently unsafe surface. 5 It was not in issue that prior to commencing the proceedings, the respondent received workers compensation benefits by way of the payment of lump sums, out-of-pocket expenses and weekly compensation amounting to $185,126.52. 6 By its Amended Notice of Grounds of Defence, the appellant put in issue the substantive allegations and alleged that the respondent had been guilty of contributory negligence in failing to keep a proper lookout; in failing to exercise proper care and attention for his own safety when he jumped from the carriage with an armful of rubber; and in failing to act responsibly in the course of his duties as an employee of an independent contractor of the appellant. 7 His Honour found a verdict for the respondent for $453,062.17; noted that $185,126.52 had been paid to him pursuant to the Workers' Compensation Act 1987; accordingly entered judgment in the sum of $267,935.65; and ordered the appellant to pay the respondent's costs. In reaching these figures his Honour assessed common law damages at $466,631.98, and damages conformably with the Workers Compensation Act at $407,693.98. The computation of these figures was not challenged on appeal. The appellant alleged that, as a matter of law, the latter figure should have been nil. The Issues Raised on Appeal . 8 The appellant challenged his Honour's findings that it was negligent and that the respondent's injuries were caused by its negligence; that there had been a breach by it of s 40(1); and that the respondent was not guilty of contributory negligence, but rather of "momentary inattention". The appellant further asserted that the apportionment of 25% of liability to Bathurst Glass was manifestly inadequate, and that in applying s 151Z of the Workers' Compensation Act 1987 his Honour failed to have regard to the effect of the respondent's election under s 151A of that Act. It also complained that it had not been accorded procedural fairness as his Honour stopped Mr Cahill in his address in reply on the issue of contributory negligence, indicating there must be a reduction by virtue of contributory negligence and did not thereafter inform him that he had changed his opinion and give him the opportunity to further address on the issue. 9 The respondent's Notice of Contention asserted that notwithstanding the appellant's challenge on the grounds of the misapplication of s 40(1) of the Factories, Shops & Industries Act 1962, the judgment could be affirmed on the ground that the appellant was, as a separate finding, held liable to the respondent in negligence "in accordance with ordinary principle and without reliance on breach of statutory duty". The Judgment Below . 10 His Honour accepted the respondent to be "in every way straightforward, frank and truthful". He said he was truthful "to a fault" and that he had not the slightest hesitation in accepting totally his evidence in all respects. He also accepted Mr Naylor's evidence, which substantially corroborated the respondent's. 11 His Honour next dealt with the refurbishment of the carriages, and noted the allegation that the Rail Yards were a factory within the meaning of the Factories, Shops & Industries Act, and that the appellant had breached s 40(1) by failing to provide safe means of access from the carriage in which he was working to the ground, in failing to provide, "in its general duty", a method of alighting whilst materials were being carried, and by locating the carriage in a position where if the respondent tried to alight he would be landing upon sloping surfaces of blue metal. 12 His Honour referred to various other allegations and to the nature of the work involved. 13 He found that on 26 July 1995 the respondent was working on a carriage, which did not have at the door which was open for him to use a ladder affixed to the carriage or otherwise available. As a result, when the appellant was alighting he jumped on to the sloping blue metal and suffered the injuries of which he complained. 14 His Honour referred to the evidence that the respondent re-entered the carriage without the assistance of a ladder after he had jumped down and been injured, which was not in issue, although the way in which he had done so was, and he found that having re-entered the carriage he continued to work. He noted that that led to a significant issue at the trial, namely when the accident had occurred. He dealt with various evidence on this point and was satisfied that it occurred on 26 July 1995, as the respondent alleged. 15 His Honour turned to the appellant's submissions. He said that its counsel conceded that it was the occupier of the railway yards; that there was a contract between Bathurst Glass and the appellant to replace the glazing in a number of railway carriages then being renovated, which were in those yards; and that the respondent and Mr Naylor attended to that work pursuant to such contract. 16 His Honour continued:- "He" (counsel for the appellant) "noted that the work was done in various parts of the railway yards which included the main workshop, the paint workshop and the railway line close by the apron of the paint workshop. This concession was important because, although the evidence disclosed it quite clearly, that the carriages could have been, if the defendant had positioned them there, at all times being at a place where the ground on which the rails rested was flat and level and not sloping on moveable metal as was the situation on the day of the accident." 17 He noted the submission that the respondent's version of events should not be accepted, which he rejected, and that as Bathurst Glass owed the respondent a non-delegable duty of care, which extended to the provision of a safe system of work, liability should be apportioned as to 70% to Bathurst Glass and 30% to the appellant. He was of the view that the proper apportionment was 25% to Bathurst Glass and 75% to the appellant. 