Cocca v Salkeld (No 2) - [2014] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
COCCA v SALKELD (No 2)
[2014] SADC 157
Judgment of His Honour Judge David Smith
5 September 2014
WORKERS' COMPENSATION
Workers' Compensation – Workers Rehabilitation and Compensation Act 1986 (‘WorkCover Act’) – Plaintiff struck by motor vehicle driven by defendant whilst she was crossing road – Injury occurred in course of her employment – Plaintiff claimed and was paid compensation – Plaintiff also instituted this common law negligence action and recovered damages which were reduced by 10 per cent for her contributory negligence – WorkCover has intervened in this action and seeks to recover from the plaintiff the full amount of the compensation payments – Plaintiff contends that the amount of compensation recovered is to be reduced by 10 per cent to account for her contributory negligence – Discussion of the recovery scheme embodied in s 54(7) of the WorkCover Act and in particular the newly amended subsection (iv) of s 54(7)(d).
Held: In the case of a recovery from the plaintiff (injured party), as opposed to a recovery direct from the defendant (wrongdoer), there is no requirement that the amount recovered be reduced for contributory negligence – This case is a recovery from the plaintiff (injured party) and therefore WorkCover is entitled to recover the full amount of the compensation payments made to the plaintiff because the said amount is not in excess of the amount of damages received by the plaintiff (injured party) – Subsection (iv) of s 54(7)(d) has no application to this case which is a recovery from the plaintiff (injured party) – but rather s 54(7)(b)(iv) applies only to recoveries direct from the defendant (wrongdoer).
Workers Rehabilitation and Compensation Act 1986 (SA) s 47, s 54(7); Workers Rehabilitation and Compensation (Employer Payments) Amendment Act 2011 (SA) s 2, referred to.
Maxwell v Murphy (1957) 96 CLR 261; Paglia v Trice (1991) 56 SASR 62; Cocca v Salkeld (Unreported Judgment, District Court of South Australia 28 June 2014); Salkeld v Cocca [2013] SASCFC 138, considered.

COCCA v SALKELD (No 2)
[2014] SADC 157
Introduction

By leave of the Court, WorkCover Corporation of South Australia (‘WorkCover’) has intervened in this action. It claims a first statutory charge, pursuant to s 54(7) of the Workers Rehabilitation and Compensation Act 1986 (SA), (‘WorkCover Act’), in the sum of $46,055.16 upon the judgment sum of $213,820 awarded, in this action, in favour of the plaintiff against the defendant. WorkCover seeks this order on the basis that the extent of its entitlement should not to be reduced on account of the finding of contributory negligence of the plaintiff.
The plaintiff opposes such an order, and argues that WorkCover’s entitlement should be reduced to take account of the plaintiff’s contributory negligence. Further, the plaintiff claims that WorkCover is not entitled to recover interest it paid to the plaintiff under the WorkCover Act.
Background Circumstances
On 5 April 2007, the plaintiff was injured when she was struck by a motor vehicle driven by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cocca v Salkeld (No 2)

Details

AGLC: Cocca v Salkeld (No 2) [2014] SADC 157
Case: [2014] SADC 157
Decision Date: 5 September 2014

CaseChat Overview and Summary

The case of Cocca v Salkeld (No 2) involves the plaintiff, Cocca, who was struck by a motor vehicle driven by the defendant, Salkeld, while she was crossing the road. The incident occurred in the course of Cocca's employment. Following the accident, Cocca claimed and received workers' compensation under the Workers Rehabilitation and Compensation Act 1986 (WorkCover Act). In addition to the compensation, Cocca initiated a common law negligence action against Salkeld and recovered damages, which were subsequently reduced by 10% due to her contributory negligence. WorkCover intervened in the common law action and sought to recover the full amount of compensation payments from Cocca. Cocca argued that the compensation recovered should be reduced by 10% to account for her contributory negligence.

The primary legal issue the court needed to address was whether the compensation recovered from Cocca should be reduced by the amount of her contributory negligence under section 54(7) of the WorkCover Act. Specifically, the court examined the newly amended subsection (iv) of s 54(7)(d) and its application to this case. The court needed to determine whether the recovery scheme applied to a recovery from the plaintiff or a recovery direct from the defendant, and whether the contributory negligence should be factored into the compensation recovery.

The court held that in the context of a recovery from the plaintiff, as opposed to a recovery direct from the defendant, there is no requirement to reduce the amount recovered by the plaintiff's contributory negligence. The court concluded that this case involved a recovery from the plaintiff and thus WorkCover was entitled to recover the full amount of the compensation payments made to Cocca. The court clarified that subsection (iv) of s 54(7)(d) does not apply to recoveries from the plaintiff but rather to recoveries direct from the defendant, as per s 54(7)(b)(iv). Consequently, the full amount of the compensation payments was recoverable without reduction for contributory negligence.

Orders