Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

VICTORIAN WORKCOVER AUTHORITY & ANOR APPELLANTS

AND

ESSO AUSTRALIA LTD RESPONDENT

Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53

13 September 2001

M101/2000

ORDER

1. Appeal allowed with costs. 2. Set aside order of the Court of Appeal of the Supreme Court of Victoria. 3. Matter remitted for consideration by the Court of Appeal of the Supreme Court of Victoria, consistently with the reasons of this Court, of any remaining grounds of appeal.

On appeal from the Supreme Court of Victoria

Representation:

R P Gorton QC with M F Wheelahan for the appellants (instructed by Wisewoulds)

A G Uren QC with G A Lewis for the respondent (instructed by Middletons Moore & Bevins)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Victorian WorkCover Authority v Esso Australia Ltd

Accident compensation – Workers compensation – Section 138 of the Accident Compensation Act 1985 (Vic) confers an entitlement to indemnification upon employers or insurers who have paid or are liable to pay compensation – Section 60(1) of the Supreme Court Act 1986 (Vic) provides for damages in the nature of interest in respect of any proceeding for the recovery of debt or damages – Whether a proceeding to establish amount of indemnification under s 138 is a proceeding for the recovery of debt or damages.

Words and phrases – "debt or damages".

Accident Compensation Act 1985 (Vic), s 138.

Supreme Court Act 1986 (Vic), s 60.

GLEESON CJ, GUMMOW, HAYNE AND CALLINAN JJ.

Facts

1. The first appellant is the Victorian WorkCover Authority ("the Authority") which was established as a body corporate by s 18 of the Accident Compensation Act 1985 (Vic) ("the Compensation Act"). By force of s 64(1) of the Accident Compensation (WorkCover) Act 1992 (Vic), which came into force on 1 December 1992, the Authority is the successor in law of the Accident Compensation Commission ("the Commission"), whose property, rights and assets vested in the Authority and whose liabilities became liabilities of the Authority. At various times and pursuant to the Compensation Act, the Authority, its predecessor, the Commission, and the second appellant, FAI Workers' Compensation (Vic) Pty Ltd ("FAI"), made payments to Mr Kazimer Wsol in respect of a back injury he sustained in 1989. 2. Mr Wsol sustained his injury whilst he was an employee of AFCO Industrial Services Group Pty Ltd ("AFCO"). That company, since in liquidation, had been engaged by the respondent, Esso Australia Ltd ("Esso"), to provide, among other things, the services of its employees to perform a variety of tasks on the oil platform in Bass Strait which was known as Kingfish West Oil Platform and was occupied by Esso. Mr Wsol worked on the platform pursuant to that arrangement. He injured his back on 10 January 1989, his condition deteriorated and he has not worked since September of that year. 3. In the period to 30 June 1993, compensation payments, the total of which was in the order of $115,000, were made by the Authority (after 1 December 1992) and its predecessor (before 1 December 1992). FAI was the authorised insurer of AFCO and liable to pay compensation to Mr Wsol pursuant to the provisions of the Compensation Act. In the period from 1 July 1993 to 22 October 1998, a week before the commencement of the trial in the Supreme Court of Victoria, FAI made compensation payments, the total of which was in the order of $220,000.