FAI Traders Insurance Co Ltd v Price - [1999] NSWCA 425

CITATION: FAI Traders Insurance Co Ltd v Price & Ors [1999] NSWCA 425

FILE NUMBER(S): CA 40005/98

HEARING DATE(S): 17 September 1999

JUDGMENT DATE:
10 December 1999

PARTIES :

Appellant- FAI Traders Insurance Co Ltd
Respondent 1- Peter Price
Respondent 2- WorkCover Authority
Respondent 3- Tommy Tortoise Removals

JUDGMENT OF: Meagher JA at 1; Stein JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : CC1429/94

LOWER COURT JUDICIAL OFFICER: Moran CCJ

COUNSEL: Appellant: R.E. Williams QC, G. Linney
Respondent1( Price): J.D Hislop QC
Respondent 2 (WorkCover): S.Grawshaw SC & F Davis
Respondent 3 (Tommy Tortoise):S. G. Campbell

SOLICITORS: Appellant: Hunt & Hunt
Respondent 1 (Price):Carroll & O'Dea
Respondent 2 (Workcover):Nick Vrabac
Respondent 3 (Tommy Tortoise) : A.O. Ellison & Co.

CATCHWORDS: Personal injury; in the course of employment; territorial restriction of employer's insurance policy; extent of liability of NSW Workcover authority

ACTS CITED:
Workers Compensation Act 1987 ( NSW)
Workers Compensation Act 1951 (ACT)
Workers' Compensation Act 1928 (VIC)
Workers Compensation Legislation Act 1995(NSW)
Compensation Court Act 1984(NSW)

CASES CITED:
Union Steamship Company of Australia Pty Ltd v King (1988)CLR 1
Pearce v Florenca (1976)135 CLR 507
Mynott v Barnard (1939)62 CLR 68
Awdejew v Walkerden Bros. (1958)76 WN 176
WorkCover Authority (NSW) v Billpat Holdings (1995)11 NSWCCR 565
GRE Workers' Compensation Insurance (NSW) Ltdv Nohil Pty Ltd (1996)13 NSWCCR 74
Liverpool & London Globe Insurance Co. Ltd v J.W. Deaves Pty Ltd [1971]2 NSWLR 131

DECISION: 1. That the appeal by FAI Traders Insurance Company Limited and the cross-appeal by Peter Price be allowed; 2. That the following awards and orders be set aside; the award in favour of Tommy Tortoise Removals (Aust) Pty Ltd against FAI Traders Insurance Company Limited; the order that FAI Traders Insurance Company Limited pay the costs of the proceedings of Tommy Tortoise Removals (Aust) Pty Ltd; the award in favour of the WorkCover Authority of NSW; 3. that in lieu thereof, it be ordered; that, subject to the hearing and determination of the cross-appeal brought by Tommy Tortoise Removals (Aust) Pty Ltd, there be an award in favour of Peter Price against the WorkCover Authority of NSW; that the third party proceedings against FAI Traders Insurance be dismissed.; that Tommmy Tortoise Removals (Aust) Pty Ltd pay the costs below of FAI Traders Insurance Company Limited.; 4. That Tommy Tortoise Removals (Aust) Pty Ltd pay the costs of the appeal of FAI Traders Insurance Company Limited and of Peter Price and that no order be made as to the costs of the appael of the WorkCover Authority of NSW; 5. That the cross-appeal by Tommy Tortoise Removals (Aust) Pty Ltd be reserved; 6.That liberty to apply be reserved; Council should bring in short minutes within 7 days

IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTY
COURT OF APPEAL
CC No. 1429 of 1994
CA No 40005 of 1998
MEAGHER JA
STEIN JA
DAVIES AJA
10 NOVEMBER 1999

FAI TRADERS INSURANCE CO Limited V Peter…

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 FAI Traders Insurance Co Ltd v Price

Details

AGLC: FAI Traders Insurance Co Ltd v Price [1999] NSWCA 425
Case: [1999] NSWCA 425
Decision Date: 10 December 1999

CaseChat Overview and Summary

The dispute before the Court of Appeal of New South Wales concerned the extent of an employer's insurance liability for a personal injury sustained by an employee in the course of employment, particularly in light of a territorial restriction within the employer's insurance policy and the role of the NSW WorkCover Authority. The parties involved were FAI Traders Insurance Company Limited (FAI), Peter Price (the injured employee), and the WorkCover Authority of NSW.

The central legal issues before the court were to determine the extent of FAI's liability under its insurance policy, given the territorial limitations specified within it, and to clarify the liability of the WorkCover Authority of NSW in relation to the employee's injury. The court was required to consider how these factors interacted to determine which entity, if any, was ultimately responsible for compensating the injured employee.