18 His Honour then turned to the respondent's submissions. He was satisfied that someone from the appellant had opened the carriage door and provided access and that, on the date the accident occurred, the appellant failed to provide safe access by providing a ladder and by not placing the carriage above a safe surface, such that it breached its duty of case as an occupier of premises. He also found that there was a breach of the duty of care owed by the occupier to an entrant to take reasonable care for his safety. It is clear, from reading the evidence and the submissions before his Honour that the appellant's principal case at trial was that the accident did not happen on the date the respondent asserted, and that there was, contrary to the evidence of the respondent and Mr Naylor, a ladder in position at the relevant doorway. 19 In relation to contributory negligence, his Honour noted that he had raised with Mr Capelin whether, in the circumstances, there should be a finding of such negligence and the submissions in reply. He concluded that the respondent's action was "merely a momentary inattention to the detail of his exit"; and, accordingly, he was satisfied that there had been no contributory negligence. 20 Nextly, he returned to the question of s 40(1). He recorded the appellant's submission that this section was not applicable because the respondent's evidence and that of Mr Naylor indicated that the respondent was operating within the confines of his place of work, performing one set of operations which required work to be done both inside and outside the carriage. He expressed the view that he did not agree "with this restrictive view of the operation of the section". 21 He said that the evidence was that the whole of the railway yards were able to be enclosed, and he found them to be the respondent's place of work, so that he was satisfied that s 40(1) did apply. 22 Nextly, his Honour dealt with the apportionment between the appellant and Bathurst Glass. He found that the latter had no real control over where the carriage was placed nor whether it was provided with a ladder, and that as those two failures were the substantial cause of the injury, blame should be apportioned in the percentages to which I have referred. 23 This led his Honour to a consideration of s 151Z(2), with which it will be necessary to deal in due course. 24 His Honour dealt at length with the question of damages, to which it is unnecessary to refer in deciding the issues raised by the appeal. The Grounds of Appeal . 25 The appellant attacked the finding that the accident occurred as the respondent alleged, such that it was negligent. It pointed to the fact that the respondent stated initially that he had observed a Mr Thomas, who was employed by the appellant, unlock the door on the morning of the accident and that he was "absolutely certain" that Mr Thomas was there, from which evidence he recanted when it became apparent Mr Thomas was absent on leave. Nextly, it was submitted that it would have been physically impossible for a person to unlock the door standing at track level, and that if the door was open and assuming it had no ladder, it followed that another door at which a ladder was attached was unlocked. It was submitted that it was inherently improbable that a person unlocking a door would not have observed the absence of a ladder, and that having done so would have unlocked another door at which there was a ladder, and that if the respondent or Mr Naylor had been present they would not have requested another door be unlocked. The appellant also pointed to the evidence that on a number of occasions the respondent and Mr Naylor had entered and left the carriage during the morning by jumping down, and that it was inherently improbable that they would have done so in the absence of a ladder and not checked if another door in the carriage under which a ladder was fitted was unlocked or requested that that be done. It was submitted that the respondent and Mr Naylor gave evidence which was inconsistent and improbable as to events immediately following the fall; that the problem had not been encountered previously; and that the instance was not reported to the appellant. Alternatively it was submitted that if the ladder was absent that was obvious to the respondent and, in those circumstances, no liability should have attached to the appellant. The absence could have been addressed by the respondent and/or Mr Naylor requesting the appellant to unlock another door after first checking that another was not already unlocked, and that the cause of the injury:- "... was the failure of the respondent to take the simple measure of checking whether another door in the carriage was unlocked or requesting the appellant to unlock another door. He had ample time prior to his injury to make such a check or request or to ask Mr Naylor to do so. Even an employer is not required to treat a workman as an imbecile child." 26 In reply the respondent relied upon his Honour's acceptance of the respondent's evidence as corroborated by Mr Naylor, and referred to the concession that the carriage could have been positioned where it was surrounded by level ground. At trial, Mr Cahill conceded that if the respondent's evidence that no ladder was in position was accepted, the appellant would be liable to the respondent under general common law principles. On the hearing of the appeal, Mr Hislop sought to withdraw this concession. Mr Capelin, who appeared at trial, with typical frankness, conceded that no prejudice would be occasioned by the withdrawal of the concession, it having been made after the evidence had closed and submissions had been prepared in ignorance that it would be made. 27 Mr Capelin relied heavily, naturally enough, on the trial Judge's findings based on his assessment of the credibility of the witnesses, and on the fact that it was never put to the respondent in cross-examination that a ladder was attached to the carriage at the relevant door and that Mr Naylor "flatly" rejected that that was the position. I have some doubt that this was not put to the respondent: BB pp 58-59. In my opinion, it was and the respondent rejected the suggestion. Finally, on this aspect, Mr Capelin relied upon the appellant's failure to call any evidence to prove that the steps or a ladder were present, save for some evidence that missing ladders had not been reported to the acting foreman and the production of a number of documents, although Mr Thomas agreed in cross-examination that they were a very unreliable assessment of the condition of the carriages. In relation to records it was noted that there were further documents which were not produced relative to the carriage, apparently because of administrative problems. It may not be possible to draw any inference from the non-production of the documents, and I do not. However, the position was that the appellant failed to call any evidence that there was a ladder in place. 