Victorian WorkCover Authority v Anderson - [2000] VSC 461

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 5611 of 2000

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v.
MARY CHRISTINE ANDERSON AND ESTATE OF ANDREW WILLIAM ANDERSON (Trading as ANDERSON HELICOPTERS)	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August; 7 September; 26 October 2000
DATE OF JUDGMENT:	30 October 2000
CASE MAY BE CITED AS:	Victorian Workcover Authority v. Anderson & Anor.
MEDIUM NEUTRAL CITATION:	[2000] VSC 461

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CATCHWORDS: Accident Compensation – Death of worker in course of intrastate air journey – Claim by dependants for damages against air carrier – Whether made under Civil Aviation (Carriers' Liability) Act 1961 – Claim settled and moneys paid – Whether paid under Carriers' Liability legislation – Whether right of action under that legislation extinguished – Effect of extinguishment – Claim by Authority against air carrier for indemnity under s.138, Accident Compensation Act 1985, accident compensation having been paid to the dependants of the worker – Meaning and application of factors A and C in s.138(3)(b) in the circumstances of the case.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P.N. Rose	Wisewoulds
For the Defendants	Mr. L.R. Boyes QC with Mr. J.L. Parrish	Phillips Fox
Dependants (by leave)	Mr. P.J. Coish

HIS HONOUR:

Overview

This is a claim by the Victorian WorkCover Authority (VWA) against Mary Christine Anderson and the Estate of Andrew William Anderson for indemnity under s.138 of the Accident Compensation Act 1985 (the Act).

The claim arises out of the death of Anthony Waddell on 22 September 1993 when a helicopter operated by the late Mr Anderson and the first defendant, who then traded as Anderson Helicopters (Anderson), crashed whilst on an intrastate journey.

The deceased left a widow and children. They claimed compensation from his employer, Tooheys Brewing Company Pty Ltd, under the provisions of the Act. They were paid compensation amounting to just over $168,000.[1]
[1]That includes an amount paid for funeral expenses, and excludes interest paid on the sums awarded.

The dependants made a claim against Anderson independently of the Act. In connection with that claim, a proceeding was commenced in the County Court on 18 September 1995. Its purpose was clear: to facilitate approval of a settlement of $180,000 ‑ necessary because there were minors involved.

The compromise was approved on 24 January 1996.

It is not in dispute that the amount of the settlement was paid.

Having regard to the amount of the settlement, to correspondence which pre‑dated and post‑dated commencement of the proceeding, and to forms of release signed by the widow of 21 April 1995 and 22 November 1995, there is no doubt that the claim which the parties considered was being compromised was a claim under the Civil Aviation (Carriers' Liability) Act 1961, (the State Act). The effect of ss.4 and 5 of that Act was to make applicable to air carriage within Victoria, save as excluded or modified, the provisions of Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Commonwealth) (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

Case: [2000] VSC 461
Decision Date: 30 October 2000

CaseChat Overview and Summary

The Victorian WorkCover Authority filed a claim against an air carrier, seeking indemnity for accident compensation payments made to the dependants of a deceased worker. The deceased worker had passed away during an intrastate air journey, and his dependants had settled a claim for damages against the air carrier, receiving payment. The central legal issue was whether the payment made to the dependants fell under the Civil Aviation (Carriers' Liability) Act 1961, and if so, whether this payment extinguished any right of action by the Authority against the air carrier for indemnity under section 138 of the Accident Compensation Act 1985. Additionally, the court needed to determine the meaning and application of factors A and C in section 138(3)(b) in the context of this case.

The court examined the nature of the payment made to the dependants and concluded that it was indeed made under the Carriers' Liability Act. Given this, the court considered whether this extinguished the right of action under that legislation. The court found that the payment did extinguish the right of action, as the legislation provided for compensation to be paid to the dependants directly, thereby preventing any subsequent claim by the Authority. Furthermore, the court analysed factors A and C in section 138(3)(b), concluding that they did not alter the outcome in this context. The court's reasoning was based on the statutory framework that prioritised direct compensation to the dependants, which precluded the Authority's claim for indemnity.

The court's decision was that the right of action by the Authority against the air carrier for indemnity was extinguished by the payment made to the dependants under the Civil Aviation (Carriers' Liability) Act 1961. Consequently, the Authority's claim for indemnity was dismissed. The court's ruling was grounded in the statutory provisions that dictated the manner in which compensation should be paid, ensuring that the dependants received their entitlements directly from the carrier.

Orders