CGU Insurance Limited v June Davies as Legal Personal Representative of the Estate of the Late Eric James Davies and Anor; Allianz Australia Insurance Limited v Pomfret and Anor

This case concerned appeals from decisions of the Supreme Court of Victoria concerning the interpretation of section 109 of the *Accident Compensation Act 1985* (Vic) (the Act). The primary dispute involved whether the appellants, CGU Insurance Limited and Allianz Australia Insurance Limited, were entitled to recover statutory compensation payments made to injured workers from the respondents, the legal personal representatives of the estates of deceased workers. The appellants argued that the deceased workers had been contributorily negligent, and that under section 109 of the Act, their compensation payments should be reduced by the proportion of their contributory negligence. The respondents contended that section 109 did not apply to claims for compensation made after the worker's death. The matter was heard by Bell and Keane JJ of the Supreme Court of Victoria.

The central legal issue before the Court was whether section 109 of the *Accident Compensation Act 1985* (Vic), which permits a reduction of compensation for contributory negligence, applied to claims for statutory compensation payments made by the legal personal representative of a deceased worker, where the alleged contributory negligence occurred prior to the worker's death. The Court was required to determine the scope and application of section 109 in circumstances where the claimant was no longer alive to provide evidence or defend allegations of contributory negligence.

The Court held that section 109 of the Act did not apply to claims for compensation made by the legal personal representative of a deceased worker. Their Honours reasoned that the provision was intended to operate in relation to a living claimant, allowing for a reduction in compensation based on their own fault. The Court found no statutory basis for extending this provision to a claim brought by an estate, particularly where the alleged contributory negligence predated the worker's death. The Court therefore allowed the appeals, setting aside the orders of the Supreme Court of Victoria.