New South Wales Court of Appeal CITATION : Leighton Contractors Pty Ltd v Mohamad & Ors; State Rail authority of New South Wales v Mohamad & Ors [2001] NSWCA 453 FILE NUMBER(S) : CA 40726/00; 40732/00 HEARING DATE(S) : 13 August 2001 JUDGMENT DATE : 6 December 2001 PARTIES : Leighton Contractors Pty Ltd v Hysem Mohamad; State Rail Authority of New South Wales; B.T. & K.A. Coleman Pty Ltd State Rail authority of New South Wales v Hysem Mohamad; Leighton Contractors Pty Ltd; B.T. & K.A. Coleman Pty Ltd JUDGMENT OF : Priestley JA at 1; Meagher JA at 91; Studdert J at 92 LOWER COURT JURISDICTION : District Court LOWER COURT DC 4010/97 FILE NUMBER(S) : LOWER COURT Backhouse DCJ JUDICIAL OFFICER : 40726/00 Appellant - J. McIntyre SC Respondent (1) - C. O'Connor QC / A. Jamieson Respondent (2) - M. Holmes QC / R. Page Respondent (3) - M. Joseph SC / D. Wilkins COUNSEL : 40732/00 Appellant - M. Holmes QC / R. Page Respondent (1) - C. O'Connor QC / A. Jamieson Respondent (2) - J. McIntyre SC Respondent (3) - M. Joseph SC / D. Wilkins 40726/00 Appellant - Moray & Agnew Respondent (1) - Taylor & Scott Respondent (2) - Dexter Healey Respondent (3) - Hunt & Hunt SOLICITORS : 40732/00 Appellant - Dexter Healey Respondent (1) - Taylor & Scott Respondent (2) - Moray & Agnew Respondent (3) - Hunt & Hunt CATCHWORDS : District Court action for negligence - apportionment of liability between three defendants LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED: Romeo v Conservation Commission (1998) 192 CLR 431 Transfield Pty Limited v Fallavolita (1984) 154 CLR 531 DECISION : Appeal as to liability dismissed, apportionment changed, assessment of damages varied. Parties to bring in short minutes. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40726/00 CA 40732/00 DC 4010/97 PRIESTLEY JA MEAGHER JA STUDDERT J Thursday, 6 December 2001 LEIGHTON CONTRACTORS PTY LIMITED v MOHAMAD & ORS STATE RAIL AUTHORITY OF NEW SOUTH WALES v MOHAMAD & ORS DISTRICT COURT ACTION FOR NEGLIGENCE – whether injured while working on State Rail Authority railway track – brings action against State Rail Authority, Leighton and Public Works Department – does not bring action against Coleman, his direct employer – Coleman a subcontractor from Leightons – Leighton had contracted with Public Works Department to carry out project on State Rail Authority land – the three defendants bring cross-claims against Coleman and one another and Coleman cross-claims against the others – trial judge finds negligence against State Rail Authority and Leighton but not Public Works Department – trial judge finds Coleman if sued would have been liable for negligence – apportions fault 50% to State Rail Authority, 40% to Leighton and 10% to Coleman – State Rail Authority and Leighton appeal as to liability, quantum and apportionment – State Rail Authority's principal legal submission disputes occupancy of State Rail Authority – Leighton's principal legal argument concerns construction of indemnity in contract – each legal submission unsuccessful – appeal as to liability dismissed – assessment of damages varied – apportionment changed to 10% to State Rail Authority, 40% to Leighton and 50% to Coleman. ORDERS 1. Parties directed: (a) to file any written submissions on costs by 4 pm on 10 December 2001; (b) to bring in short minutes of orders at 9.30 am on 12 December 2001. 2. Appeal stood over to 9.30 am on 12 December 2001. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40726/00 CA 40732/00 DC 4010/97 PRIESTLEY JA MEAGHER JA STUDDERT J Thursday, 6 December 2001 LEIGHTON CONTRACTORS PTY LIMITED v MOHAMAD & ORS STATE RAIL AUTHORITY OF NEW SOUTH WALES v MOHAMAD & ORS 1 PRIESTLEY JA: Introduction These are two appeals which by consent have been heard together. They arise from an action which Mr H. Mohamad as plaintiff brought in the District Court against three defendants, State Rail Authority of New South Wales (SRA), the State of New South Wales in its manifestation as the Public Works Department (PWD) and Leighton Contractors Pty Limited (Leighton). 2 The plaintiff claimed that one or more of the defendants had caused him damage by negligence. The damage had occurred when the plaintiff, while working on railway track on SRA property, had fallen over a wall near the side of the track. The wall was vertical and about seven metres high. 3 Negligence alleged against SRA. SRA was alleged to have been negligent as an occupier of the land. 4 Negligence alleged against PWD and Leighton. SRA had entered into an agreement with PWD by which PWD would provide services to SRA for what was called the Enfield Marshalling Yard Project. The liability of both PWD and Leighton was alleged to follow from the fact that PWD had entered into a contract with Leighton, called the Enfield Marshalling Yard Main Contract, pursuant to which Leighton was to carry out, inter alia, track work at the Enfield Marshalling Yard and nearby areas, for which Leighton was to receive an estimated $48 million. 5 The position of the plaintiff's employer. Leighton had sub-contracted part of the work to B.T. and K.A. Coleman Pty Limited (Coleman). The plaintiff was employed by Coleman and it was while he was engaged on part of Coleman's sub-contract work for Leighton that he suffered the fall which caused him damage. 6 The plaintiff did not make Coleman a defendant in his action. 7 Cross claims. However, each of SRA, PWD and Leighton by cross-claim joined the other two defendants as cross-defendants and, additionally, joined Coleman as a further cross-defendant. 8 Trial judge's decisions and orders. The hearing of the trial took place over seven days before her Honour Judge Backhouse. In detailed reasons, she held that SRA, Leighton and Coleman had all been guilty of negligence against the plaintiff. She held that PWD had not been guilty of any negligence. She attributed 50% of the responsibility for the negligence to SRA, 40% to Leighton and 10% to Coleman. She assessed the plaintiff's damages as $650,077. 9 Accordingly, she made the following orders: 1. Judgment for the plaintiff against SRA and Leighton for $650,077 with costs. 2. Judgment for PWD against the plaintiff with costs, such costs to be paid by SRA to the plaintiff. 3. In SRA's cross-claim against Leighton, verdict and judgment for SRA for $260,030, being 40% of the plaintiff's verdict, with costs. 4. In Leighton's cross-claim against SRA, verdict and judgment for $325,038, being 50% of the plaintiff's verdict, with costs. 5. In SRA's cross-claim against Coleman, verdict and judgment for $57,796, with costs. 6. In Leighton's cross-claim against Coleman, verdict and judgment for $57,796, with costs. 7. The cross-claims by SRA and Leighton against PWD, dismissed with costs. 8. PWD's cross-claims against SRA, Leighton and Coleman, dismissed, with each cross-defendant to pay the cross-claimant's costs of the cross-claims. 