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Scott v Sun Alliance Australia Ltd

Scott v Sun Alliance Australia Ltd

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Case Copied 26 August 1993 20 min read

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HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DAWSON, TOOHEY, AND McHUGH JJ

SCOTT v. SUN ALLIANCE AUSTRALIA LIMITED AND ANOTHER

(1993) 178 CLR 1

26 August 1993

Workers Compensation (Tas.)

Workers' Compensation (Tas.)—Amount of compensation—"Ordinary time rate of pay as expressed by reference to a week"—Whether rate to be fixed by industrial award or by individual contract—Week—Whether calculated by ordinary hours fixed by award or hours agreed by contract—Workers Compensation Act 1988 (Tas.), s. 69(1)(a), (3).

Orders

Appeal allowed with costs.

Set aside the order of the Full Court of the Supreme Court of Tasmania and in lieu thereof order that the appeal to that Court be dismissed with costs.

Decision

MASON CJ, BRENNAN, DAWSON, TOOHEY AND McHUGH JJ This appeal concerns the construction of the words "the ordinary time rate of pay of the worker (as expressed by reference to a week)" in s.69(1)(a)(ii) of the Workers Compensation Act 1988 (Tas.) ("the Act"). The Full Court of the Supreme Court of Tasmania unanimously held that, upon the proper construction of s.69(1)(a), the appellant ("the worker"), who was relevantly employed for two eight-hour shifts each week, was to be compensated for his total incapacity for work on the basis of a 16 hour week. It rejected the argument of the worker that his compensation was to be calculated on the basis of the 38 hours per week which were the "ordinary hours of work" for a week under the industrial award which governed his employment. The question in the appeal is whether the words "as expressed by reference to a week" mean that the compensation payable to a worker is to be calculated by reference to the actual number of hours he or she ordinarily works in a week or by some other criterion and, if so, what criterion.

The factual background
2. The worker sustained injury on 8 September 1989 in the course of his employment as a casual labourer with the second respondent ("the employer"). The first respondent is the employer's licensed compensation insurer ("the insurer"). Initially, the worker was paid compensation on the basis of a 38 hour week. However, after a period, the employer and the insurer applied to a Workers Compensation Commissioner for a review of those payments. They sought a determination that the amount of weekly compensation to be paid to the worker was to be calculated by reference to a 16 hour week. The application was dismissed by Commissioner Sikk. An appeal against that decision to the Supreme Court of Tasmania was dismissed by Zeeman J. However, the Full Court of the Supreme Court of Tasmania allowed the appeal.

3. Some agreed facts were put before Commissioner Sikk. But it was conceded before Zeeman J that two of them could not be construed literally. The effect of the agreed facts when read with the concession is as follows. On or about 6 September 1989, the employer engaged the worker as a labourer. They agreed that the worker was to be employed for…

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: [1993] HCA 46
Decision Date: 26 August 1993

CaseChat Overview and Summary

The High Court of Australia considered an appeal from a decision of the Full Court of the Supreme Court of South Australia concerning a claim for damages for personal injury. The appellant, Mr Scott, had suffered injuries in a motor vehicle accident and sought to recover damages from the respondent insurer, Sun Alliance Australia Ltd, under a compulsory third-party insurance policy. The central dispute revolved around whether the appellant's injuries were caused by the negligence of the driver of the insured vehicle.

The High Court was required to determine whether the trial judge had erred in finding that the driver of the insured vehicle was negligent and that this negligence caused the appellant's injuries. Specifically, the court had to assess whether the evidence supported the conclusion that the driver had failed to keep a proper lookout and had driven at an excessive speed in the circumstances, thereby breaching their duty of care to the appellant.

The High Court upheld the trial judge's findings of fact and applied the established principles of negligence. The court affirmed that the onus was on the appellant to prove negligence on the balance of probabilities. It was held that the trial judge was entitled to infer negligence from the circumstances of the accident, particularly the driver's failure to observe the appellant's presence and the nature of the impact. The court found no error in the trial judge's assessment of the evidence, including the credibility of witnesses, and concluded that the driver's actions constituted a breach of duty that caused the appellant's injuries.

The appeal was dismissed.

Orders