28 In my opinion, the respondent did not have to rely on any concession. His case on negligence was that there was no ladder. His and Mr Naylor's evidence, which was led to establish this, was accepted without qualification. There was no evidence which contradicted it as opposed to certain submissions seeking to show it was improbable. Once the respondent's evidence was accepted as truthful on this point there is no basis for interfering with his Honour's finding that there was no ladder in position. Even without this concession the absence of the ladder clearly established negligence on the appellant's part. Its officers should have unlocked a door under which there was a ladder or provided proper means of access if there was not one. His Honour's finding of negligence must stand. Contributory Negligence . 29 In par 12 of the written submissions, the appellant relied on a number of matters said to give rise to contributory negligence. I have set out those pleaded. They did not, in my opinion, cover the matters now raised in par 12, which asserted that the respondent knew the surface was uneven and would shift; knew the distance he proposed to jump was about two metres; knew that other steps could be taken to get the equipment down; made no complaint about the absence of the ladder to Mr Naylor or the appellant's officers; did not check whether other doors which had ladders were unlocked; and made no request to the appellant, Mr Naylor or Bathurst Glass to unlock another door or provide a ladder. 30 Whilst all these matters were put to the respondent, the critical question was whether the appellant established that the respondent's jumping down, in all the circumstances, constituted a failure on his part to take reasonable care for his own safety, the onus, of course, being on the appellant on this issue. The circumstances included that he had to leave the carriage to continue with his work; that there was no ladder he could use and that there were time pressures to get the work done. It is always a question of fact whether conduct amounts to contributory negligence or momentary inadvertence. As Windeyer J said in Sungravure Pty Limited v Meani (1964) 110 CLR 24 at p 37:- "Whether a person was negligent in that sense must be determined in the light of all the circumstances. When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstances, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's pre-occupation with the matter in hand, and other prevailing circumstances. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, exercisable in the circumstances because not incompatible with the conduct of a prudent and reasonable man." 31 The appellant relied firstly on the fact that the respondent's decision to jump was deliberate. An act of momentary inattention does not mean that it is not deliberate. In this context the word "deliberate" means that the act was done in a voluntary manner. The question of fact is whether it was excusable in the circumstances. I have referred to a number of the circumstances to which I would add that the act of leaving the carriage was ancillary to the principal task in which he was involved, namely the reglazing of the windows. When due regard is had to all the circumstances in the situation in which the respondent was working, I am satisfied that it was open to his Honour to find that the act was one of momentary inattention. The fact that the respondent knew for some time that there was no ladder there merely supports that finding. 32 It is also relevant, in my opinion, that the respondent was not cross-examined to seek to show that his action, on this occasion, was imprudent and could lead to injury. He, therefore, did not have the opportunity to answer such propositions, which he may have done in a way the trial Judge found satisfactory. This approach is consistent with the way in which Mr Capelin understood the case had been put at an evidentiary level. At BB p 173, he submitted that contributory negligence was "never strongly put to the plaintiff if it was put at all", and he instanced some questions which may have been asked of him. 33 The appellant relied nextly on a failure by his Honour to accord it procedural fairness, because he stated that he was on the "appellant's side on contributory negligence as a result of which appellant's counsel did not further address on" that issue. What in fact his Honour said, BB p 177, was:- "I'm at this stage on your side, on contributory negligence." (My emphasis.) 34 There is no suggestion that this was put in a way calculated to cause Mr Cahill to put no other submissions on this issue lest at some other stage his Honour came to a different view. 35 Mr Capelin had put, BB p 174 that the appropriate characterisation of what the respondent had done was "inattention or inadvertence" not amounting to negligence. 36 After his Honour stated his preliminary view of contributory negligence, Mr Cahill asked if he wished him to address further on s 40. There was, of course, a link between the two, because if his Honour was satisfied that there was a breach of s 40, contributory negligence would not operate. His Honour replied "No". None-the-less, Mr Cahill, quite properly, "despite that" did make a further submission on s 40, and then asked whether there were specific matters on which he could assist on contributory negligence. 