10 The appeals. SRA and Leighton each appealed. Each contended that it should not have been held liable to the plaintiff and each asserted that if its liability appeal failed, the apportionment of responsibility to it was too high and should be reduced. Each appellant also submitted that in various respects the trial judge's assessment of damages was too high. 11 In the appeals no party questioned the trial judge's finding in favour of PWD. Each appellant's notice of grounds of appeal detailed a number of separate grounds. Written submissions were filed by each appellant in which each ground of appeal was separately dealt with. The same method was adopted by the plaintiff/respondent and Coleman, the employer/respondent, in their written submissions in reply. Argument about Coleman's negligence was a major part of the submissions of all parties in the appeal. I will deal with the various grounds of appeal concerning liability separately and then quantum and finally apportionment. In the hope of making it easier to follow the parties' arguments about the particular grounds of appeal I will first set out the main circumstances relevant to the plaintiff's accident and injury and then what happened about the cross-claims against Coleman based on its negligence. Summary of facts. 12 SRA and PWD agreed that PWD would provide services to SRA for the Enfield Marshalling Yard Project. Then, in December 1994 Leighton contracted with PWD to arrange and oversee the design, development and construction of works at the Enfield Marshalling Yards. During 1995 Leighton sub-contracted with Coleman to do part of the work. Coleman was to receive approximately $4 million for its sub-contract work. There were numerous other sub-contractors on the site. The plaintiff began work with Coleman late in November 1995 as a welder. From then until 21 April 1996 the plaintiff worked on the site. On 10 April 1996 Coleman was given notice that it would be required to do some work on the railway tracks a short distance north of the site. On 20 April 1996 Coleman's leading hand and Coleman's foreman went with Leighton's site engineer to inspect the new work site. On the following day the site engineer gave track clearance to Coleman's leading hand to go upon the new work site and he then took a number of Coleman's employees to it, including the plaintiff. The work site was at a section of the railway tracks which was on an elevated embankment running north/south with Pemberton Road running beside it, on a lower level, on its eastern side. The slope of the embankment down to the lower level on each side was in most places approximately 45 degrees. Near where the plaintiff began to work the embankment formed a bridge over the Cooks River. Beside the river as it ran through and under the embankment was a footpath. At the point where the footpath went beneath the embankment and running from the bridge opening back south from that opening the embankment was retained by a vertical wall approximately seven metres high. After some distance this wall ended and the slope of the embankment again became approximately 45 degrees. Where the plaintiff began to work on the part of the track almost immediately above where it crossed the footpath and Cooks River, the distance between the easternmost rail and the top of the embankment was according to the evidence between four and five feet. Between that easternmost rail and the top of the wall there ran a structure called a cabling trough standing about a third of a metre above the ground. It enclosed cables connected with the operation of the railway. Between the cabling trough and the top of the wall there was vegetation standing about a third of a metre high. This vegetation masked the edge of the embankment. None of the three men who inspected the site on 20 April 1996 noticed that at this part of the embankment there was a vertical drop close to where Coleman's employees would be working on the railway track. The plaintiff was not aware of this either. When Coleman's employees began work on this part of the track on 21 April they had a work trolley with them which was supposed to hold equipment necessary for the job they were to do. Part of the safety precautions which Coleman was obliged to take for work safety on the site was the provision of a bucket of water on the trolley. It was known that welding sparks could cause nearby inflammable material to catch fire. The plaintiff was lying on the track doing welding work and his offsider was some distance away when he suddenly saw that the undergrowth on the eastern side of the track was on fire. He went to the trolley but there was no bucket of water there. He then tried to put the fire out with his gloves and in doing so stepped backwards over the cabling trough. As the fire spread and he continued to try and beat it out he moved back towards what, unknown to him, was the top of the vertical embankment wall. It was from here that he fell and suffered injuries, including a lasting and severe injury to his left ankle. He also broke his left wrist. At this time he was thirty-seven years old. Negligence alleged against Coleman. 13 The main heads of negligence alleged against Coleman by Leighton and SRA were that Coleman (a) did not have fire fighting equipment readily available; (b) did not provide a spotter; (c) did not erect parawebbing; and (d) failed to warn the plaintiff of danger. 14 As to (a) and (b), the trial judge found that the factual allegations were made out, but formed the opinion that even if fire fighting equipment had been readily available and there had been a spotter, the plaintiff would have done the same things in response to the breaking out of the fire. She accordingly found there was no causal connection between the absence of fire fighting equipment and a spotter and the accident which befell the plaintiff. 15 As to (c), the trial judge accepted evidence that if parawebbing had been in place it would not have been at the edge of the wall, but closer to the railway tracks so that the plaintiff would have had to step over it in any event and again would have done what he did in the absence of parawebbing, so that again she held there was no causal connection between the absence of parawebbing and the accident. 16 As to (d) the trial judge noted Coleman's submission that it was not aware of the danger and so was not in a position to warn the plaintiff of it, but also noted Leighton's submission that Coleman through its employee Mr Manning knew of the danger because he had said in his evidence that he had seen a drop beside the bridge. The trial judge then remarked that the force of Coleman's submissions was that Coleman's responsibility was minimal compared to that of Leighton. It seems that it was on the basis that Coleman knew of the danger that the trial judge concluded that Coleman was negligent although its responsibility was substantially less than that of Leighton. Leighton's appeal against liability. 17 The first of Leighton's grounds of appeal directed to liability was ground 2. Ground 1 was directed to the quantum of damage. 