Popovic v Murray - [1990] TASSC 51

Serial No 48/1990
List "A"

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Popovic v Murray [1990] TASSC 51; (1990) Tas R 158; A48/1990

PARTIES:  POPOVIC
  ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
  v
  MURRAY
  LEA BROOK HOLDINGS PTY LTD

FILE NO/S: FCA 106/1989
JUDGMENT

APPEALED FROM Popovic And Electrolytic Zinc Company Of Australasia Ltd
v Murray and Lea Brook Holdings Pty Ltd B22/1989

DELIVERED ON:              19 September 1990
DELIVERED AT:                Hobart
JUDGMENT OF:                 Cox, Underwood and Zeeman JJ

Judgment Number: A48/1990
Number of paragraphs: 50

Serial No 48/1990
List "A"
File No FCA 106/1989

POPOVIC and THE ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
v MURRAY and LEA BROOK HOLDINGS PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX J
UNDERWOOD J
ZEEMAN J
19 September 1990

Order of the Court

Appeal dismissed.

Serial No 48/1990
List "A"
File No FCA 106/1989

POPOVIC and THE ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
v MURRAY and LEA BROOK HOLDINGS PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX J
19 September 1990

I agree that this appeal should be dismissed for the reasons prepared by Zeeman J
File No FCA 106/1989

POPOVIC and THE ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
v MURRAY and LEA BROOK HOLDINGS PTY LTD

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
19 September 1990

I agree with the order proposed by Zeeman J and the reasons he has expressed.
File No FCA 106/1989

POPOVIC and THE ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
v MURRAY and LEA BROOK HOLDINGS PTY LTD

REASONS FOR JUDGMENT FULL COURT

ZEEMAN J
19 September 1990

The first–named appellant (to whom I will refer to as "the appellant") was a plaintiff in the action. He claimed damages for personal injuries allegedly suffered by him whilst he was a passenger in a motor vehicle being driven by the first–named respondent. He alleged that the first–named respondent was acting as the agent of the second–named respondent and that as the result of the negligent driving of the vehicle by the first–named respondent it came into collision with another motor vehicle. The appellant claimed that he sustained personal injury in that collision. The second–named appellant (to whom I will refer to as "the employer") was the other plaintiff in the action. It sought to recover indemnity from the respondents in respect of the compensation paid by it to the appellant in respect of the injury so suffered by the appellant. That indemnity was sought pursuant to the provisions of s8H of the Workers' Compensation Act 1927.

Either expressly or by necessary implication the learned trial judge determined the issues relating to liability wholly in favour of the appellant, and those issues require no consideration. Upon this appeal, the appellant sought to attack the quantum of the damages awarded by the learned trial judge as being inadequate, and the employer contended that the extent of the indemnity granted to it was inadequate.

I deal firstly with the appeal in so far as it was brought on behalf of the appellant. The…

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.

Keep reading for free

Create a free CaseChat account to read Popovic v Murray and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1990] TASSC 51
Decision Date: 19 September 1990

CaseChat Overview and Summary

In Popovic v Murray, the Supreme Court of Tasmania dismissed an appeal brought by both the appellant and the employer. The appellant, who had been a passenger in a vehicle driven by the first respondent, claimed damages for personal injuries sustained in a motor vehicle accident. The employer, the Electrolytic Zinc Company of Australasia Ltd, sought indemnity from the respondents for compensation paid to the appellant under the Workers' Compensation Act 1927. The trial judge had found in favour of the appellant on the issue of liability but the appellant and employer appealed against the quantum of damages awarded. The Full Court found that the appellant's appeal had no merit as the trial judge's findings on the appellant's credibility were unchallenged and the medical evidence relied upon by the appellant was based on information provided by the appellant himself. As for the employer's appeal, the court found that the employer had not discharged its onus of proving that the payments it sought indemnity for were payable under the Act. The employer's claim for indemnity under s8H of the Act was limited to the weekly payments that would have been payable had there been no redemption. The appeal was dismissed.

Orders