37 Mr Hislop submitted that had Mr Cahill been aware that his Honour would change his view on contributory negligence he would have addressed further on momentary inattention and other aspects of that issue. 38 Mr Capelin submitted that the remark was made during the appellant's reply, the appellant's counsel having addressed first with a right of reply. Accordingly, counsel for the appellant had every opportunity, during his submissions in chief, to address on contributory negligence and, in written submissions, had done so. He had submitted that any damages should be subject to a significant discount with respect to contributory negligence on the basis that the appellant was well aware of the distance from the carriage floor to the ballast below; the nature of the ballast; the prevailing weather conditions; and the inherent weakness of his knee. Whilst these submissions did not fit easily with those pleaded, they nonetheless showed that the question of contributory negligence had been addressed and there is no statement in the written submissions as to what additional submissions would have been made on this issue, conformably with the pleadings, but for his Honour's remark. I have noted Mr Hislop's oral submissions. 39 In my opinion, there was no failure to accord procedural fairness. Both sides had made submissions. The issue was whether there was contributory negligence or momentary inadvertence and involved the trial Judge's final determination of how he characterised the respondent's conduct. His remark to Mr Cahill was nothing more than a preliminary remark, indicating his view "at this stage". Mr Cahill was not deterred by a more definite remark by his Honour, in relation to s 40, from making a further submission on it and he returned to contributory negligence. The factual and legal issues were thus fully addressed. 40 Mr Hislop suggested that this Court may consider the question of contributory negligence in the light of his further submissions. Notwithstanding his careful further submissions I am not satisfied that his Honour was in error in declining to find contributory negligence. The Apportionment of Fault to Bathurst Glass . 41 The appellant submitted that it was necessary for his Honour to determine the proportion of fault attributable to Bathurst Glass to calculate the respondent's damages: s 151Z(2). It submitted that Bathurst Glass was at fault in that it breached its personal non-delegable duty as employer, and because of its vicarious liability for the acts and omissions of its leading hand, Mr Naylor. It was submitted that apportionment involved a comparison both of culpability, by which was meant 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 such that the whole conduct of each negligent party in relation to the circumstances of the accident must be the subject of comparative examination: James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425. Apportionment is based on s 5(1) and (2) of the Law Reform (Miscellaneous Provisions) Act 1946, the latter subsection providing that the amount of contribution recoverable:- "shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage ..." 42 In James Hardie, Sheller JA at p 446 said that in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, the High Court had held that the making of an apportionment in a contributory negligence situation involved a comparison 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. His Honour noted that in Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 the High Court had reaffirmed these principles including that it is "the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination". Shortly after his Honour referred to the "causal potency" of the activities of the parties. 43 In the light of those principles one asks how, on the facts of this case, the apportionment should be made. His Honour relied on the failure to provide steps and placing the carriage above shifting and slippery ballast. There cannot, in my opinion, be the slightest doubt that each of these acts or omissions, either taken alone or in aggregate, contributed substantially to the injuries sustained by the respondent. To suggest, as the appellant did, that its contribution should only be 30% is, if I may say so with respect, fanciful. It was far more than 50% and the percentage at which his Honour arrived was not, in my view, beyond the realm of the proper exercise of judicial discretion. The Claim under s 40(1) of the Factories Shops & Industries Act 1962 . 44 Section 40(1) of the Factories Shops & Industries Act 1962 provides:- "There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work." 45 In each case it must be decided, as a question of fact, whether the worker's movement is in the course of carrying out one job, or is in the course of moving from one job to another: Australian Iron & Steel Pty Limited v Luna (1968) 123 CLR 305. The area is difficult and fine distinctions can be drawn. In the present case Mr Capelin agreed that a finding that there was no contributory negligence would make it unnecessary to decide the point. In these circumstances, I do not consider it appropriate to do so. The Calculation of Damages . 46 The appellant conceded that damages were to be assessed conformably with s 151Z(2) of the Workers Compensation Act 1987. As I have recorded, his Honour assessed common law damages at $466,631.98 and damages conformably with the Act at $407,693.98. Nor was it in issue that the respondent had received workers compensation payments of $185,126.52. It was not disputed by Mr Capelin, as I understood it, that the receipt of that compensation constituted an election pursuant to s 151A(3), which precluded the respondent from suing Bathurst Glass for common law damages. 