18 Ground 2. Her Honour erred in finding that the Appellant [Leighton] ought to have been aware of the potential danger or hazard in the vicinity where the First Respondent [the plaintiff] was working. For Leighton it was pointed out that when its site engineer inspected the site the day before work started on it together with two of Coleman's senior employees, none of them noticed that where the embankment bridged the Cooks River the side of the embankment was not a 45 degree slope, but a vertical wall. Leighton pointed out further that the plaintiff had not been aware of a vertical drop. Leighton submitted the danger could only have been observed by leaning over the parapet of the bridge and looking towards the junction of the bridge and the wing wall, or alternatively, by moving away from the railway track through the dry grass and scrub between it and the vertical drop. It then submitted that Leighton could not reasonably have been required to pay any closer attention to the bridge to discover the concealed danger than its site engineer had paid when inspecting the site the day before. The trial judge however had come to the opposite conclusion based in part on the existence of an overall occupation health and safety plan which it had been obliged to prepare pursuant to its contract with PWD. The trial judge said that under this plan Leighton had a duty to all employees on the site including the employees of sub-contractors to identify risks including recognition of the major likely causes of injury on the project and to undertake workplace inspections and safety audits. Leighton's site engineer agreed risks identification was one of the particular roles of the Site Safety Committee established pursuant to the contract. The chairman and secretary of the Site Safety Committee were Leighton personnel. 19 Based on these matters the trial judge held that Leighton had responsibility for the overall safety of the site and that Leighton ought to have been aware of the potential danger or hazard in the vicinity of the area where the plaintiff was working. I agree with her Honour's reasoning on this aspect of the case. In the circumstances in which Leighton was carrying out its contract with SRA, it should, in my opinion have been aware of the vertical drop close to the railway track where the embankment bridged the Cooks River. It was Leighton who required Coleman to do welding work on the railway track at that particular place. As part of its own duties at the time of requiring that work to be done Leighton should have conducted a more rigorous inspection of the work site than it did. 20 In my opinion this ground fails. 21 Ground 3. Her Honour erred in finding that the Appellant [Leighton] failed to take adequate measures for the safety of the First Respondent [plaintiff]. The trial judge, following on from her finding that Leighton should have been aware of the potential danger, said that Leighton should have provided some form of fencing which would have warned the plaintiff of the existence of the danger and/or prevented him falling over the edge. Leighton's submission that the trial judge was wrong in this holding, depended principally upon its succeeding on its Ground 2. Its lack of success on that ground has the result, in my opinion, that the trial judge's reasoning, based on her finding, is not reasonably open to challenge. 22 Grounds 4 to 15. These grounds are set out later under the heading "Leighton's extent of responsibility grounds" where they are more appropriately dealt with. Although, under ground 4, Leighton submitted that various steps the trial judge held should have been taken for the safety of the plaintiff, were matters which Leighton was entitled to rely upon Coleman to carry out, once it is accepted, as I have accepted, that Leighton should have been aware of the danger created by the vertical drop close to the tracks, then it necessarily follows that at the least Leighton was in breach of duty, as her Honour found, in not providing some kind of fencing or effective warning or ensuring that such was provided. Counsel for Leighton made it clear in oral argument that it was not being submitted for Leighton that Leighton escaped responsibility by having sub-contracted the work to Coleman. Leighton's entitlement to rely upon Coleman's competence was a factual matter. 23 Thus the points which Leighton was seeking to rely on under ground 4 will be relevant in comparing the extent of its responsibility for the plaintiff's damage with that of Coleman and SRA but do not help it in overcoming its liability to the plaintiff. The position is the same in regard to grounds 5 to 15. SRA's appeal against liability. 24 Ground 1. Her Honour erred in finding that the Appellant [SRA] was involved in the site conditions in which the First Respondent [plaintiff] carried out his work additional to its involvement of ensuring that the area was free of train movements. In support of this ground SRA relied on the fact that it had engaged PWD to arrange and oversee the design, development and construction of the Enfield Marshalling Yard, leading to PWD's contract with Leighton and Leighton's sub-contract with Coleman. It was submitted that the only matter with which SRA was concerned on the site was train movements and that everything else fell in the domain of Leighton and Coleman. However, the trial judge had evidence before her that at some stage before the accident the SRA erected a partial fence along the wall on the eastern side of the embankment to prevent people getting on to SRA property; that there had been an extension of the fencing at the top of the embankment (which did not reach to the area where the plaintiff fell to prevent people falling from it); that SRA gangs were doing welding work on the track about 50 metres away from where the plaintiff was working at the time he fell; and that from time to time SRA took steps to control the vegetation at the side of the tracks. Also, the trial judge referred to evidence before her that there were two SRA inspectors who checked the working areas where the SRA workers were working near the plaintiff, on the day he fell. 25 The trial judge stated her conclusion: "I am satisfied to the requisite degree that SRA had not abandoned the site with exclusivity to others to occupy but rather it was in daily occupation controlling entrance as was its duty." 26 In my opinion this conclusion was, on the evidence in the case, a proper one. I therefore do not accept SRA's ground 1. 27 Ground 2. Her Honour erred in finding that the obligation to reduce the risk of fire resulting from the work carried out by the First Respondent [plaintiff] was the responsibility of the Appellant [SRA]. This ground was linked with ground 1. Once ground 1 fails, it seems to me to follow that for the reasons given by her Honour, which included that at all times SRA: exercised control over the track and environs upon which the plaintiff was working at the time of the accident; was the owner and occupier of that area; and had in effect created the danger which caused the accident and further, that the vegetation concealed the vertical drop from the embankment and could have been removed by the SRA at very small cost, this ground fails also. 28 Ground 3. Her Honour erred in finding that the Appellant [SRA] owed a duty to the First Respondent [plaintiff] to eliminate any hazards for potential injury resulting from the work performed by the plaintiff. This ground also fails for substantially the same reasons as grounds 1 and 2, in my opinion, fail. 29 A subsidiary submission made in support of this ground referred to the fact that in a section of her reasons dealing with submissions made on behalf of Coleman the trial judge recounted a submission in the course of which Coleman's counsel submitted that "people who attended the safety meeting walked over the track SRA, Leighton and Coleman before the injury". The point of the overall submission was that Coleman's alleged failure to implement the safety plan had not been a cause of the plaintiff's injury. The trial judge said she accepted this submission. If she understood that the quoted (and evidently garbled in transcription) part of the submission meant that an employee of the SRA had walked over the track before the injury, along with employees of Leighton and Coleman, then she made a mistake in accepting the submission so far as it concerned SRA. In my view such a mistake was inconsequential so far as the main lines of her Honour's reasoning were concerned. If the SRA were left out of the quoted sentence, I do not think her Honour's reasoning and conclusions would be in any way affected. 