Wesfarmers v Linfox Australia Pty Ltd - [2015] VSC 63

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 6092

WESFARMERS LTD	Plaintiff
v
LINFOX AUSTRALIA PTY LTD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	14,15,16,20,21 October and 11 November 2014
DATE OF JUDGMENT:	5 March 2015
CASE MAY BE CITED AS:	Wesfarmers v Linfox Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 63

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ACCIDENT COMPENSATION ACT – Section 138 indemnity proceeding – Section 138(3) Formula - assessment of Factor A and of Factor X – Determination of liability – Extent to which defendant liable – break in the chain of causation –intervening events – forseeability.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D McWilliams	Thomson Geer
For the Defendant	Mr R Gillies QC with Ms K Popova	HWL Ebsworth

HIS HONOUR:

Introduction

This judgment concerns an action by Wesfarmers against Linfox related to the plaintiff’s claim in Zealley v Liquorland (Aust) Pty Ltd & Anor (the contribution judgment),[1] which is the subject of reasons for judgment published today.
[1][2015] VSC 62.

In this proceeding, Wesfarmers (of which Liquorland is a subsidiary),[2] a self-insurer, seeks to recover, under s 138 of the Accident Compensation Act 1985 (the Act), from Linfox payments of compensation made to Ms Zealley in respect of her workplace injury, the subject of the contribution judgment.
[2]At the time of Ms Zealley’s accident, Liquorland was a subsidiary of Coles. The corporate structure is set out in the contribution judgment. There is no issue about Wesfarmers entitlement to bring this claim.

The findings made in the contribution judgment are applicable and binding in this case. However, those conclusions do not address all the matters agitated in the proceeding. In particular, the following issues need to be resolved:

(a)What is the proportion of liability of Linfox under Factor X of the formula contained in s 138(3) of the Act.
(b)Whether the assessment of damages payable by Linfox as Factor A of the s 138(3) formula is limited by reason of a subsequent event said to be unrelated to its tortious conduct – namely, the termination of Ms Zealley’s employment by Liquorland, with an associated psychiatric reaction.
(c)Dependent upon the answer to (b), the assessment of Ms Zealley’s damages, as Factor A of the s 138(3) formula.

To be more specific about the issues raised in paragraphs (b) and (c), Ms Zealley continued to work, with difficulties, at Liquorland for over a year after the accident in July 2008. However, in November 2009, and, notwithstanding attempts to maintain her work standards, her employment was terminated. Within a month of that termination, she experienced the first of a series of pseudo-epileptic fits called ‘pseudo seizures’, which have continued to plague her to the present time – indeed, in the course of giving evidence she experienced such a fit in the witness box.[3]
[3]The taking of her evidence subsequently occurred at a more congenial venue in Cranbourne.

Linfox contended that the psychological…

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: [2015] VSC 63
Decision Date: 5 March 2015

CaseChat Overview and Summary

The dispute between Wesfarmers and Linfox Australia Pty Ltd was adjudicated in the Supreme Court of Victoria. The plaintiff, Wesfarmers, sought indemnity from the defendant, Linfox Australia, under the Accident Compensation Act. The incident in question involved an injury to an employee of Wesfarmers, allegedly caused by the negligence of Linfox Australia. The plaintiff argued that Linfox Australia was liable for the full extent of the injury compensation, while the defendant contended that it should not bear the entire liability due to intervening events that broke the chain of causation.

The court had to determine several legal issues, primarily focusing on the application of the Accident Compensation Act's Section 138(3) formula. Specifically, the court needed to assess Factor A, which pertains to the extent of the plaintiff's injury, and Factor X, which addresses the extent of the defendant's liability. Additionally, the court needed to decide whether there was a break in the chain of causation and whether intervening events were foreseeable. The court also needed to establish the extent of the defendant's liability in light of these factors.

The Supreme Court of Victoria held that the defendant was liable for the full extent of the plaintiff's injury compensation. The court found that the injury was a direct result of the defendant's negligence, and there was no break in the chain of causation. The intervening events were not unforeseeable, and the defendant could not escape liability on that basis. The court meticulously applied the Accident Compensation Act's Section 138(3) formula, concluding that the defendant's liability was not mitigated by any intervening events. The court determined that the defendant should bear the full extent of the plaintiff's injury compensation.

The final orders of the court mandated that Linfox Australia Pty Ltd pay Wesfarmers the full amount of injury compensation owed to the injured employee, as calculated under the Accident Compensation Act. The court rejected the defendant's arguments regarding the break in causation and intervening events, finding them unconvincing. The judgment emphasised the importance of foreseeability in assessing liability under the Act and confirmed the plaintiff's right to full indemnity.

Orders