47 Section 151Z deals with financial recovery from both the employer and a stranger. Sub-section (1) makes detailed provision for the adjustment of financial rights between the worker, the employer and the stranger in such circumstances. The starting point is that the worker, who recovers both damages and compensation, is not entitled to retain both. If the worker recovers compensation firstly and then damages, as occurred in this case, he is obliged to repay the compensation from the damages and is not entitled to any further compensation. If the worker receives damages firstly he is not entitled to recover compensation, and provision is made for indemnifying the employer against workers compensation payments from any damages recovered. It is clear that for the purposes of these adjustments it matters not whether damages or compensation are recovered first. The section accommodates both positions. 48 Sub-section (2), in so far as it is relevant, provides:- "(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, ..... (4) If a worker is liable under subsection (1)(b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement." 49 Mr Hislop did not dispute that the conditions precedent in sub-section (2)(a) and (b) had been met. Thus he did not dispute that the respondent for the purposes of the application of sub-section (2)(b) "is entitled to take proceedings ... from that employer". His submission was that having made the election under s 151A, the result of his taking any such proceedings would be that he could not recover any damages. Therefore, the submission ran, the damages to be assessed in accordance with sub-section (d) were nil and, accordingly "the amount of contribution recoverable" pursuant to sub-section (c) was nil. 50 The contrary submission was that for the purpose of calculating the damages in sub-section (c), the Court is obliged to make a notional calculation of damages under sub-section (d), "as if the whole of the damages were assessed in accordance with Division 3", as his Honour did, and use that figure in lieu of the actual damages to which the worker would have been entitled. In my opinion, that submission is correct. 51 Sub-section (c) is concerned with a further reduction in the damages. 52 The difference between the parties can be illustrated thus. The award of common law damages was $466,631.98. But for the operation of the Workers Compensation Act, the appellant would have been entitled to recover 25% of this amount, ie $116,657.90, from Bathurst Glass, thus reducing its liability to $349,974.08. His Honour reduced the amount of damages he calculated under the Act, ($407,683.98), by 25%, ie by $101,920.90. It was not submitted that he should not have done this. He deducted this amount, ($101,920.90), from $116,657.90 giving a difference of $14,737. He deducted that figure from $466,631.98 which gave $451.894.98 from which he deducted the workers compensation payments. The figure of $451,894.98 was subsequently adjusted to $453,062.17 because further payments were made. That was uncontroversial and it was from that figure that $185,126.52 was deducted giving the judgment sum of $267,935.65. 53 Mr Hislop's submission was that as the respondent could not have recovered any damages from Bathurst Glass because of the election, his Honour should have made no deduction from $116,657.90 and that that amount should have been deducted from $466,631.98 giving $349,974.08 from which the workers compensation payments should have been deducted to arrive at a judgment figure of $164,847.56. Mr Capelin submitted that his Honour had approached the matter properly and, as I have indicated, I agree with that submission. 54 The starting point is Mr Hislop's concession that the conditions required by sub-section (2)(a) and (b) had been met. His submission was that whilst the respondent was entitled to take proceedings against Bathurst Glass the amount of damages would have been nil because of his election. It was not argued that because that was the amount of damages proceedings could not be taken and hence no challenge was made to this Court's decision in Grljak v Trivan Pty Limited (1994) 35 NSWLR 82. Once those conditions were met sub-sections (c) and (d), relevantly for present purposes, operated. 55 Sub-section (c) provides for a reduction in the damages the respondent may recover from the appellant by "the amount". The amount requires the ascertainment of two figures and the deduction of one from the other. The first figure is the contribution which the appellant is entitled to recover from Bathurst Glass as a joint tortfeasor, ie $116,657.90. The second figure is the amount of the contribution recoverable. 56 Sub-section (d) prescribes that the amount of the contribution recoverable from Bathurst Glass as a joint tortfeasor "or otherwise" is to be determined notionally "as if the whole of the damages were assessed in accordance with the provisions of Division 3 as to the award of damages". Of course, there may be cases where no such damages can be assessed because the requirements of the Act entitling an injured employee to damages have not been met. But it was conceded that that is not this case. Accordingly, his Honour made the notional assessment and thus, conformably with the Act, he reduced the amount of damages by deducting the second amount referred to in sub-section (c) from the first with the consequences to which I have referred. 57 In my opinion, Mr Hislop's submissions are inconsistent with the words of s 151Z(2) and with the provisions in s 151Z(1), which make clear that it matters not, at least for the purposes of the relevant sections, whether compensation or damages are recovered first. This makes the more explicable the finding of a notional figure under sub-section (d) to make the financial adjustment required by sub-section (c). Conclusions . 58 The orders I propose are that the appeal be dismissed with costs. 59 HEYDON JA: I agree with Rolfe AJA. 60 DAVIES AJA: I agree with Rolfe AJA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.