New South Wales Court of Appeal CITATION: Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111 HEARING DATE(S): 13/04/2005 JUDGMENT DATE: 28 April 2005 JUDGMENT OF: Sheller JA at 1; Campbell AJA at 2; Hunt AJA at 3 DECISION: 1. The judgment entered in the District Court is amended: (i) by substituting for the amount of $251,235.20 (as the amount the first defendant, as the plaintiff's employer, was ordered to pay to the plaintiff) the amount of $314,044.01; and (ii) by substituting for the amount of $71,711.20 (as the amount the second defendant, as the occupier, was ordered to pay to the plaintiff) the amount of $322,946.41. 2. The appeal by the second defendant is allowed, the judgment entered against it in favour of the plaintiff is set aside; in lieu thereof, judgment is directed to be entered for the second defendant on the plaintiff's claim. 3. As to the costs in both the trial and the appeal - (i) the plaintiff is to pay the costs of the second defendant (and, if eligible, he is to have a certificate under the Suitors Fund Act 1951); and (ii) the first defendant is to pay the plaintiff's costs (such costs to include the costs of the second defendant which the plaintiff has been ordered to pay). 4. The cross-claim by each defendant against the other defendant for indemnity or contribution is dismissed with costs. 5. The cross-appeal by the plaintiff against the first defendant is dismissed with no order as to costs. CATCHWORDS: Employee of subcontractor injured in course of performing specialised services in premises of third party - sues both employer and occupier - trial judge finds both responsible - duty of occupier to such entrant injured when impeded by readily visible obstruction - occupier not liable - lifting injury caused only by employee undertaking a procedure which, unknown to him through negligence of employer, involved a risk of injury to himself - whether "Bullock" order appropriate in favour of plaintiff. Suitors Fund Act 1951 LEGISLATION CITED: Workers Compensation Act 1987 Almeida v Universal Dye Works Pty LTd (No 2) [2001] NSWCA 156 A V Jennings Ltd v Thomas [2004] NSWCA 309 Bullock v London General Omnibus Co [1907] 1 KB 264 Gould v Vaggelas (1985) 157 CLR 215 Johnsons Tyne Factory Pty Ltd v Maffra Corporation (1948) 77 CLR 544 March v E & M H Stramare Pty Ltd (1001) 171 CLR 506 CASES CITED: Pack-Tainers Pty Ltd v Moore [2205] NSWCA 43 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Stevedoring Industry Finance Committee v Gibson (1998) 20 NSWCCR 417 Steppke v National Capital Development Commission (1978) 21 ACTR 23 Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19 Felk Industries Pty Ltd Appellant PARTIES: Barry Mallett 1st Respondent Newcastle Fire Extinguishers 2nd Respondent FILE NUMBER(S): CA 40558/2003 Mr J Sleight Appellant COUNSEL: Mr S J Harben SC/Mr P R Cummings 1st Respondent Mr G Walsh 2nd Respondent Hunt & Hunt Appellant SOLICITORS: Braye Cragg 1st Respondent Rankin & Nathan 2nd Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 1012/2001 LOWER COURT JUDICIAL OFFICER: Williams DCJ - 17 - - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40558/03 SHELLER JA MW CAMPBELL AJA HUNT AJA 28 April 2005 FELK INDUSTRIES PTY LTD v MALLET & ANOR Judgment 1 SHELLER JA: I agree with Hunt AJA. 2 MW CAMPBELL AJA: I agree with Hunt AJA. 3 HUNT AJA: In the District Court at Newcastle, Judge Williams gave judgment in favour of Barry Ralph Mallet in proceedings he brought claiming damages for personal injury against Newcastle Fire Extinguisher Services Pty Ltd as his employer and Felk Industries Pty Ltd as the occupier of the premises in which he was working when he was injured. Both defendants were found liable. Felk Industries Pty Ltd has appealed against the judgment pursuant to leave granted by this Court last year. The plaintiff's employer has not appealed. 4 On 19 July 2000, the plaintiff was sent with another employee to service fire extinguishers located in the appellant's premises. The appellant is a metal fabricator. One of the extinguishers to be serviced was hanging on a wall over a fixed bench. It was the plaintiff's initial task to lift the extinguisher off the wall on which it was hanging and to lower it so that he could service it. According to photographs in evidence, the bench was not a deep one. Access to this extinguisher was, however, impeded by a metal bin full of metal off-cuts. The bin was not high, but its presence meant that the plaintiff had to lean across both the bin and the fixed bench in order to lift the extinguisher off the wall and down. The extinguisher weighed 14.1 kilograms. As he lifted the extinguisher off the wall and down, the plaintiff felt a twinge in his back. He completed the servicing and replaced the extinguisher on the wall, lifting it in the same way as he had lowered it, feeling further pain in his back. 5 The judge found that the plaintiff had suffered a laceration of the L5/S1 disk with displacement of the right S1 nerve posteriority, and as a consequence was not fit for his pre-accident employment but for sedentary work only. He found both defendants guilty of negligence and awarded the plaintiff damages totalling $322,946.40. The only issue raised by the occupier in relation to damages in this appeal concerns the general damages of $130,000. In the view I have formed of the appellant's liability to the plaintiff, it is unnecessary for me to deal with that issue. 6 The judge found that the employer should bear the principal responsibility for the plaintiff's injuries on the basis that it had failed to instruct the plaintiff properly in relation to lifting heavy weights and to warn him of a risk of injury of which he may otherwise have been unaware. Evidence was given by the manager of the plaintiff's employer that there is a need for caution in leaning over to lift a weight because of the possibility of injury resulting from the additional strain on the spine. The judge held that an employer has a non-delegable duty of care to an employee to give appropriate instructions to ensure that the employee understands what risks exist in matters such as lifting and how to avoid those risks which commonly occur in industry. There is no appeal by the employer against the judge's finding that there was a breach of such a duty of care to the plaintiff. 7 The judge found that the appellant, as the occupier of the premises, was also responsible because it had impeded access to the extinguisher for both those needing to use it in a fire and those whose job it was to service it, and that it had thereby created the situation in which the risk of injury arose in the present case. These findings are challenged by the appellant. The judge apportioned liability between the defendants as being 80% for the employer and 20% for the occupier. He rejected a claim by the occupier for indemnity from the employee based in contract. The apportionment is challenged by the appellant, who has argued that it was entitled to a complete indemnity. Again, in the view I have formed of the appellant's liability to the plaintiff, it is unnecessary for me to deal with that issue. 8 The judge rejected the defendants' claim that the plaintiff was guilty of contributory negligence. He recorded the fact that counsel for neither defendant had addressed him on the issue. He said that the plaintiff faced a risk of which he was unaware as a result of his employer's negligence. He found himself in an awkward situation in which there was no-one else in the vicinity to help him move the bin impeding his access to the extinguisher, the factory office was some distance away, and his colleague was working elsewhere in the factory. Confronted by what he thought was a relatively straightforward situation, and unaware of the risk of injury involved in doing so, the plaintiff had decided to lean over the bin to lift the extinguisher rather than call for help to remove the bin. The plaintiff is described by the judge as thus having acted "in the agony of the moment". 9 The grounds of appeal filed by the appellant are elaborately expressed, but the submissions made in their support are more focussed on the real issues which arise. 10 The first of such issues concerns the plaintiff's decision to proceed with his initial task of lifting the extinguisher off the wall and lowering it in order to service it whilst the bin impeding his access remained in place. The appellant complains of what is described as an implied finding by the judge that the weight of the bin had played a part in his decision to proceed in the way he did. What the judge referred to was the awkward situation in which the plaintiff had found himself because there was no-one to help him move the bin, and he commented that the plaintiff had not needed to lift the bin to form an opinion as to its weight, he needed only to look at the bin in order to determine that it was too heavy to lift. The judge's finding that the plaintiff had decided to go ahead nevertheless and lean over to lift the extinguisher without obtaining proper access was based on that material. It was in this context that the judge described the plaintiff as having acted in the agony of the moment. 11 Those findings by the judge do suggest that the plaintiff applied his mind at the time to moving the bin, but decided to proceed as he did because the bin was too heavy to move. The appellant submits that there is no evidence to support that implication in such findings, and it argues that the absence of any reference by the plaintiff to the presence of the bin in giving a history to the doctors or to his expert witness on liability demonstrates that the weight of the bin is an ex post facto justification for not moving the bin. The appellant also says that the judge failed to weigh the difficulty in moving the bin against the unreasonably dangerous manner in which the plaintiff acted in leaning over to lift the extinguisher. 12 In response, the plaintiff (who seeks to retain his judgment against the appellant as occupier because — for reasons identified later — that judgment is greater than the judgment he obtained against his employer) does not suggest that he had expressly stated he had not moved the bin because of its weight, but he has submitted that there was sufficient evidence to support such an implication. He agreed that it was his job to inspect the location of the fire extinguishers — the "whole aspect", he added. He said on many occasions during his evidence that the presence of the bin restricted or hindered his access and so obliged him to lean over in order to lift the extinguisher off the wall and down. He said that there as no other way of obtaining a proper lift. He agreed that, if the bin had not been there, he would have had no problem lifting the extinguisher off the wall and down. 13 However, the only statement by the plaintiff which even refers to the weight of the bin was in this question and answer in cross-examination: Q. Now the fact is that you