[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 compensation — Worker — Contribution injury — Determination of
liability of contributing insurer — Relevant date — Assessment — Whether
entitlement to compensation extinguished by fully satisfied common law
settlement — Workers Compensation Act 1958 (No 6419), s63(3), s64, s71(1), s72 — Accident 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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