30 In my opinion this ground also fails. 31 Grounds 4-9. These grounds are set out later under the heading "SRA's extent of liability grounds" and then discussed. 32 Ground 10. Her Honour erred in finding that the grass in the vicinity of the parapet was inflammable and close to the edge and was a problem. Ground 11. Her Honour erred in finding that the appellant [SRA] was aware of the problem of knee high grass in the vicinity of the parapet . I find it difficult to understand how these grounds could be seriously put. The facts of the accident, on any version of it, seem to me to show that ground 10 must fail. As to ground 11, employees of SRA were working about 50 metres away from where the accident happened. It seems to me to follow from this that the SRA must have been aware of the existence of the undergrowth beside the tracks; for reasons earlier given it must have been aware of the vertical drop; and it must have been aware that this could cause a problem. 33 Ground 12. Her Honour erred in finding that the harm suffered by the First Respondent [plaintiff] was a reasonably foreseeable result of the omissions of the Appellant [SRA]. For SRA it was submitted that the plaintiff only came to fall backwards over the embankment "by reason of a series or combination of events which were not reasonably foreseeable" . To my mind, simply on the basis of the summary facts so far mentioned, the opposite conclusion is the correct one. I agree with the trial judge on this matter. 34 This ground also fails. 35 Ground 13. Her Honour erred in finding that the precipice could not have been seen when walking along the railway track. Ground 14. Her Honour erred in finding that the danger associated with the precipice could only have been observed if the observer was to lean over the parapet and look towards the junction of the bridge and the wing wall . Ground 15. Her Honour erred in finding that the danger associated with the precipice could only have been observed if a person had left the track and proceeded some distance into the dry grass and scrub . The findings attacked in these grounds were made by her Honour after consideration of the very detailed evidence which was before her. It may be that another fact finder might have come to different conclusions. However, having reviewed the evidence for myself, I think the conclusions attacked by these grounds were well open to her Honour and I myself would not come to any different conclusions. 36 These grounds also fail. 37 Ground 16. Her Honour erred in finding that the Appellant [SRA] owed a relevant duty of care to the First Respondent [plaintiff]. Ground 17. Her Honour erred in finding that the Appellant [SRA] acted in breach of a duty of care to the First Respondent [plaintiff] by failing to reduce the vegetation . Ground 18. Her Honour erred in finding that the Appellant [SRA] acted in breach of a duty of care to the First Respondent [plaintiff] by failing to provide a guard or fence while he was working . 38 In arguing earlier grounds relevant to these three, SRA relied on statements in recent High Court decisions, in particular Romeo v Conservation Commission (1998) 192 CLR 431, as supporting these grounds. However, the facts of these cases were quite different from the present. In SRA's appeal, the failure of the grounds relating to liability preceding grounds 16, 17 and 18 leaves untouched the factual foundations upon which the trial judge reached her conclusions attacked in grounds 16, 17 and 18. Once these factual foundations are accepted as the basis upon which the case should be considered in this court, in my opinion none of the bases for denying the existence of a duty of care discussed in recent and current High Court decisions could be made out. It follows in my view that each of the findings attacked in the three grounds is correct and each of the three grounds therefore fails. Quantum. 39 The trial judge stated her views on the various heads of the plaintiff's damages at common law and as affected by Workers Compensation legislation. The parties then agreed on the following Schedule as reflecting her Honour's reasons for judgment: " Item Common Law Workers Compensation General Damages 150,000 - Non-eco loss - 121,055 Interest 2,770 - Past eco loss 130,972 130,972 Interest 11,373.18 8,529.88 Future eco loss 247,795 203,843.39 Past supa 7,792.80 7,792.80 Interest 1,870.27 1,402.70 Future Supa 19,514.89 19,514.89 Past OP's 39,137.77 39,137.77 (OP's since hearing) 203.15 203.15 Future operation 18,550 18,550 Future eco loss for operation 4,140 4,140 Fox v Wood 19,378.01 19,378.01 Future OP's 4,590.75 4,590.75 Total $658,809.82 $577,962.22 90% C/L $592,280.83 10% W/C $57,796.23 Verdict $650,077.06" Leighton's appeal against quantum. 40 Leighton had only one rather general ground of appeal on damages, which was ground 1 in its notice of appeal. It was directed to the general damages component of her Honour's award. SRA had a number of detailed grounds. Without objection, Leighton sought to rely on SRA's damages submissions. Accordingly I consider them next. SRA's appeal against quantum. 41 Ground 23. Her Honour's award of general damages to the First Respondent [plaintiff] was above the range of appropriate damages in the circumstances of the present case. Ground 24. Her Honour's assessment of non-economic loss of 55% was above the range of an appropriate assessment in the circumstances of this case . SRA relied on its written submissions in support of these grounds. These were as follows: "(Ground 23) The First Respondent [plaintiff] suffered significant injuries to his left hand (wrist) and left ankle. The injury to the hand was in no way as significant as that to the ankle. With regard to his wrist when last seen by Dr Dilley on 12 February 1998 apart from some aching when moving furniture he was having little trouble with the wrist other than aching with the change of weather ... . As to the ankle the First Respondent [plaintiff] has continuing and permanent restrictions in his left ankle. He has had three operations and in all probability will require a fourth ... . Despite his restrictions the First Respondent [plaintiff] has during the time that he has been in Australia since the accident been able to work as a storeman full time, including overtime, for a period in excess of six months ... , walk long distance ... , ascend and descend stairs without any apparent difficulty, including taking steps two at a time ... . Given the nature and extent of the injuries and continuing disabilities together with the First Respondent's [plaintiff's] displayed capabilities the award of general damages in this case was excessive." "(Ground 24) Many of the doctors who have examined the First Respondent [plaintiff] have given assessments as to the level of disability in percentage terms which he suffers in both the left arm and left leg. With the exception of Dr Fox the assessments for the left leg range from 20% to 30%... . As regards the left arm the assessments range from 5% to 17% ... . Given these assessments together with the matters raised in Ground 23 the assessment of 55% for non-economic loss does not when compared to the most extreme forms of injury bear a proper precaution according to the nature and extent of those injuries. The percentage assessment is excessive." 42 These submissions rely on some only of the evidence. Dr Fox was the treating surgeon and had seen the plaintiff on many occasions over a period of three years. He gave extensive evidence which showed the position of the plaintiff in a different and more serious light than the evidence given by the doctors upon whom SRA relied. The trial judge set out in her reasons a good deal of the medical evidence including that of Dr Fox, and, for reasons which she explained, accepted Dr Fox's factual and opinion statements. She then concluded with this summary: "Both Drs Fox and Harvey agree that there was no suggestion of any exaggeration in this Plaintiff. Dr Fox has observed the Plaintiff over a very long period of time and is in a good position to comment upon the Plaintiff's veracity. Dr Fox says that the Plaintiff is genuine. The film evidence was considered by Dr Fox who said he observed an altered gait when walking. This is in the circumstances of the past surgery and arthritis. I accept the Plaintiff as an honest witness and that he has not exaggerated his symptoms or disabilities. I am satisfied he was well motivated to return to work as soon as he was able to do so. I accept he has not exaggerated his complaints to Drs Fox and Harvey and I accept the evidence the Plaintiff has given in this Court about the pain he suffered immediately following the accident itself and post operatively and that he has continued to have pain in his left ankle up to the date of hearing and is likely to continue. There is objective evidence of arthritis in the ankle. I accept the evidence of Dr Fox that it will progress and that there is the very real likelihood that he will come to surgery and undertake a fusion of the ankle. I am also satisfied that he has been and still is restricted in the type of work he can undertake. I accept the evidence of Dr Fox that there has been a steady decline over the 3 years from the accident and that he will probably come to surgery within a period of 5 years." 43 I do not see any error in her Honour's acceptance of Dr Fox's evidence. The conclusions she reached may have produced figures on the high side, but they do not seem to me to be unreasonably so. It is clear from her reasons that as well as having seen the plaintiff and all the witnesses over a considerable period she gave proper consideration to the medical evidence both oral and documentary. Her estimate seems to me to be within the bounds of reasonableness. I would not interfere with such an estimate unless I could see that it was affected by some clear mistake or obvious over-estimation. As I have indicated, I do not think that is the case here. I therefore do not accept these grounds of appeal. 44 Ground 25. Her Honour erred in finding that the First Respondent [plaintiff] had suffered a loss of earning capacity from 21 April 1996 to the date of judgment equivalent to the amount he would have earned in continuous full time employment as a thermit welder. Ground 26. Her Honour erred in finding the First Respondent's [plaintiff's] past loss of earnings amounted to $130,972 . For SRA it was submitted that the trial judge had failed to give proper account in her decision concerning loss of earning capacity to various matters, the principal ones of which were (a) the periods which the plaintiff had voluntarily spent in Syria, amounting to more than thirteen months from October 1996 to April 1999; (b) his fitness at certain times for selected duties; (c) his having obtained full time work and overtime for a period in 1998. 45 The plaintiff's evidence at the trial was given in May 1999. The hearing was then adjourned until November 1999. Judgment was delivered in August 2000. The plaintiff's evidence had been that in May 1998 he had got work as a storeman with an employer he described as B & D Roller Door Australia. When that employer found out about his disabilities he was put off, in October 1998. After that he went to Syria where he stayed from 1 December 1998 until 25 April 1999. The purpose of his visit was to see his wife and children. The plaintiff and his wife had decided their children should spend four to five years of their lives in Syria to learn their culture and their Arabic language. The plaintiff had gone to Syria each year to visit his family. In fact he had lost his position with SRA in 1993 because in that year he spent three months in Syria and overstayed his leave. It would seem that the plaintiff, uninjured, would have continued to interrupt his employment each year to visit his family in Syria. 46 Because of his trip to Syria ending in April 1999, the plaintiff had only been back in Australia for a month or so before he gave his evidence. In the course of that evidence he said he was going to be looking for suitable work. What happened between his giving his evidence in May 1999 and the date of judgment is not clear. 47 In dealing with economic loss to the date of judgment, the trial judge used two periods, the first to May 1999 and the second from that date till almost the date of judgment. She arrived at a figure of $130,972 which contained a mathematical error, which in the course of the hearing of the appeal was by consent corrected, and the figure reduced to $113,108. For the first period the trial judge based her calculation upon an actuarial report by Carroll Ranson, and for the second she used a figure obtained from Coleman of the wage of a comparable employee. In regard to the second period the figure calculated by her Honour proceeded upon the assumption, which does not seem to be supported by evidence, that the plaintiff remained out of work following his return from Syria until the date of judgment. It may be that that assumption was correct, but even if it were, there seems to be reason to reduce the $113,108 for the past to recognise time spent in Syria which would have been spent there in any event regardless of the employment injury and disabilities. (It may well be that he went again at the end of 1999, although the evidence is silent about this.) In my view there should be deducted from the amount allowed for the period to May 1999 the sum of $7,168 (that is $448 a week for sixteen weeks). This represents the period of the last of the visits to Syria to that date. I would not make any deduction for earlier visits after the accident because the plaintiff's ability to perform restricted duties had not been demonstrated then. 48 In regard to the period from May 1999 to judgment, there appears to have been no evidence before the judge concerning the plaintiff's employment or unemployment. For future economic loss after judgment the trial judge treated the plaintiff as having a residual capacity of 50%. This would seem to me to be the appropriate approach also for the period from May 1999 until judgment. It was submitted for SRA that the weekly loss during the period should be measured at $319 a week. This figure was based on a method of calculation which seems to me to be appropriate, applied by SRA to the available evidence. I am therefore prepared to adopt it. 49 The result therefore that in my opinion the trial judge should have reached in regard to past economic loss is as follows: (i) Allowance to 24 May 1999: $72,276.50 Less 7,168.00 $65,108.50 (ii) Allowance from 25 May 1999 to date of judgment, 18 August 2000: 20,416.00 $85,524.50 50 Ground 27. Her Honour erred in assessing the First Respondent's [plaintiff's] past loss of superannuation entitlements as $9,168. According to a Schedule of Past Economic Loss put before the court by SRA, an appropriate way of calculating the figure for past loss of superannuation entitlements was to take 7% of the past economic loss figure and then reduce that by 15% for tax. It was not disputed that this was a roughly but sufficiently accurate method. Applying it to the figure of past economic loss arrived at in par 49, the corrected figure is $5088.71. The extent of the responsibility of Leighton, SRA and Coleman for the plaintiff's damage. 51 I will set out Leighton's and SRA's grounds of appeal concerning this subject and will then deal with them collectively. Leighton's extent of responsibility grounds. 52 Ground 4. Her Honour erred in finding that the Appellant [Leighton] had an overriding responsibility to ensure workplace safety for the First Respondent [plaintiff]. Ground 5. Her Honour erred in finding that the responsibility of the Third Respondent [Coleman] was substantially less than that of the Appellant [Leighton] . Ground 6. Her Honour erred in finding that the First Respondent's [plaintiff's] actions would have been the same if there had been water on the trolley provided by the Third Respondent [Coleman] and that the accident would still have happened and that the absence of fire fighting equipment was not causally related to the First Respondent's [plaintiff's] injuries . Ground 7. Her Honour erred in finding that the Third Respondent [Coleman] was in no better position than the Appellant [Leighton] to identify the risk of the First Respondent [plaintiff] sustaining injury . Ground 8. Her Honour erred in finding that the presence of the fire spotter would not have made any difference . Ground 9. Her Honour erred in finding that there was no causative connection between the absence of parawebbing and the injuries to the First Respondent [plaintiff] . Ground 10. Her Honour erred in finding that the Third Respondent [Coleman] was not in breach of Regulation 73(3) of the Construction Safety Regulations 1950 . Ground 11. Her Honour erred in finding that the Third Respondent [Coleman] was not in breach of clauses 14 or 15 of the contract between the Appellant [Leighton] and the Third Respondent [Coleman] . Ground 12. Her Honour erred in finding that the indemnity contained in clauses 17(1) of the said contract operated to maintain proportionality of responsibility between the Appellant (Leighton) and the Third Respondent (Coleman) . Ground 13. Her Honour erred in finding that the Appellant (Leighton) could only claim complete indemnity from the Third Respondent (Coleman) when the contract specifically so provided . Ground 14. Her Honour erred in assessing that the Appellant's [Leighton's] contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 should be 40% . Ground 15. Her Honour erred in finding that the contribution of the Third Respondent [Coleman] pursuant to the said Act should be 10 . SRA's extent of responsibility grounds. 53 Ground 1. This ground was relevant to liability as well as extent of responsibility. It has been previously set out and rejected (see pars 24 -26 above). Ground 4. Her Honour erred in finding that the Appellant [SRA] had a much better chance of assessing any danger at the work site as compared to the Third Respondent [Coleman] . Ground 5. Her Honour erred in finding that the Third Respondent [Coleman] had no power or authority to erect any temporary fencing or barriers if necessary to make the area safe for the First Respondent [plaintiff] to carry out his work . Ground 6. Her Honour erred in finding that there was no causal connection between the lack of parawebbing and the harm suffered by the First Respondent [plaintiff] . Ground 7. Her Honour erred in finding that the Third Respondent [Coleman] had not acted in breach of Regulation 73(3) of the Construction Safety Regulations 1950 . Ground 8. Her Honour erred in finding that the Appellant [SRA] attended safety meetings in relation to the work performed by the Third Respondent [Coleman] . Ground 9. Her Honour erred in finding that the Third Respondent [Coleman] had taken all measures necessary to protect the First Respondent [plaintiff] . Ground 19. Her Honour erred in deciding that the Appellant's [SRA's] contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 should be 60% or 50% . Ground 20. Her Honour erred in failing to give reasons for her disposal of the Cross-Claim by the Appellant [SRA] against the Third Respondent [Coleman] . Ground 21. Her Honour erred in deciding that the Third Respondent's [Coleman's] contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 should be 10% or 20% . Ground 22. Her Honour erred in deciding that the Second Respondent's [Leighton's] contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 should be 30% . 54 The foregoing grounds of appeal give a reasonably accurate indication of the attacks made upon the trial judge's assessment of the extent of the responsibility of SRA, Leighton and Coleman for the damage suffered by the plaintiff. By written submission and then in oral argument each of the three parties elaborated and defended its own position, SRA and Leighton saying that the trial judge had underestimated Coleman's responsibility and had overestimated its own, while Coleman contended the judge had not been in error. 55 The trial judge appears to have been heavily influenced in her assessment of the various parties' responsibilities by two main factors; the first was the emphasis she placed on SRA's occupation of the site, construction in the first place of the embankment with its vertical wall at the site of the bridge, the presence of its own workers quite close to the point where the plaintiff fell and its ability to control the undergrowth at the side of the track. The other was her acceptance of submissions made for Coleman that of the various heads of negligence alleged against it some had not made any material contribution to the accident and the causal connection of others was only slight. 56 In my respectful opinion the trial judge placed far too much emphasis on these factors in comparing the responsibilities of the three parties she had held were negligent. 57 As to the first matter, it cannot be said that SRA had not acted reasonably in making its agreement with PWD that PWD should provide its services for the Enfield Marshalling Yard Project. SRA also knew that PWD had contracted with Leighton for Leighton to carry out the work and that Leighton in turn had sub-contracted part of the work to Coleman. There was no suggestion in the evidence that either of these companies was not an appropriate choice for its contract or sub-contract work. It was not submitted that SRA by engaging PWD had delegated responsibility for the site in a legal sense to PWD or Leighton or Coleman. However, it was reasonable for SRA to proceed on the basis that one or two or all three of PWD, Leighton and Coleman would carry out their contractual obligations in a responsible way. SRA was entitled, as a matter of fact, to rely to a large extent upon one or more of the other three. 58 Nevertheless there were the other factors upon which the trial judge relied, which, although I do not think they were so important as the trial judge did when comparing the responsibilities of the three tort feasors, were nevertheless a proper basis for her finding that SRA was liable in negligence. 59 As to the causal questions which the trial judge found in favour of Coleman, I find myself in disagreement with her Honour. It seems to me quite unrealistic to say that even if the fire fighting equipment which was not on the trolley where the plaintiff was working had been available, and even if a spotter had been there, the accident would have befallen the plaintiff in the same way. It seems to me more than probable that had the necessary equipment been available the plaintiff and his offsider would have immediately made use of it and brought the fire either wholly or partly under control in such a way as not to cause the plaintiff to step backwards to the edge of the vertical drop and then to fall over it. 60 Once it is found that there was a causal connection between the breaches by Coleman of safety requirements and the plaintiff's fall, then quite clearly the extent of Coleman's responsibility for the plaintiff's damage becomes much larger. 61 There were two other considerations which influenced the trial judge to attribute to Coleman the low extent of responsibility which she did. One was her view that Regulation 73(3) of the Construction Safety Regulations 1950 did not apply to the place where the plaintiff fell over the vertical drop. Regulation 73 imposed various requirements upon any person carrying out any building work by his servants or agents. By sub-cl (3) such a person was bound, subject to Regulation 74, to "provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m." 62 The trial judge said she thought the sub-clause was not applicable because she accepted a submission by Coleman that it related "to (fencing) at the place of work such as where there are manholes, scaffolding, etc; it was not necessary to fence the track where he was welding. As well Coleman had no power or authority to erect such fencing on SRA property. Only SRA could do this as it eventually did." 63 Both Leighton and SRA submitted that the trial judge was in error in the foregoing conclusions. They submitted that her Honour's construction of Regulation 73(3) was not in accordance with what the High Court said about it in Transfield Pty Limited v Fallavolita (1984) 154 CLR 531. 64 For Coleman, the trial judge's decision was sought to be supported by one argument only. It was not submitted either that Coleman had not been carrying out building work or that the Regulation could not be relevant to the case. The argument for Coleman was that at the site where the plaintiff had his accident, he was not at a place of work. His place of work was the railway. 65 I do not agree with this submission. The plaintiff was working on the railway track. It was a known hazard of welding work that sparks could start fires nearby. It was accepted that Coleman should have supplied on the working trolley some means of fighting such fires. It was obviously part of the plaintiff's duty to attempt to put out such a fire if it seemed possible to do so without undue danger to himself. To deal with small fires must have been part of the plaintiff's working duties. In my view his place of work at the time of the accident was the railway track and the land immediately bordering that railway track. According to the evidence the distance between the track and the vertical drop was four to five feet. In my opinion that was part of the working place at which the plaintiff was working when the fire broke out. 66 The other point relied on by the trial judge in this connection was her conclusion that Coleman had no authority to erect fencing. She based this conclusion on the evidence of an employee of Coleman and of SRA. Assuming in favour of Coleman that this evidence was sufficient to justify her Honour's conclusion of law about authority, I would nevertheless be of opinion that Coleman would not need authority to erect a small temporary barrier sufficient at least to warn the plaintiff not to go past it. 67 In my view the trial judge should not have taken the matters relating to Regulation 73(3) and the authority to fence into consideration favourably to Coleman in assessing the extent of Coleman's responsibility for the damage suffered by the plaintiff. 68 The other matter which influenced her Honour in her assessment of the extent of Coleman's responsibility was her conclusion that Coleman was not bound to indemnify Leighton, pursuant to their contract, in respect of the plaintiff's claim against Leighton in respect of his personal injury. Whether or not the trial judge was correct in this conclusion depends upon the construction of two clauses in the contract. 69 The primary clause, contained in a standard form of sub-contract was cl 17.1 This clause relevantly provided: " Indemnity by sub-contractor. The Sub-contractor shall indemnify the Main Contractor against: i. ... ii. claims by any person against the Main Contractor in respect of personal injury; arising out of or as a consequence of the carrying out by the Sub-contractor of the work under the Sub-contract but the Sub-contractor's liability to indemnify the Main Contractor shall be reduced proportionately to the extent that the act or omission of the Main Contractor ... may have contributed to the loss, damage, death or injury. Clause 17.1 shall not apply to: (a) ... (b) exclude any other right of the Main Contractor to be indemnified by the Sub-contractor; (c) ... (e) ..." 70 An annexure to the standard form contract contained some additional clauses. One of these added to cl 15, which was headed "Protection of people and property" by inserting a number of paragraphs between the last and second last paragraphs of cl 15. The sub-clause relied on by Leighton as relevant was as follows: "The Sub-contractor shall ensure that: i. the work under the Sub-Contract is at all times carried out in accordance with the common law and statutory obligations relating to industrial health and safety and is maintained in a safe condition including but limited to adequately covering and partitioning off penetrations and installing handrails, kick rails, safety mesh and other devices to protect personnel ..." 71 The trial judge accepted a submission made by Coleman that any claim by Leighton for indemnity from Coleman was controlled by cl 17.1 which maintained proportionality of responsibility. In the appeal, Leighton submitted that the proportionality requirement of cl 17.1(b) could not exclude Leighton's right to a full recovery pursuant to the sub-clause added to cl 15 set out in the preceding paragraph. 