didn't make any attempt to move that bin, did you? A. No, just looking at it you could see it would have been too heavy. Both the plaintiff and the employer (who seeks to retain its order against the appellant for contribution) have placed considerable emphasis on this question and answer. But it was followed by this question and answer: Q. And the reason you didn't attempt to move it is because you didn't think it posed any hazard to you in lifting that fire extinguisher? A. That's right. There was no re-examination in relation to that answer, which was consistent with an earlier answer in cross-examination: Q. Well, couldn't you have gone outside and said, look there's a bin,… I'm here to service the fire extinguisher, I can't get at it and get someone to move it for me? A. No, I thought I'd be able to reach over and get it without injury. The plaintiff commented that he had not thought at the time that the bin would restrict him as much as it did. When asked about the bin, the plaintiff reflected that he would not have been able to move it because it was full of metal. He agreed that he had not attempted to lift it to see how heavy it was. 14 In this context, there was no reasonable inference available from the first question and answer quoted in the last paragraph that the weight of the bin played a part in the plaintiff's decision to lean over the bin to lift the extinguisher off the wall and down to service it. The plaintiff has nevertheless submitted that the inference is available from his appreciation that his access to the extinguisher was impeded and that the bin was heavy. I do not agree. 15 I am satisfied that, notwithstanding the cumulative effect of all of those arguments put by the plaintiff and the employer, there was no evidence on which the judge could have found that the weight of the bin played any part in the plaintiff's decision to lean over the bin to lift the extinguisher off the wall and down. In those circumstances, it was inappropriate for the judge to have referred to the plaintiff's decision to proceed in the agony of the moment. That criticism nevertheless does not lead to an acceptance of the appellant's argument that the weight of the bin was an ex post facto justification by the plaintiff for not moving the bin. It was simply no part of his evidence that he had not moved the bin because of its weight. Nor does the error by the judge vitiate the finding that there was no contributory negligence (against which there has been no appeal), because of the clear finding made by the judge that the plaintiff had been unaware of the risk of injury involved in the course he took. 16 The appellant has argued that the judge's error in finding that the weight of the bin played a part in the plaintiff's decision to proceed as he did also affects his finding that the appellant is liable in damages to the plaintiff. It is not specifically made clear in the judge's reasons whether the references he made to the weight of the bin were intended to relate the issue of the occupier's liability or to the issue of the plaintiff's contributory negligence. In their context, they appear to have been directed to the issue of contributory negligence and, as I say later, the judge appears to have relied on the presence of the bin (more than its weight) in relation to the appellant's liability as the causa sine qua non for the plaintiff's injury. However, the appellant is correct in submitting that that the erroneous (if implicit) finding — that the weight of the bin played a part in the plaintiff's decision to proceed as he did — was not available to support the judgment against the appellant as the occupier. 17 The next issue raised by the appellant in its submissions relates to the judge's finding that it was under an obligation to keep the extinguisher unimpeded for maintenance. This finding is said to conflate two different obligations — one to persons needing to use the extinguisher in a fire and the other to those whose job it was to service it. The appellant says that, in order to fulfil the first obligation, it retained the fire extinguisher service company to alert it to any shortfalls in its fire protection. In those circumstances, the appellant has argued, it owed no duty to ensure that the service company's employees appreciated a problem which it was their duty to detect. In my opinion, such an argument is somewhat disingenuous. Subject to what is said in the following paragraph, the occupier of premises owes to persons entering those premises to service its equipment the usual duty of care owed to an invitee. 18 A better point raised by the appellant is that the extent of its obligation to those who are to service the extinguishers is not the same as its obligation to those who need to use them in a fire. The appellant has argued that it was not reasonably foreseeable that an employee of the specialist service company retained to service the extinguisher would lean over the bin to lift the extinguisher off the wall and down in a manner which would expose him to an unreasonable risk of injury. Where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind. The authorities for that proposition are collected in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 (see also 38). 