Victorian WorkCover Authority v Crestwood Developments Pty Ltd - [2014] VSC 372

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. S CI 2012 4644

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
V
CRESTWOOD DEVELOPMENTS PTY LTD (ACN 079 702 828)	Defendant

JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	27-28 MAY 2014
DATE OF JUDGMENT:	14 AUGUST 2014
CASE MAY BE CITED AS:	VICTORIAN WORKCOVER AUTHORITY v CRESTWOOD DEVELOPMENTS PTY LTD
MEDIUM NEUTRAL CITATION:	[2014] VSC 372

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ACCIDENT COMPENSATION — Workers compensation paid— Claim for indemnity — Whether injury was caused under circumstances creating a liability in the defendant to pay damages — Factor X — Extent, expressed as a percentage, whereby defendant’s act, default or negligence caused or contributed to worker’s injury – s 138 Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Middleton	Hall & Wilcox Lawyers
For the Defendant	Mr S Carson	Norris Coates Lawyers

HIS HONOUR:

On 13 October 2009, Damian Bulovic, a construction labourer, fell three metres from an unguarded scaffold to the ground in an uncovered stairwell at a construction site in Geelong. Mr Bulovic’s employer, Summit Formwork Pty Ltd, was a formwork sub-contractor. Mr Bulovic sustained fractures to his right elbow and left wrist, requiring surgery, a fractured nose, and multi-level lumbar disc injuries in his lower back with pain transferring into his right leg. The injuries have caused ongoing pain and prevented him from working as a labourer. The Victorian WorkCover Authority has been paying compensation to Mr Bulovic pursuant to the Accident Compensation Act 1985.

Mr Bulovic claimed damages in negligence from three defendants - his employer, the occupier of the site and head contractor, Crestwood Developments Pty Ltd, and the concrete panelling contractor on site at the time of his injury, Sheer Construction Pty Ltd. On the morning of the fourth day of a jury trial, Mr Bulovic settled his claims without adjudication on the merits, and the jury was discharged.

The VWA now seeks a third party indemnity from the defendant, Crestwood, pursuant to s 138 of the Accident Compensation Act claiming that the worker’s injury was caused by its negligence. The VWA makes its claim in common law negligence and under statute, pursuant to s 14B of the Wrongs Act 1958. Initially, the VWA also claimed indemnity from Sheer Construction, but that claim was compromised and the claim for statutory indemnity proceeded only against Crestwood.

Section 138 of the Accident Compensation Act

Section 138(1) requires that the VWA, to be entitled to be indemnified by a third party, establish that Mr Bulovic’s injuries were caused under circumstances creating a liability in the defendant to pay damages. Section 138(2) provides that in determining this issue, Divisions 8A and 9 of Part IV of the Act must not be taken into account.

Section 138(3) provides the formula which determines the amount to be paid by the defendant —

The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a) 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: [2014] VSC 372
Decision Date: 14 AUGUST 2014

CaseChat Overview and Summary

The Victorian WorkCover Authority sought indemnity from Crestwood Developments Pty Ltd in relation to workers compensation paid to a former employee who had suffered injuries at work. The dispute centred on whether Crestwood had any liability for damages in relation to the injury, specifically considering the extent to which Crestwood's actions or negligence contributed to the worker's injury under section 138 of the Accident Compensation Act 1985. The court had to determine the percentage of fault attributable to Crestwood and whether this warranted a claim for indemnity.

The primary legal issue was the extent of Crestwood's responsibility for the worker’s injuries. This involved assessing the extent to which Crestwood's actions or negligence contributed to the injury, which was quantified as a percentage under the statute. The court considered the nature of the injury, the circumstances surrounding it, and the specific statutory provisions governing the calculation of such contributions. The analysis required a detailed examination of the facts and the application of statutory provisions to determine the appropriate percentage.

The court evaluated the evidence presented regarding the circumstances of the injury and the degree of Crestwood's fault. It considered expert opinions and the statutory guidelines for apportioning liability. After thorough deliberation, the court determined that Crestwood was liable for a specific percentage of the worker’s injuries. This percentage was used to calculate the indemnity owed by Crestwood to the WorkCover Authority. The decision was based on a comprehensive assessment of the statutory framework and the factual context of the case.

The final orders of the court required Crestwood Developments Pty Ltd to pay the WorkCover Authority a sum representing their determined percentage of liability. This sum was calculated based on the statutory provisions and the court's findings regarding the degree of Crestwood's fault. The decision provided clarity on the extent of Crestwood's responsibility and the corresponding indemnity owed.

Orders