72 I do not accept Leighton's submission. For breach of the additional paragraph in cl 15 Leighton would be entitled to damages from Coleman. What is excluded from the proportionality requirement of cl 17.1 is any right conferred by the contract upon Leighton to be indemnified by Coleman. Indemnity is a different legal concept from damages for breach of contract. In particular circumstances they may well operate to bring about the same or similar financial consequences, and in some contexts they are sometimes used loosely as roughly equivalent. The court was referred to a number of cases exemplifying this. However, indemnity and damages remain different concepts. None of the examples put before the court provided any close analogy to the present case, in which the two concepts appear in different parts of a highly detailed contractual document, consisting of a standard form with many apparently ad hoc variations. It is the context here that matters, not what has been said about the words and concepts in distinctly different contexts. Here, it seems to me that the term indemnity is used in the contract between Leighton and Coleman in its usual legal sense. To accede to Leighton's submission would involve giving a wide and loose sense to the word in cl 17.1. I do not see any reason for doing this in the interpretation of the contract between the parties. 73 I have so far accepted as valid a number (although not all) of the criticisms made by Leighton and SRA of her Honour's reasoning about the responsibility, as between themselves, of Leighton, SRA and Coleman for the plaintiff's damage. A further valid criticism is that contained in SRA's ground 20. The trial judge gave no reasons explaining, directly at least, how she arrived at her judgment on SRA's cross-claim against Coleman. When this is taken into account together with the other criticisms I have accepted, it seems to me necessary for this court to set aside her Honour's conclusions about the apportionment of fault between the three parties concerned. Fortunately I do not think a new trial of this part of the case to be necessary, as the materials are, in my opinion, ample for this court to reconsider the matter. None of the trial judge's primary findings of fact seem to me to be damaged by the criticisms I have accepted. 74 In approaching this reconsideration of the comparative extent of the responsibility of the three tortfeasors, and putting the matter in broad terms, it seems to me to be appropriate to act on the opinion I have formed that Coleman had the most immediate connection with the plaintiff's accident, it was more obviously negligent than Leighton or SRA and should bear the major part of the responsibility for the plaintiff's damage, and that then, Leighton ranks next in responsibility. It had clear duties under the overall safety management plan and was in a greater degree of immediate practical control in regard to the particular site where the plaintiff was working on the day of the accident than SRA was. 75 The fact that Coleman and Leighton should between them bear, to my mind, by far the greater part of the responsibility for the plaintiff's damages is illustrated by the fact that it was employees of those two companies who surveyed the worksite the day before and failed either to notice or realise the importance of the existence of the vertical drop within four or five feet of where the plaintiff was going to work. 76 When I look at the circumstances of the case in the way I have just mentioned, taking the views I have above described about areas of this part of the case in which I respectfully think the trial judge was in error, my view about the correct allocation of extent of responsibility between the parties is that Coleman's responsibility is 50%, Leighton's is 40% and SRA's is 10%. The various judgments to which these proportions are relevant should be set aside and varied accordingly. Recalculations . 77 The conclusions I have reached require recalculation of the amounts of the various judgments in this case. 78 Past economic loss; superannuation; interest. The reduction in the allowance for past economic loss and the reduction in the allowance for lost superannuation will result in reductions also to the interest on those items. 79 Different calculations are required for the assessment of damages at common law on the one hand and the assessment of damages under the Workers' Compensation Act. 80 Dealing first with the assessment at common law, the sum upon which interest is to be allowed is the difference between the past wage loss figure, $85,524.50, and the total of periodic payments made under the workers' Compensation Act, namely $61,731.98. It is the difference of $23,792.52 which attracts interest, and using an interest rate of 6% for four years four months, the common law figure is $6,185.92. 81 Under the Workers' Compensation Act assessment, s 151M(6) of the 1987 Act requires an interest rate of only three-quarters of the rate prescribed for the purposes of s 95. For this assessment then, the figure becomes $4,639.44. 82 Again using a rate of 6% for four years four months for common law purposes, the interest figures on the reduced allowance for loss of past superannuation benefits become $1,322.88 for the purposes of the common law assessment and $992.16 for the purposes of the assessment under the Workers' Compensation Act. 83 On these calculations, the overall reduction to the common law assessment because of the reduced allowance for past economic loss and for lost superannuation benefits, together with interest on these items, is $53,886.95. 84 The overall reduction to the assessment of damages under the Workers' Compensation Act, less because of the different interest rates, becomes $52,453.28. 85 Other adjustments. There are, however, adjustments to be made to the assessments in favour of the plaintiff. I think it appropriate to allow for the cost of the orthopaedic shoes for which purpose I adopt the calculation in the plaintiff's written submissions both for the purposes of the Workers' Compensation Act assessment and for the purposes of the common law assessment. 86 Additionally, the court has since the argument been informed by counsel for the SRA that the Fox v Wood component is $19,990.08, rather than the lesser sum of $19,378.01 allowed by the judge. This appears to be common ground. 87 The adjustments in the plaintiff's favour for the orthopaedic shoes and the Fox v Wood component increase the common law assessment by $16,179.31. When this is set off against the $53,886.95, the nett reduction in the common law assessment is $37,707.64. 88 Returning to the workers' compensation assessment adjustment, the aggregate credit for the plaintiff is somewhat less (because of the lesser interest rate) being $12,461.20. The overall assessment of damages under the Workers' Compensation Act involves then reducing $52,453.28 by $12,461.20 so that the workers' compensation assessment made by the trial judge ought to be reduced by $39,992.08. 89 The court was provided on the hearing with schedules which indicate how s 151Z(2) affected the assessment at common law. The amended figures will require amendments to that s 151Z(2) adjustment. Disposition 90 The most efficient way of reaching accurate judgment figures seems to me to request counsel to check the calculations already made in these reasons, agree on the remaining figures to be calculated, and to bring in short minutes of orders reflecting the appropriate calculations and judgments. I therefore propose that upon the publication of these reasons the appeal stand over to 9.30 am on 12 December 2001 for the bringing in of short minutes of orders accordingly. So that any questions concerning costs may be decided at the same time, any submissions that any party wishes to make about costs should be put in writing and filed not later than 4 pm, Monday 10 December 2001. 91 MEAGHER JA: I agree with Priestley JA. 92 STUDDERT J: I agree with Priestley JA. ********** 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.