Xpolitos v Sutton Tools Pty Ltd [1977] HCA 25

High Court of Australia Barwick C.J. Gibbs, Stephen, Jacobs and Aickin JJ. Xpolitos v Sutton Tools Pty Ltd [1977] HCA 25

ORDER Appeal allowed with costs. Order that the amount of the judgment entered for the respondent by the Supreme Court of Victoria be varied by the substitution of the sum of $5,000 for the sum of $13,109.96.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Barwick C.J.

An employee of the plaintiff-respondent was killed in a collision between motor vehicles on a public road in circumstances in which the defendants-appellants became liable to pay damages to an infant son of the deceased under the Wrongs Act 1958 Vict., as amended ("the Wrongs Act "). The plaintiff was required to pay and paid a total sum of $13,109.96, under the Workers Compensation Act 1958 Vict., as amended ("the Act"), as workers' compensation and certain costs and expenses to or for the benefit of the son of the deceased employee.

The plaintiff sued the defendants in the Supreme Court of Victoria for the idemnity for which s. 62 of the Act provides, claiming to recover the full sum paid as compensation under the Act. That section is in the following terms, so far as presently relevant:

62.

(1) Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof—

(b) if compensation has been paid under this Act the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of any such indemnity shall in default of agreement be settled by action or if the parties consent by the Board.

and s. 79 of the Act provides: