JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2008
DATE OF JUDGMENT:	27 November 2008
CASE MAY BE CITED AS:	Martino Developments v Doughty
MEDIUM NEUTRAL CITATION:	[2008] VSC 517

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ACCIDENT COMPENSATION – Transport Accident - Transport Accident Act1986 (Vic) – scheme of the Act - construction of s 93 – whether per quod servitium amisit actions extinguished in relation to transport accidents - meaning of ‘Person’ first mentioned in s 93(1) – meaning of “in respect of” in s 93

TORT - per quod servitium amisit action - history and current application in Australia

STATUTES – General principles of construction – Abrogation of common law rights by statute - the rule in Potter v Minahan considered - use of an amending bill in statutory interpretation - meaning of ‘Person’ first mentioned in s 93(1) Transport Accident Act1986 (Vic) – meaning of “in respect of” in s 93 (1) Transport Accident Act1986 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R P Gorton QC with Mr J P Gorton	Burt & Davies
For the Defendant	Mr P Solomon	Solicitor to the Transport Accident Commission

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Approach to Statutory Interpretation............................................................................................. 2

Abrogation of Common Law Rights by Statute – the Rule in Potter – Approach to Statutory Construction.......................................................................................................................................................... 6

Use of an Amending Act as an Aid to Interpretation............................................................... 10

The Per Quod Action at Common Law........................................................................................ 14

Transport Accident Compensation Scheme under the Act...................................................... 23

The Text of s 93 of the Act.......................................................................................................... 30
The Meaning of ‘Person’ First Mentioned in s 93(1).............................................................. 33
The Meaning of “in respect of”................................................................................................. 36

Object and Purpose of the Act....................................................................................................... 39

Conclusion......................................................................................................................................... 44

HIS HONOUR:

Introduction

The Plaintiff employer has commenced proceedings in the County Court of Victoria claiming damages suffered by it as a result of a motor vehicle accident which caused injury to its employee. The issue which arises for determination in this case is whether the cause of action per quod servitium amisit relied upon by the Plaintiff has been extinguished in Victoria by s 93 of the Transport Accident Act 1986 (‘the Act’).

This matter comes before the Court as a preliminary trial of separate questions which arise in the proceeding. On 26 August 2008 I ordered, pursuant to r. 47.04 of the Supreme Court (General Civil Procedure) Rules 2005, that a preliminary trial on two stated questions be conducted. The preliminary trial proceeded on the assumption that the facts alleged by the Plaintiff in its Statement of Claim were true, together with certain additional agreed facts.

In essence the agreed facts pleaded in the Statement of Claim were as follows: the Plaintiff, Martino Developments Pty Ltd (“Martino Developments”) is a proprietary company which carries on business as a property developer. On 15 November 2000…

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 Martino Developments Pty Ltd v Doughty

Details

AGLC: Martino Developments Pty Ltd v Doughty [2008] VSC 517
Case: [2008] VSC 517
Decision Date: 27 November 2008

CaseChat Overview and Summary

Martino Developments Pty Ltd v Doughty is a case before the Court of Appeal of the Supreme Court of Victoria, which addresses the question of whether the common law action for per quod servitium amisit, also known as the loss of services action, has been extinguished by the statutory compensation scheme for transport accidents established under the Transport Accident Act 1986 (Vic). Martino Developments, the appellant, sought to recover damages for the loss of services of its employee who was injured in a transport accident, arguing that the statutory scheme did not encompass such claims. The respondents, Doughty and the Transport Accident Commission, contended that the statutory scheme comprehensively replaced common law claims for transport accidents.

The central legal issues before the court were whether the Transport Accident Act 1986 (Vic) had abolished per quod servitium amisit actions in relation to transport accidents, and if so, whether the statutory scheme applied to the loss of services of an employee injured in such accidents. The court needed to interpret the meaning of the term "Person" in section 93(1) of the Act and the phrase "in respect of" as it pertains to the loss of services claim. The case required an analysis of the legislative intent behind the Act and the principles of statutory interpretation, particularly the abrogation of common law rights by statute.

In its judgment, the Court of Appeal held that the statutory compensation scheme under the Transport Accident Act 1986 (Vic) had indeed extinguished common law claims for per quod servitium amisit in relation to transport accidents. The court found that the term "Person" in section 93(1) included an employee and that "in respect of" the employee's injury meant that the statutory scheme applied to the loss of services claim. The court also considered the historical context of the loss of services action and its current application in Australia. It concluded that the statutory scheme provided a comprehensive and exclusive remedy for all losses arising from transport accidents, including the loss of an employee's services.

The Court of Appeal dismissed Martino Developments' appeal and affirmed the decision of the trial judge that the statutory compensation scheme under the Transport Accident Act 1986 (Vic) extinguished common law claims for the loss of services of an employee injured in a transport accident. The court's interpretation of the statutory language and legislative intent was pivotal in reaching this conclusion.

Orders