Quito Pty Ltd t/as Benara Nurseries v Insurance Commission of Western Australia - [2001] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: QUITO PTY LTD t/as BENARA NURSERIES -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2001] WADC 58

CORAM: NISBET DCJ

HEARD: 5 FEBRUARY 2001

DELIVERED : 15 MARCH 2001

FILE NO/S: CIVO 75 of 2000

BETWEEN: QUITO PTY LTD t/as BENARA NURSERIES
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Insurance - Employer's indemnity - Workers' Compensation & Rehabilitation Act 1981 s 92(b) - Employer's right to indemnity in respect of worker's compensation payments paid to injured employee recovering damages from statutory insurer pursuant to policy of third party motor vehicle insurance

Legislation:

Workers' Compensation & Rehabilitation Act 1981

Result:

Action fails

Representation:

Counsel:

Plaintiff: Mr M L Greenland
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Greenland Brooksby
Defendant: John G Staude

Case(s) referred to in judgment(s):

Co-operative Bulk Handling Limited v The State Government Insurance Commission (1990) 3 WAR 145
Hacai Pty Ltd v Rigil Kent Pty Ltd & Ors; unreported; SCt of WA; Library No 960450; 16 August 1996
Leigh v Quito Pty Ltd t/as Benara Nurseries [2000] WADC 38
State Electricity Commission of Western Australia v Morrison (1950) 52 WALR 25
Xpolitos and Another v Sutton Tools Pty Ltd (1977) 13 ALR 575

Case(s) also cited:

Nil

NISBET DCJ: This is the return of an originating summons whereby the plaintiff seeks an order that the defendant, as the plaintiff's insurer, pay it $31,218.04 by way of part indemnity against the liability of the plaintiff to Gavin Dean Leigh pursuant to a judgment in this Court delivered 11 February 2000. The judgment referred to is that of Leigh v Quito Pty Ltdt/as Benara Nurseries [2000] WADC 38.
The parties brought in a minute of agreed facts which states as follows:
"1.Mr Leigh, whilst an employee of the plaintiff, was injured in the course of his employment on 20 March 1990 and has suffered a disability.
2.In respect of the disability workers' compensation weekly payments and statutory allowances were paid to and on behalf of Mr Leigh by the plaintiff, reimbursed by the plaintiff's insurer, Mercantile Mutual Insurance (Workers' Compensation) Limited ("Mercantile Mutual"), to a total sum of $31,218.04 ("the workers' compensation sum").
2A.The only entity with any liability to make payments of workers' compensation to or for Mr Leigh, under the Workers' Compensation & Rehabilitation Act 1982 (sic, 1981) (as amended) was the plaintiff.
3.Mr Leigh brought an action for damages against the plaintiff in this Court. The defendant and Mercantile Mutual were joined as third parties to indemnify the plaintiff.
4.In the course of that action the plaintiff agreed to an order dismissing the third party proceedings against Mercantile Mutual with no order for costs in consideration of Mercantile Mutual agreeing, inter alia, not to seek recovery of the workers' compensation sum.
5.Following the trial of the action Mr Leigh obtained judgment against the plaintiff for $345,994.71 and the defendant was ordered to indemnify the plaintiff in respect of the judgment.
6.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.

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Details

AGLC: Quito Pty Ltd t/as Benara Nurseries v Insurance Commission of Western Australia [2001] WADC 58
Case: [2001] WADC 58
Decision Date

CaseChat Overview and Summary

The plaintiff, Quito Pty Ltd trading as Benara Nurseries, sought to recover the amount of workers' compensation payments it made to an employee, Gavin Dean Leigh, following an injury he sustained in the course of employment. The defendant, the Insurance Commission of Western Australia, was the insurer of the plaintiff and had already paid the plaintiff the amount of the judgment awarded to Leigh. The plaintiff argued that the defendant was obliged to pay it the workers' compensation sum paid to Leigh as it would otherwise reap a windfall profit. The defendant contended that it was not obliged to pay the workers' compensation sum as the plaintiff had made a private arrangement with its workers' compensation insurer not to seek recovery of that sum.

The court was required to decide whether the defendant was obliged to pay the workers' compensation sum to the plaintiff. The legal issues were whether the defendant's obligation to indemnify the plaintiff extended to the workers' compensation payments made by the plaintiff, and whether the private arrangement between the plaintiff and its workers' compensation insurer affected the defendant's liability.

The court held that the defendant was not obliged to pay the workers' compensation sum to the plaintiff. The court found that the legislative scheme of the Workers' Compensation & Rehabilitation Act 1981 was designed to prevent double compensation for the same injury. The court held that the defendant's liability was to indemnify the plaintiff for the sums for which it was actually due and liable to pay. The private arrangement between the plaintiff and its workers' compensation insurer did not affect the defendant's liability as it had already paid the plaintiff the amount of the judgment awarded to Leigh.

The plaintiff's claim was dismissed.

Orders