Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors [2004] NSWCA 346

Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors [2004] NSWCA 346

Royal was not obliged to indemnify Fugen for the remaining 50% payable to Multiplex because that amount was paid solely by reason of Fugen's contractual indemnity to Multiplex and was not a relevant common law loss of Fugen as employer covered by the statutory workers' compensation policy. Nigel Watts was correct and should be followed. The trial judge erred in assessing loss of future earning capacity by failing to make a comparable allowance for cyclical employment difficulties in the building industry; the proper allowance was $260 per week rather than $350 per week.

Jurisdiction
Australia
Judgment Date
28 October 2004
Procedural Posture
Appeals From District Court Proceedings Concerning Workers' Compensation Insurance Indemnity, