TGT Transport v Zammit - [2000] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 8302 of 1998

T.G.T. TRANSPORT

Appellant

HEATHER JEAN ZAMMIT

Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 June 2000
DATE OF JUDGMENT:	20 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 162

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Accident Compensation – Compensation payable to dependants of deceased worker – Whether worker “temporarily absent [from place of employment] … during any authorized recess” – Meaning of words considered.

Accident Compensation – Whether, in cases where injury is “deemed to arise out of or in the course of employment”, worker is required to demonstrate that the employment was “a significant contributing factor” to injury.

Accident Compensation Act 1985, s.82(2) and s.83(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.B. Bingeman Q.C. and Mr. R.W. Dyer	Dunhill Madden Butler
For the Respondent	Mr. R.P. Gorton Q.C. and Mr. G.E. Chancellor	Maurice Blackburn Cashman

WINNEKE, P.:

The respondent, Heather Jean Zammit, is the widow of Charles Zammit who died on 4 May 1997, aged 48, as the consequence of a pulmonary embolism. (I shall hereafter refer to him as “the deceased”.) The deceased had suffered a compound fracture of the right tibia and fibula at a place near Beaudesert in Queensland on 14 April 1997 in circumstances which I shall hereafter describe. As a result of that injury he had developed a deep seated thrombosis in the veins of his right calf which ultimately gave rise to the fatal embolism whilst he was at his home in Tyabb on the Mornington Peninsula. At the time of his death, he and the respondent had three children, two of whom (Mandie and Maree Jean) were still living with and dependent upon their mother and father. The eldest child, Alan, was not so dependent.

By writ issued in the County Court in January 1998 the respondent claimed compensation for herself and the two younger children pursuant to s.92 of the Accident Compensation Act 1989 (“the Act”). It was the respondent’s contention that the injury suffered by the deceased on 14 April 1997 arose out of or in the course of his employment as an interstate transport driver with the appellant “T.G.T. Transport” – a transport haulage business conducted by Tony Zammit, the deceased’s brother (whom I shall call “Tony”).

Following a trial of the issues in September 1998, the County Court assessed and awarded compensation to the respondent for the benefit of herself and the two younger children in accordance with the provisions of s.92 of the Act. The sum awarded was in the amount of $142,490.00 to which interest in the sum of $27,474.00 was added in accordance with s.92 (7) of the Act. The judge assessed these amounts on the basis that the respondent and the two children were wholly dependent upon the deceased.

It was not in issue at the trial of the proceedings that the injury suffered by the deceased had “materially contributed” to his death (s.92(1)).…

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: [2000] VSCA 162
Decision Date: 20 September 2000

CaseChat Overview and Summary

The case of TGT Transport v Zammit involved a dispute regarding compensation payable to the dependants of a deceased worker under the Accident Compensation Act 1985. The deceased worker, who was employed by TGT Transport, passed away as a result of injuries sustained in a motor vehicle accident. The central issue in this case was whether the deceased worker was considered "temporarily absent [from place of employment] … during any authorized recess" at the time of the accident and whether, in cases where an injury is deemed to arise out of or in the course of employment, the worker must demonstrate that their employment was a significant contributing factor to the injury.

The court had to interpret the meaning of "temporarily absent" and determine the extent to which employment needed to be a contributing factor to the injury for compensation to be payable. The court considered the language of the Act and previous case law to determine whether the deceased worker was temporarily absent from his employment during the accident. Furthermore, the court explored the statutory requirement that an injury must arise out of or in the course of employment to be compensable, and whether there was a need for the worker to prove that their employment was a significant contributing factor to the injury.

The court concluded that the deceased worker was not temporarily absent from his employment during the authorized recess, as the accident occurred outside of work hours and was not related to his employment. The court also held that the worker did not need to demonstrate that their employment was a significant contributing factor to the injury for compensation to be payable, as long as the injury arose out of or in the course of employment. Based on these findings, the court ruled in favour of the claimant and awarded compensation to the dependants of the deceased worker. The court's decision clarified the scope of compensation under the Accident Compensation Act 1985 and provided guidance on the interpretation of key terms within the Act.

Orders