Cocca v Salkeld (No 2)

In the matter of Cocca v Salkeld (No 2), the plaintiff, who was injured while crossing the road during her employment, had previously been awarded damages for common law negligence. The defendant was found liable and damages were assessed at $237,577, which were reduced by 10% due to the plaintiff's contributory negligence, resulting in a final judgment of $213,820. WorkCover had previously paid the plaintiff $46,055.16 in compensation under the Workers Rehabilitation and Compensation Act 1986. WorkCover sought to recover the full amount of the compensation payments from the plaintiff, while the plaintiff argued that the compensation should be reduced by 10% to account for her contributory negligence. Additionally, the plaintiff contended that WorkCover was not entitled to recover the interest it paid to her.

The central legal issue in this case was whether the amount of compensation recovered from the plaintiff by WorkCover should be reduced to account for her contributory negligence. The court needed to determine the applicability of subsection (iv) of s 54(7)(d) of the WorkCover Act in this context. The plaintiff argued that the recovery scheme embodied in s 54(7) of the Act mandated a reduction of the compensation amount due to her contributory negligence. WorkCover, on the other hand, contended that no such reduction was required as this was a recovery from the plaintiff and not the defendant.

The court held that in cases where recovery is made from the plaintiff (the injured party) rather than the defendant (the wrongdoer), there is no requirement to reduce the amount recovered for contributory negligence. The court found that this case involved a recovery from the plaintiff and not the defendant, and therefore WorkCover was entitled to recover the full amount of the compensation payments made to the plaintiff. The court also held that subsection (iv) of s 54(7)(d) of the WorkCover Act applied only to recoveries made directly from the defendant and not to recoveries made from the plaintiff. Consequently, WorkCover was entitled to recover the full amount of the compensation payments made to the plaintiff, including the interest paid under s 47 of the WorkCover Act.

In conclusion, the court found in favour of WorkCover, holding that the compensation amount recovered from the plaintiff should not be reduced to account for her contributory negligence. WorkCover was entitled to recover the full amount of the compensation payments made to the plaintiff, including interest. The parties were directed to draft a Minute of Order to implement this decision and provide for payment from the Suitors’ Fund to WorkCover. The court reserved the matter of costs for further discussion.