The Court of Appeal allowed the appeal by FAI and the cross-appeal by Peter Price, setting aside previous awards and orders. In lieu of these, the court ordered that, subject to the determination of a cross-appeal by Tommy Tortoise Removals (Aust) Pty Ltd, there would be an award in favour of Peter Price against the WorkCover Authority of NSW. The third-party proceedings against FAI were dismissed, and Tommy Tortoise Removals (Aust) Pty Ltd was ordered to pay the costs below of FAI. The court also made orders regarding the costs of the appeal.

Orders

Orders of the court

1. That the appeal by FAI Traders Insurance Company Limited and the cross-appeal by Peter Price be allowed; 2. That the following awards and orders be set aside; the award in favour of Tommy Tortoise Removals (Aust) Pty Ltd against FAI Traders Insurance Company Limited; the order that FAI Traders Insurance Company Limited pay the costs of the proceedings of Tommy Tortoise Removals (Aust) Pty Ltd; the award in favour of the WorkCover Authority of NSW; 3. that in lieu thereof, it be ordered; that, subject to the hearing and determination of the cross-appeal brought by Tommy Tortoise Removals (Aust) Pty Ltd, there be an award in favour of Peter Price against the WorkCover Authority of NSW; that the third party proceedings against FAI Traders Insurance be dismissed.; that Tommmy Tortoise Removals (Aust) Pty Ltd pay the costs below of FAI Traders Insurance Company Limited.; 4. That Tommy Tortoise Removals (Aust) Pty Ltd pay the costs of the appeal of FAI Traders Insurance Company Limited and of Peter Price and that no order be made as to the costs of the appael of the WorkCover Authority of NSW; 5. That the cross-appeal by Tommy Tortoise Removals (Aust) Pty Ltd be reserved; 6.That liberty to apply be reserved; Council should bring in short minutes within 7 days

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	FAI Traders Insurance Co Ltd v Price & Ors [1999] NSWCA 425
FILE NUMBER(S):	CA 40005/98
HEARING DATE(S):	17 September 1999
JUDGMENT DATE:	10 December 1999
PARTIES :	Appellant- FAI Traders Insurance Co Ltd Respondent 1- Peter Price Respondent 2- WorkCover Authority Respondent 3- Tommy Tortoise Removals
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC1429/94
LOWER COURT JUDICIAL OFFICER:	Moran CCJ

COUNSEL:	Appellant: R.E. Williams QC, G. Linney Respondent1( Price): J.D Hislop QC Respondent 2 (WorkCover): S.Grawshaw SC & F Davis Respondent 3 (Tommy Tortoise):S. G. Campbell
SOLICITORS:	Appellant: Hunt & Hunt Respondent 1 (Price):Carroll & O'Dea Respondent 2 (Workcover):Nick Vrabac Respondent 3 (Tommy Tortoise) : A.O. Ellison & Co.
CATCHWORDS:	Personal injury; in the course of employment; territorial restriction of employer's insurance policy; extent of liability of NSW Workcover authority
ACTS CITED:	Workers Compensation Act 1987 ( NSW) Workers Compensation Act 1951 (ACT) Workers' Compensation Act 1928 (VIC) Workers Compensation Legislation Act 1995(NSW) Compensation Court Act 1984(NSW)
CASES CITED:	Union Steamship Company of Australia Pty Ltd v King (1988)CLR 1 Pearce v Florenca (1976)135 CLR 507 Mynott v Barnard (1939)62 CLR 68 Awdejew v Walkerden Bros. (1958)76 WN 176 WorkCover Authority (NSW) v Billpat Holdings (1995)11 NSWCCR 565 GRE Workers' Compensation Insurance (NSW) Ltdv Nohil Pty Ltd (1996)13 NSWCCR 74 Liverpool & London Globe Insurance Co. Ltd v J.W. Deaves Pty Ltd [1971]2 NSWLR 131
DECISION:	1. That the appeal by FAI Traders Insurance Company Limited and the cross-appeal by Peter Price be allowed; 2. That the following awards and orders be set aside; the award in favour of Tommy Tortoise Removals (Aust) Pty Ltd against FAI Traders Insurance Company Limited; the order that FAI Traders Insurance Company Limited pay the costs of the proceedings of Tommy Tortoise Removals (Aust) Pty Ltd; the award in favour of the WorkCover Authority of NSW; 3. that in lieu thereof, it be ordered; that, subject to the hearing and determination of the cross-appeal brought by Tommy Tortoise Removals (Aust) Pty Ltd, there be an award in favour of Peter Price against the WorkCover Authority of NSW; that the third party proceedings against FAI Traders Insurance be dismissed.; that Tommmy Tortoise Removals (Aust) Pty Ltd pay the costs below of FAI Traders Insurance Company Limited.; 4. That Tommy Tortoise Removals (Aust) Pty Ltd pay the costs of the appeal of FAI Traders Insurance Company Limited and of Peter Price and that no order be made as to the costs of the appael of the WorkCover Authority of NSW; 5. That the cross-appeal by Tommy Tortoise Removals (Aust) Pty Ltd be reserved; 6.That liberty to apply be reserved; Council should bring in short minutes within 7 days