19 It is not suggested that the fact that the plaintiff was an employee of an independent contractor denies the application of that proposition to him as well. If therefore the presence of the bin can be regarded as a defect in the premises, the appellant was entitled to assume that the plaintiff would be able to safeguard himself against its presence. That is indeed exactly what the judge held in the present case, when he said: The [occupier] could expect that in the circumstances … a properly trained employee would either seek assistance or … not service that extinguisher until the obstruction was removed. The judge nevertheless went on to qualify the application of that statement on the basis that, because the bin was heavy, it "tempted" the plaintiff to work around it. He had earlier said that the problem lay in the fact that the bin was small but heavy; it was small enough to be able to reach over. It was submitted by both the plaintiff and the employer that this qualification to the principle stated in Papatonakis was justified because an occupier owes a duty of care even to a skilled contractor-entrant who may be careless or who injures himself as a result of misjudgment. 20 Various decisions of this Court were referred to in support of that submission, but most of them contain discussions of the different factual situations involved without any relevant statements of principle. The decision put forward which is the closest to the situation in the present case is that of A V Jennings Ltd v Thomas [2004] NSWCA 309 In that case, the occupier had given the plaintiff, a carpet layer contractor, a key to a building site door which gave access by way of a staircase leading to a temporary building in which the carpets he was to clean were located. He had not used this means of access before. As a result of wet weather, there were a number of holes in the steps which were obscured from view by mounds of dirt. The holes were not visible until standing directly over them. The trial judge had held that this was not a case where injury resulted from a readily visible defect or hazard placed in his path of travel (see par [9.6]). The Court held (at par [33]) that it was obviously reasonably foreseeable that these defects created a risk of injury to entrants, and that it would not be a reasonable conclusion for the occupier to decide that the foreseeable risk to contractor-entrants using the steps was adequately dealt with by leaving it to the contractors to solve the problem of safe access for themselves. The Court also held (at pars [40] – [42]) that the plaintiff's use of the steps which led to his injury was a misjudgment, that allowance must be made for inadvertence on the part of entrants, and that an occupier owes a duty of care even to careless entrants. The appeal against the plaintiff's successful claim was dismissed. 21 The injury in that case arose in an entirely different context to that which obtains in the present case. The independent contractor in that case was on his way to the place where he was to carry out his specialised work. He was not involved in that specialised work at the time he was attempting to gain access to the premises in accordance with the instructions the occupier had given him. In the present case, the plaintiff was injured in the course of carrying out his specialised work. The decision in Jennings does not justify the qualification which the judge imposed on the proposition stated in Papatonakis. 22 Reference was also made to Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 at [84], where it was held that, in certain circumstances, an entrepreneur may owe a general duty of care to an independent contractor. That was a case where reasonable care on the part of the entrepreneur affected both the way in which the work was undertaken by the contractor and the safety of the worksite in which the work was undertaken, and where, by reason of the degree of control the entrepreneur exercised over the worksite and the system of work adopted, the contractor was as reliant on the entrepreneur for his safety as any employee was. It was held that the relationship of proximity between the two in that case gave rise to the duty of care owed by an employer to provide the contractor with a safe place and system of work. That is not the present case, where in any event the bin was readily visible to the plaintiff. 23 The appellant has drawn the Court's attention to a decision of the High Court given since this appeal was heard: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19. The plaintiff in that case delivered bread to the occupiers' store as an independent contractor. Access to the loading dock was frequently impeded by the occupier's waste disposal bins which had been left there by the local council after emptying them. It was the occupier's obligation to move the bins away from the loading dock, but delivery drivers frequently moved them when the occupier had failed to do so. They did so because they believed that it saved them some time. The plaintiff had previously complained to the occupier that she was unable to move the bins herself without a risk of injury. When she attempted to move the bins on the occasion in question because the occupier had failed to do so, she injured her back. The High Court upheld the trial judge's finding that the occupant owed the plaintiff a duty of care to avoid that risk of injury. 