| 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…
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- Case
- [2010] VSC 467
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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