Lotter v Salmon Street Ltd - [2006] VSC 495

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4140 of 2004

BETWEEN

DOREEN LOTTER (IN HER CAPACITY AS EXECUTRIX OF THE ESTATE OF JOSEPH LOTTER)	Plaintiff
and
SALMON STREET LTD (ACN 004 125 197)	Defendant
and
VERO INSURANCE LTD (ACN 005 297 807)	Third Party

AND

No. 5705 of 2004

BETWEEN

CYNTHIA RAE BLACK JONES (AS EXECUTRIX OF THE ESTATE OF DONALD FERGUSON)	Plaintiff
and
COMMONWEALTH OF AUSTRALIA	Firstnamed Defendant
and
SALMON STREET LTD (ACN 004 125 197)	Secondnamed Defendant
and
CATERPILLAR OF AUSTRALIA PTY LTD (ACN 004 332 469)	Thirdnamed Defendant
and
J C HUTTON PTY LTD (ACN 004 057 023)	Fourthnamed Defendant
and
VERO INSURANCE LIMITED (ACN 005 297 807)	Third Party

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2006
DATE OF JUDGMENT:	15 December 2006
CASE MAY BE CITED AS:	Lotter v Salmon Street Ltd and Anor
MEDIUM NEUTRAL CITATION:	[2006] VSC 495

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SURVIVAL OF ACTIONS AFTER DEATH OF PLAINTIFF – Deceased an employee exposed to asbestos – Onset of symptoms after cessation of employment – Proceeding instituted in lifetime – Plaintiff dies before completion of proceeding – Estate entitled to recover damages for pain and suffering and loss of expectation of life by reason of Administration and Probate (Dust Diseases) Act 2000 – Workers’ compensation policy – Whether covered liability of employer where liability arose after policy ceased – Nature of proceeding after death – Section 29 Administration and Probate Act 1958 – Not a statutory cause of action – Whether liability to pay damages under 2000 Act was at common law or under the Act – Liability at common law – Insurer liable under policy -Application of Section 71A of Workers Compensation Act 1958 to impose liability on insurer – Section 71A not applicable.

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APPEARANCES:	Counsel	Solicitors
For the Defendant Salmon Street Limited (both proceedings)	Mr R. Gorton Q.C. with Mr D. Masel	Phillips Fox
For the Third Party (both proceedings)	Mr M. O’Loghlen Q.C. with Mr D. Brookes	Dibbs Abbott Stillman

TABLE OF CONTENTS

Parties................................................................................................................................................... 1

Proceedings Compromised.............................................................................................................. 2

Issues.................................................................................................................................................... 2

Common Law Rule Precluding Proceeding After Death........................................................... 5

Law Changed...................................................................................................................................... 7

Law Changed in State of Victoria................................................................................................... 8

The 2000 Amendment...................................................................................................................... 16

Workers’ Compensation Policy..................................................................................................... 18

Section 71A Workers Compensation Act1958............................................................................. 23

Conclusion......................................................................................................................................... 34

HIS HONOUR:

Before the Court are two proceedings instituted by writ, which raised a common question and were heard together. Each proceeding involved a defendant seeking indemnity from an insurer joined as a third party, in respect to damages paid to an estate of a deceased worker who had been employed by the defendant. The defendant and the insurer were the same in each proceeding.

Parties

The first proceeding (“the Lotter proceeding”) was instituted on 16 January 2004 by Joseph Lotter against the defendant, Salmon Street Ltd (“Salmon Street”). Mr Lotter was employed by Salmon Street from April 1955 until August 1985, and during the course of his employment he was exposed to and…

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.

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Details

Case: [2006] VSC 495
Decision Date: 15 December 2006

CaseChat Overview and Summary

The case of Lotter v Salmon Street Ltd involves the estate of the deceased, who was exposed to asbestos during his employment. The deceased instituted a proceeding for damages during his lifetime, but he died before the proceeding was completed. The estate sought to recover damages for pain and suffering and loss of expectation of life under the Administration and Probate (Dust Diseases) Act 2000. The dispute centres on whether the employer's liability insurance policy covered the employer's liability for the deceased's exposure to asbestos, particularly as the liability arose after the policy ceased. Additionally, the court needed to determine the nature of the proceeding post-death and whether the liability to pay damages was at common law or under the 2000 Act.

The legal issues before the court were twofold: first, whether the employer's liability insurance policy covered the employer's liability for the deceased's exposure to asbestos, and second, whether the liability to pay damages was at common law or under the 2000 Act. The court examined the provisions of Section 29 of the Administration and Probate Act 1958 and concluded that the proceeding was not a statutory cause of action. Further, the court determined that the liability to pay damages was at common law, not under the 2000 Act. This finding was crucial because it determined the applicability of Section 71A of the Workers Compensation Act 1958, which imposes liability on the insurer. Ultimately, the court held that Section 71A did not apply to the case.

The court's reasoning led to the conclusion that the insurer was liable under the policy terms for the employer's liability for the deceased's exposure to asbestos. This determination was based on the finding that the liability arose at common law. The court's decision ensured that the estate could recover the damages for pain and suffering and loss of expectation of life from the insurer. The final orders of the court were that the insurer was liable to the estate of the deceased for the damages claimed, and Section 71A of the Workers Compensation Act 1958 did not apply to impose liability on the insurer.

Orders