24 There is a superficial similarity between that case and the present case in at least some respects, but in my view the High Court's decision is distinguishable. The basis on which the High Court held that the occupier owed a duty of care to the plaintiff as an independent contractor in that case was that she had entered the premises for a mutual commercial purpose, and was required to conform to certain systems and procedures established by the occupier (par [3]). The purposes for which, and the circumstances in which, the plaintiff was on the occupier's land was held to have constituted a significant aspect of the relationship between them. The delivery system established by the occupier to which the plaintiff was required to conform directed her when, where, and by what method she was to deliver. The High Court held that, since the occupier had established the system to which the appellant was required to conform, its duty covered not only the static condition of the premises but also the system of delivery (par [26]). As the occupier had established and maintained the system to be followed, the High Court said, its obligation to exercise reasonable care for the safety of persons who came onto its premises extended to exercising reasonable care that its system did not expose persons who made deliveries in accordance with that system to an unreasonable risk of physical injury. It was reasonable to require the occupier to have delivery drivers who entered the premises for a mutual commercial purpose in contemplation as persons who might be put at risk by its choice of facilities and procedures for delivery (par [27]). 25 Just as in the Rockdale Beef case, the relationship between the occupier and the independent contractor in the Thompson case went beyond that contemplated in Papatonakis v Australian Telecommunications Commission (par [25] – [26]). The relationship between the occupier and the plaintiff did not do so in the present case. The recent decision of the High Court does not assist the appellant. 26 The characterisation given by the plaintiff in the present case to the matters to which the judge referred in that qualification — that the bin was small but heavy, small enough to reach over, and thus tempting the plaintiff to do so — as constituting a "trap" was inappropriate. In no sense was the bin in this case a trap to a properly trained employee of a specialist service company, or even an unusual danger of which warning should have been given by the appellant to such an entrant. The presence of the bin in this case is, for example, entirely unlike the defective wire which the occupier in Papatonakis had, without the knowledge of the plaintiff, substituted for the much stronger Telecom wire on which the plaintiff was depending for the support of his ladder. In the present case, the plaintiff agreed that, when he reached out and took hold of the extinguisher, he knew just how far he had to reach over to lift it off the wall and down. If he had been properly instructed by his employer in the specialised work the plaintiff was sent to the appellant's premises to perform, that knowledge would have removed any hidden risk of injury in lifting this extinguisher in the way he did. 27 The presence of the bin became relevant to the plaintiff's injuries only because the plaintiff undertook a procedure which, unknown to him through the negligence of his employer, involved a risk of injury to himself. The judge appears to have relied on the presence of the bin as a causa sine qua non for the plaintiff's injury. He approached the issue of the appellant's liability as an occupier on the basis that the extinguisher was not sufficiently accessible to the plaintiff because the presence of the bin changed the angle at which he had to lift it off the wall when he took its weight, thus rupturing the disc in his lower spine. 28 There is no doubt that, but for the presence of the bin, the plaintiff would not have been injured, but that does not automatically make its presence a cause of the injuries he received. In every case, it is necessary to determine causation by the application of common sense to the facts of that particular case: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515, 523-523, 530-531. In the present case, common sense dictates that the real cause of the plaintiff's injuries was the employer's failure to train the plaintiff properly in relation to lifting heavy weights and to warn him of a risk of injury of which he may otherwise have been unaware. In my opinion, the judge erred in finding the appellant liable as the occupier of the premises. 29 It may well have been a very different case had another person who sought to use the extinguisher in a fire and had to lean over the bin to lift the extinguisher off the wall and down for that purpose. The judge's approach may have been a valid one if applied to persons other than an employee of the specialist service company retained to service the extinguisher. See, for example, Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43 at [18]. 30 I would accordingly uphold the appellant's appeal against the judgment. The issue which must now be resolved is the nature of the consequential orders to be made. 31 After the trial judge had delivered his reasons for judgment, the parties were directed to resolve a number of subsidiary calculations relating to damages. One of the issues to be resolved was the effect on the damages to be awarded against the plaintiff's employer of the provisions of the Workers Compensation Act 1987 (Part 5, Division 3) limiting the damages which a worker may recover at common law from his employer. As a result of these provisions, such damages are usually less than those which may be recovered from a joint or concurrent tortfeasor who is not the plaintiff's employer. 