Metropolitan Transit Authority v Ivanovski

The applicant, Metropolitan Transit Authority, sought special leave to appeal from a decision of the Full Court of the Supreme Court of Victoria. The respondent, Ivanovski, had suffered an injury in the course of his employment as a cleaner, which was not a transport or journey accident. He received a payment of $7973 under section 98 of the Accident Compensation Act. The trial judge assessed his common law damages at $25,000 but refused to reduce this sum by the amount paid under section 98, either under section 135(3A) of the Act or according to common law principles. The Full Court subsequently set aside the trial judge's assessment and substituted a higher assessment, also without taking the section 98 payment into account.

The primary legal issue before the High Court was whether the payment made to the respondent under section 98 of the Accident Compensation Act should be treated as a subvention in reduction of common law damages. The applicant contended that this was the sole argument it sought to advance. A related issue was whether the Full Court had properly considered this argument in its reassessment of damages, given that no mention of it appeared in their judgments.

The applicant argued that the payment under section 98, which provided for specific benefits for certain injuries akin to a table of maims, should be considered a subvention that ought to reduce the common law damages awarded. This argument was presented to the Full Court, although the applicant conceded that the notice of appeal might not have explicitly raised it. The applicant submitted that even if not formally raised in the notice of appeal, it was a matter that had to be taken into account in the assessment of damages. The Full Court, however, did not appear to have taken this payment into account in its reassessment.