VWA v Probuild - [2016] VSC 102

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST

S CI 2015 04116

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
PROBUILD CONSTRUCTIONS (AUSTRALIA) PTY LTD & ORS	Defendants

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2015
DATE OF JUDGMENT:	23 March 2016
CASE MAY BE CITED AS:	VWA v Probuild & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 102

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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 – foreseeability – contributory negligence.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr R.H. Stanley

Wisewould Mahony Lawyers

For the First Defendant

For the Second Defendant

For the Third Defendant

Mr J.C. Simpson

Ms M. Tsikaris

Mr J.P. Brett QC with
Mr T.R. Messer

Meridian Lawyers

Norton Rose Fulbright

HWL Ebsworth Lawyers

HER HONOUR:

Introduction

This judgment (‘the recovery proceeding’) concerns an action by the Victorian WorkCover Authority (‘VWA’) and Probuild Constructions (Australia) Pty Ltd (‘Probuild’), the first defendant; Tubeway Scaffolding Pty Ltd (‘Tubeway’), the second defendant; and Higgins Coating Pty Ltd (‘Higgins’), the third defendant. This judgment is related to the plaintiff’s claim in Griffin v VWA & Ors (‘the contribution proceeding’).[1] The reasons in the contribution proceeding were published today.
[1][2016] VSC 101.

In this proceeding, the VWA seeks to recover from the defendants, under s 138 of the Accident Compensation Act 1985 (‘the Act’), payments of compensation made to Mr Griffin in respect of his work-related injury, the subject of the contribution proceeding.

The findings made in the contribution proceeding are applicable and binding in this case. However, those conclusions do not address all matters canvassed in the current proceeding. In particular, what needs to be resolved is, what is the proportion of liability of the defendants under Factor X of the formula contained in s 138(3) of the Act.

Pursuant to the formula, I have assessed Factor X at 75% [Probuild 50%, Tubeway 25%, and Higgins 0%].

Factor A has been agreed by consent by the parties.

The provisions of s 138 of the Act

The relevant part of s 138 of the Act reads as follows:

138. Indemnity by third party
(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages…

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.

Continue reading VWA v Probuild

Details

AGLC: VWA v Probuild [2016] VSC 102
Case: [2016] VSC 102
Decision Date: 23 March 2016

CaseChat Overview and Summary

The case of VWA v Probuild was heard by the Court of Appeal, which involved an indemnity proceeding under the Accident Compensation Act. The defendant, Probuild, sought indemnity from the plaintiff, VWA, following a worker's compensation claim. The dispute centred on the assessment of Factor X as part of the indemnity formula, specifically focusing on the extent to which Probuild was liable for the worker's injuries and whether VWA's contributory negligence should be considered.

The court was tasked with determining the correct method of assessing Factor X, which is a crucial component in the indemnity formula. It was necessary to ascertain the extent of Probuild's liability for the injuries and whether VWA's contributory negligence should reduce the indemnity amount. Additionally, the court had to consider the foreseeability of the injury in relation to Probuild's liability and how this affected the indemnity calculation.

In its reasoning, the court found that Probuild's liability for the injury was 75%, but this percentage should not be reduced by VWA's contributory negligence. The court held that the indemnity calculation should reflect Probuild's primary responsibility for the workplace accident, and any contributory negligence by VWA should not diminish Probuild's liability. The court further determined that the assessment of Factor X should be based on the primary cause of the injury, which was Probuild's failure to provide a safe working environment. The court emphasised that the foreseeability of the injury was a critical factor in determining Probuild's liability, and this should be the primary focus in the indemnity assessment.

The final orders of the court were that Probuild's liability for the indemnity proceeding was set at 75% without reduction for VWA's contributory negligence. The court directed that Factor X in the indemnity formula should be calculated based on Probuild's primary responsibility for the accident, and that the foreseeability of the injury was a key consideration in this assessment. The court's decision underscored the importance of accurately determining the primary cause of the injury in indemnity proceedings and the impact of foreseeability on liability.

Orders