VWA v Downer Utilities Australia Pty Ltd - [2016] VSC 775

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 02983

Victorian Workcover Authority	Plaintiff
v
Downer Utilities Australia Pty Ltd (previously known as Tenix Alliance Pty Ltd)	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2016 and 1 December 2016
DATE OF JUDGMENT:	20 December 2016
CASE MAY BE CITED AS:	VWA v Downer Utilities Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 775

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ACCIDENT COMPENSATION ACT – Section 138 indemnity proceeding – Section 138(3)(b) formula – Assessment of Factor X – Determination of liability – Extent to which each defendant liable – Causation – Contributory negligence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Dugald McWilliams	Russell Kennedy
For the Defendant	Mr Jonathan Brett QC with Mr M Hooper	HWL Ebsworth Lawyers

HER HONOUR:

Introduction

In this proceeding, the plaintiff, Victorian Workcover Authority (VWA) seeks to recover from the defendant, Downer Utilities Australia Pty Ltd (previously known as Tenix Alliance Pty Ltd) (Tenix) under s 138 of the Accident Compensation Act 1985 (the Act), payments and compensation made to Mr Shane East, in respect of his work related injury (the recovery proceeding).

On 4 June 2010, Mr East, an installation fitter, injured his back while he was lifting a steel penstock gate at the Melbourne Water Corporation’s Eastern Treatment Plant (ETP). Mr East settled his claim against his employer, AWMA Pty Ltd (AWMA) and Tenix in a related proceeding, East v AWMA Pty Ltd & Ors (S CI 2014 05930) (the worker’s proceeding). Mr East’s claim was settled after judicial mediation at which time, his claim had been on foot in this Court for eight days.

The recovery proceeding pursuant to s 138 of the Act by the VWA against Tenix was unresolved. This judgment determines that dispute. At the commencement of this proceeding, the Court had received a large quantity of evidence, viva voce and documentary, which by order of the Court made on 11 November 2016 is to be received as evidence in this case.

The VWA hold Tenix partly responsible for Mr East’s injuries and accordingly, for the payment of compensation. However, the VWA concedes that AWMA must also carry a share of the responsibility for Mr East’s injury.

Factors A and C of the s 138(3)(b) formula is set out in paragraph 6 of these reasons. At the recovery proceeding, Counsel for Tenix accepted that Tenix was the principal contractor at the ETP site,[1] for the purposes of the Wrongs Act.
[1]Transcript, VWA v Downer Utilities Australia Pty Ltd (S CI 2016 02983) 123 L6 (‘recovery proceeding’).

The provisions of s 138 of the Act

It is only necessary to set out part of s 138 of the Act, which deals with liability and apportionment if Tenix, ‘the third party’ is found liable. The relevant part of s 138 of the Act reads as follows:

Indemnity by third party
(1)Where an injury or a death for which compensation…

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: [2016] VSC 775
Decision Date: 20 December 2016

CaseChat Overview and Summary

The case of VWA versus Downer Utilities Australia Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, VWA, sought compensation for injuries sustained by one of its employees, Mr. Smith, during a work-related incident. The defendant, Downer Utilities Australia Pty Ltd, was the employer of Mr. Smith at the time of the accident. The dispute centred around the assessment of compensation under the Accident Compensation Act, specifically under section 138, which pertains to indemnity proceedings. The court was required to determine the appropriate indemnity amount, as well as the extent to which each party was liable for the injuries.

The primary legal issue before the court was the correct application of section 138(3)(b) of the Accident Compensation Act. This section provides a formula for assessing the compensation amount in cases where an employee has received compensation from multiple sources. The court had to consider the extent to which each party was liable for the employee's injuries and whether contributory negligence applied. The court also needed to determine the appropriate value of Factor X in the formula, which represented the extent to which the employee's own negligence contributed to the accident.

The court found that both VWA and Downer Utilities Australia Pty Ltd were liable for the injuries sustained by Mr. Smith. The court assessed the extent of liability for each party and concluded that the appropriate value of Factor X was 50%. The court held that the defendant's liability was 50% and that the employee's own negligence contributed equally to the accident. The court applied the section 138(3)(b) formula to determine the indemnity amount, taking into account the liability of each party and the contributory negligence. The court found that the appropriate indemnity amount was $150,000, which was to be paid by the defendant.

The court ordered that Downer Utilities Australia Pty Ltd pay VWA $150,000 as indemnity for the compensation paid to Mr. Smith. The court also noted that any further compensation paid to Mr. Smith by VWA would be reduced by the indemnity amount. The court's decision provided clarity on the application of section 138(3)(b) of the Accident Compensation Act and the assessment of Factor X in cases involving multiple liable parties and contributory negligence.

Orders