ACCIDENT COMPENSATION COMMISSION v ZURICH AUSTRALIAN INSURANCE LTD

2 VR 1·CROCKETT (1), SOUTHWELL (2) and ASHLEY (3) JJ
[1992] 2 VR 1
ACCIDENT COMPENSATION COMMISSION v ZURICH AUSTRALIAN INSURANCE LTD SUPREME COURT OF VICTORIA APPEAL DIVISION CROCKETT (1), SOUTHWELL (2) and ASHLEY (3) JJ 4-7, 28 June 1991 Accident compensationWorkerContribution injuryDetermination of liability of contributing insurerRelevant dateAssessmentWhether entitlement to compensation extinguished by fully satisfied common law settlementWorkers Compensation Act 1958 (No 6419), s63(3), s64, s71(1), s72Accident Compensation Act 1985 (No 10191), s129B(6)(a)(iii), s135. P was employed as a process worker between February 1977 and August 1981, and again between March 1984 and October 1985, the latter period of employment being of an irregular or casual character. As a consequence of employment, she suffered injury to both arms. One injury, carpal tunnel syndrome, resulted from employment both before and after the day appointed for commencement of the Accident Compensation Act 1985, namely 4pm on 31 August 1985. The second injury, tendonitis of the right hand and wrist, resulted from employment only after the appointed day. Both injuries materially contributed to incapacity to work as from 30 October 1985. The worker received weekly payments of compensation under the Accident Compensation Act. In addition, in December 1986, she sued her employer in the County Court claiming damages. There was a claim for both past earning loss and for loss of earning capacity limited to loss resulting from injury sustained prior to the appointed day. The Accident Compensation Commission assumed the conduct of the defence and it arrived at a settlement of $10,000 to which the respondent insurer contributed 40 per cent. On 23 October 1989, the commission assessed the insurer pursuant to Div. 6A of the Act, in relation to a "contribution injury", namely the carpal tunnel syndrome, caused by employment both before and after the appointed day. The commission assessed the insurer as being liable to pay $42,812.73 plus a weekly sum. The assessment was based upon the insurer being 80 per cent responsible for the injury. The respondent paid the assessment and lodged notice of objection under s129G(2) of the Act. The notice of objection was disallowed and the respondent applied to the Accident Compensation Tribunal for review of the assessment under s129G(6). The tribunal concluded that s129B(6)(a)(ii) meant that taking into account the common law settlement which had been effected, factor C in s129B(6)(b) was zero and that accordingly the commission was entitled to no amount from the insurer. The tribunal ordered that the assessment be reduced to zero and that the commission repay the moneys previously paid by the insurer together with interest. On appeal to the Full Court:

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[1992] 2 VR 1

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