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Doughty v Martino Developments Pty Ltd

Doughty v Martino Developments Pty Ltd

Case [2010] VSCA 121 2 June 2010

Accident Compensation

Statutory Interpretation

Contract Formation

Insurance Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

JOHN DOUGHTY	S APCI 2008 3913
	Appellant
v
MARTINO DEVELOPMENTS PTY LTD (ACN 005 477 690)	Respondent

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JUDGES	NETTLE and MANDIE JJA and EMERTON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 May 2010
DATE OF JUDGMENT	2 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 121
JUDGMENT APPEALED FROM	[2008] VSC 517 (Vickery J)

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ACCIDENT COMPENSATION – Transport accident – Right of employer to recover damages resulting from death of employee – Whether action per quod servitium amisit extinguished in relation to transport accidents – Transport Accident Act 1986, s 93(1).

STATUTES – Construction – Interpretation – Amending legislation – Whether intention of Parliament to abolish action per quod servitium amisit – Petricola v Metropolitan Transit Authority (1989) Aust Torts Reports 80–247, referred to.

WORDS AND PHRASES – ‘In respect of’.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P H Solomon	Solicitor for the TAC
For the Respondent	Mr R P Gorton QC with Mr J P Gorton	Burt & Davies

NETTLE JA:

The question for determination in this appeal is whether s 93(1) of the Transport Accident Act 1986 prevents an employer recovering damages per actione per quod servitium amisit for the loss of services of an employee injured as a result of a transport accident occurring on or after the commencement of s 34 of the Act.

At relevant times,[1] s 93 of the Act provided as follows:
[1]The section was later amended, but such that the amendment does not apply to proceedings instituted before the date of amendment, by the addition of a new sub-section (1A), as follows:
(1A) For the avoidance of doubt, it is hereby declared that the effect of subsection (1) is that any person, whether or not a natural person, cannot recover any damages in any proceedings to which that subsection applies unless the person is a natural person in which case the natural person can only bring proceedings in accordance with this section to recover damages in respect of the injury sustained by him or her or the death of a person specified in subsection (1).

93. Actions for damages
(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
(2)A person who is injured as a result of a transport accident may recover damages in respect of the injury if –
(a)the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and

(b) the injury is a serious injury.

(3) If –
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b) the degree so determined is 30 per centum or more –
the injury is deemed to be a serious injury…

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 Doughty v Martino Developments Pty Ltd

Details

AGLC: Doughty v Martino Developments Pty Ltd [2010] VSCA 121
Case: [2010] VSCA 121
Decision Date: 2 June 2010

CaseChat Overview and Summary

The case of Doughty v Martino Developments Pty Ltd involved a dispute concerning the right of an employer to recover damages resulting from the death of an employee in a transport accident. The plaintiff, Doughty, sought to claim compensation for the loss of services from the employer, Martino Developments Pty Ltd, following a transport accident that led to the employee's death. The High Court of Australia was tasked with determining the validity of such a claim under the Transport Accident Act 1986. Specifically, the court had to decide whether the action per quod servitium amisit, which pertains to the loss of services of an employee, had been extinguished by the Act in relation to transport accidents.

The central legal issue before the court was whether the Transport Accident Act 1986 had abolished the employer's right to claim damages for the loss of services caused by the death of an employee in a transport accident. This involved interpreting section 93(1) of the Act and determining if the legislative intent was to exclude this particular common law action. The court considered the broader context of amending legislation and its effect on existing common law rights. It also referenced the decision in Petricola v Metropolitan Transit Authority, where the court had previously examined the implications of the Transport Accident Act on common law rights.

The court concluded that the Transport Accident Act 1986 did not explicitly or implicitly abolish the employer's right to claim damages for the loss of services of an employee. The court found that the legislative intent was to provide a comprehensive statutory scheme for compensation in transport accidents, but it did not extend to extinguishing common law claims unless expressly stated. Therefore, the employer retained the right to claim damages for the loss of services of the deceased employee. The reasoning was grounded in a detailed interpretation of the statutory language and the context of the legislative amendments.

Orders