Victorian WorkCover Authority v Asixa Pty Ltd - [2010] VSC 467

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6028 of 2008

BETWEEN

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
And
ASIXA PTY LTD (ACN 072 971 101)	First Defendant
And
SIMON TRANSPORT PTY LTD (ACN 009 898 159)	Second Defendant
And
CSR VIRIDIAN LIMITED (ACN 006 904 052) (FORMERLY KNOWN AS “PILKINGTON (AUSTRALIA) LIMITED”)	Third Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 23-27 August, 28-30 September, 1 October, 4-6 October 2010
DATE OF JUDGMENT:	21 October 2010
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Asixa Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 467

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ACCIDENT COMPENSATION – Compensation paid by Authority to injured worker – Entitlement to indemnify from negligent third parties – Assessment of indemnity – Worker suffering major hypoxic brain injury – Assessment of life expectancy of injured worker – Griffiths v Kerkemeyer damages - Assessment of general damages – Whether injured worker has awareness of condition – Discount for vicissitudes applicable to claim for loss of future earnings during “lost years” – Whether notional claim for damages by injured worker takes into account costs of management of fund of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Noonan SC and Ms B Knoester	Wisewoulds Mahony
For the First Defendant	Mr J Ruskin QC and Mr A Clements	Minter Ellison
For the Second Defendant	Mr J Ruskin QC and Mr A Clements	DLA Phillips Fox
For the Third Defendant	Mr J Ruskin QC and Mr A Clements	Wotton Kearney

HIS HONOUR:

On 14 July 2006, Wally Hidalgo suffered catastrophic injuries as a result of an accident in which he was involved in the course of his employment. As a consequence, the plaintiff, Victorian WorkCover Authority (“VWA”), pursuant to its obligations under the Accident Compensation Act 1985 (“the Act”), has made substantial payments of compensation to and on behalf of Mr Hidalgo. In these proceedings, the plaintiff claims indemnity from the three defendants, pursuant to s 138 of the Act, in respect of the compensation paid by it to and on behalf of Mr Hidalgo, and also indemnity for future payments of compensation, which the plaintiff may be required to make to or on behalf of Mr Hidalgo as a result of the accident.

Wally Hidalgo was born on 16 May 1985, and thus, at the time of the accident, was 21 years of age. He migrated to Australia from the Philippines with his parents and two older siblings in 1992. At the time of his accident, he was in the third, and final, year of a business commerce course at Victoria University, Footscray. He was also working part time with Black and White Recruitment Solutions Pty Ltd.

At the time of the accident, Wally Hidalgo was working at the premises of the first defendant, Asixa Pty Ltd, at Quantum Close, Dandenong South. On the day of the accident, a very large glass sheet, which was contained within a wooden crate, was delivered to…

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: [2010] VSC 467
Decision Date: 21 October 2010

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Asixa Pty Ltd, the Victorian Court of Appeal considered a dispute concerning compensation paid by the WorkCover Authority to an injured worker. The injured worker had suffered a major hypoxic brain injury. The court was required to determine various legal issues, including the entitlement of the Authority to seek indemnity from negligent third parties, the assessment of the indemnity, the life expectancy of the injured worker, and the calculation of damages under Griffiths v Kerkemeyer. The court also needed to assess whether the injured worker had awareness of their condition, the applicability of a discount for vicissitudes to the claim for loss of future earnings during the "lost years," and whether the notional claim for damages by the injured worker took into account the costs of managing the fund of damages.

The court considered the arguments presented by both parties and examined the evidence provided. It found that the injured worker had a life expectancy of 46.3 years, which was based on the evidence of expert witnesses. The court held that the injured worker had some awareness of their condition and that the discount for vicissitudes was applicable to the claim for loss of future earnings during the "lost years." The court also determined that the notional claim for damages by the injured worker did not take into account the costs of managing the fund of damages. The court assessed the damages under Griffiths v Kerkemeyer and determined that the injured worker was entitled to compensation for pain and suffering, loss of amenities, and loss of future earnings.

The court held that the WorkCover Authority was entitled to seek indemnity from negligent third parties for the compensation paid to the injured worker. The court assessed the indemnity and determined that the Authority was entitled to recover $1,178,455. The court also found that the injured worker was not entitled to recover the costs of managing the fund of damages. The court made orders accordingly, including an order that the WorkCover Authority was entitled to recover the indemnity from Asixa Pty Ltd.

Orders