32 Either at the request of the parties or with their consent (and perhaps as a result of an interpretation given to s 151Z of that Act), the judge directed the entry of judgment against each defendant for the full amount of the damages which he had assessed after the amount of contribution which the other defendant had been ordered to make had been deducted. The usual order is to enter judgment for the full amount of the damages awarded against each joint or concurrent tortfeasor (allowing separate orders for contribution to take effect), so that, if the judgment against one joint or concurrent tortfeasor is reversed on appeal, or if that tortfeasor is unable to satisfy the judgment, the plaintiff may recover the full amount of the judgment against the other joint or concurrent tortfeasor. 33 The problem raised by an appeal disputing liability brought by the occupier (but not the employer) in such a situation was ventilated during the hearing of the application by the appellant for leave to appeal, heard by this Court (differently constituted) last year. The plaintiff was granted leave by that Court to file a cross-appeal against his employer to recover the full amount permitted by the Workers Compensation Act in the event that the occupier's appeal was successful. After discussion with the parties at the conclusion of this appeal, it was stated on behalf of the Court (as presently constituted) that, in the event the occupier's appeal were successful, it was proposed to order that the judgment entered in the District Court be amended to reflect the full amount which each defendant was obliged by that Court to pay the plaintiff, without regard to the extent of the contribution ordered, and (if relevant) to order the other defendant to contribute the relevant amount. There was no dissent from that course being followed. 34 Because of the unusual way in which the judgment was directed to be entered at the trial, no order was made at the trial on the cross-claims filed by each of the defendants against the other claiming contribution as joint or concurrent tortfeasors. The occupier's cross-claim also claimed indemnity based in contract. It has been agreed between the two defendants that, in the event that the occupier's appeal is successful, the cross-claim filed by the occupier should be dismissed with costs. There have been no submissions made by either of the defendants in relation to the costs of the employer's cross-claim against the occupier but, as the occupier has now been found to be not liable to the plaintiff, it is appropriate that it, too, be dismissed with costs. 35 The parties have filed written submissions as to the orders to be made for the other costs in the proceedings in the event that the employer's appeal is alternatively successful and unsuccessful. Costs usually follow the event, which would mean that in this case, as a start, the successful occupier should be paid its costs both of the trial (including its costs of the cross-claims made for contribution) and of the appeal. The employer, however, has submitted that each party should pay its own costs of the appeal because each had acquiesced in the technically deficient orders made by the trial judge when directing the entry of judgment, thus necessitating the cross-appeal brought by the plaintiff against it for the balance of the amount which the judge should have directed the entry of judgment against it. That cross-appeal has played no part of any significance in the appeal. I would therefore make orders for the occupier to be paid its costs of both the trial and the appeal against the plaintiff, who has, in the event, been unsuccessful in relation to the occupier in both the trial and the appeal. 36 The more complex question which arises is whether the plaintiff is entitled to obtain a "Bullock" order, requiring the unsuccessful defendant to pay him the costs which have been awarded against him in favour of the successful defendant: Bullock v London General Omnibus Co [1907] 1 KB 264. This is a frequently litigated issue, and the cases show many differences in expression and emphasis according to the circumstances of the different cases. The authority most directly relevant is the decision of the High Court in Gould v Vaggelas (1985) 157 CLR 215, where it was held (at 229-230, 232, 246-247, 260) — applying the Bullock case and Johnsons Tyne Factory Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 566, 572-573 — that the test is whether the costs payable by the plaintiff to the successful defendant were reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant; it must have been reasonable for the plaintiff to have joined the successful defendant by reason of some conduct on the part of the unsuccessful defendant such as to make it fair to impose a liability on it for the costs of the successful defendant. See also Steppke v National Capital Development Commission (1978) 21 ACTR 23 at 30-31, which was approved in Gould v Vaggelas (at 230). Any conduct by the unsuccessful defendant, or any state of affairs in which the unsuccessful defendant is an integral part, which makes it fair and reasonable for the successful defendant to be joined will be relevant to the application of that test: Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156, per Priestley JA at [7] – [8]. The fact that different causes of action were pleaded against each of the two defendants in the present case does not exclude the making of a "Bullock" order: Gould v Vaggelas (at 231, 247). 37 Both the plaintiff and the occupier have argued for a "Bullock" order in this case. The employer has opposed such an order. In my view, it was reasonable for the plaintiff to have joined the occupier as a defendant in his action as a matter of necessary prudence in the circumstances of this particular case: the occupier's ultimate success has depended on the interpretation of the evidence given at the trial which was in some respects finely balanced, albeit clear in its effect in the end. It has not been argued to the contrary. 38 The factors identified as making it fair to impose on the employer a liability for the occupier's costs of the trial are that it (the employer) resisted the plaintiff's claim against it, notwithstanding the clear liability established, and it sought to blame the occupier, pursuing its claim for contribution against the occupier. After initially filing a submitting appearance in the appeal, the employer actively resisted the occupier's appeal in order retain the contribution found in the employer's favour at the trial. 39 The employer puts forward four reasons why it would be unfair to it to make it liable for the occupier's costs: (i) By definition, an unsuccessful defendant will in every case have denied liability to the plaintiff, and thus its denial is irrelevant. I do not accept that the denial is irrelevant, as in every case such a denial is fundamental (although not sufficient by itself) to a finding that it was reasonable to have joined the successful defendant as a party. (ii) The claim for contribution was a "formality" to enable an apportionment in the event that both defendants are held liable. However, long experience suggests that, if the plaintiff had not joined the occupier in a case such as the present, the employer would have joined the occupier as a third party in order to seek contribution. If it had done so, it would have had to pay the occupier's costs in the event that the occupier was found not to be liable, as has now occurred. (iii) There was no suggestion of any element of doubt such as existed in Stevedoring Industry Finance Committee & Ors v Gibson (1998) 20 NSWCCR 417 at 463-468. That may be so, but the availability of a "Bullock" order in any particular case does not depend on its circumstances matching the circumstances of that case. Moreover, that was a case in which the defendants were sued in the alternative; in the present case, it was reasonable in the circumstances for the plaintiff to have sued both defendants, the causes of action against each being different, and they were not sued in the alternative. (iv) The employer says that the plaintiff's reason for joining the occupier in the trial was to receive the greater damages which could be recovered from a non-employer defendant, and his reason for resisting the occupier's appeal was to retain the higher damages which he had been awarded. As the additional amount awarded was slightly less that $9000, it is a little difficult to accept that it would have played a substantial part in the plaintiff's opposition to the appeal. On the other hand, the amount involved in the employer's cross-claim against the occupier was potentially very much more substantial. The amount which the employer was seeking to retain in the appeal was more almost $72,000. 40 It is possible that the prospect of gaining greater damages may have played at least some part in the decision of the plaintiff to join the occupier as a defendant and to have resisted the occupier's appeal, but that possibility does not, in my view, render it unfair to the employer to make it liable for the costs of the occupier in the circumstances of this case. I would accordingly make a "Bullock" order in favour of the plaintiff. 41 Notwithstanding the "Bullock" order and the fact that the employer is insured, the order for costs should include the usual grant of a certificate to the plaintiff under the Suitors Fund Act 1951, if he is eligible, to guard against the event (no longer unimaginable) that the employer's insurer does not pay the costs ordered. 42 Accordingly, I propose that the following orders be made: 1. The judgment entered in the District Court is amended: (i) by substituting for the amount of $251,235.20 (as the amount the first defendant, as the plaintiff's employer, was ordered to pay to the plaintiff) the amount of $314,044.01; and (ii) by substituting for the amount of $71,711.20 (as the amount the second defendant, as the occupier, was ordered to pay to the plaintiff) the amount of $322,946.41. 2. The appeal by the second defendant is allowed, the judgment entered against it in favour of the plaintiff is set aside; in lieu thereof, judgment is directed to be entered for the second defendant on the plaintiff's claim. 3. As to the costs in both the trial and the appeal — (i) the plaintiff is to pay the costs of the second defendant (and, if eligible, he is to have a certificate under the Suitors Fund Act 1951); and (ii) the first defendant is to pay the plaintiff's costs (such costs to include the costs of the second defendant which the plaintiff has been ordered to pay). 4. The cross-claim by each defendant against the other defendant for indemnity or contribution is dismissed with costs. 5. The cross-appeal by the plaintiff against the first defendant is dismissed with no order as to costs. - -------------------------------------------- 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.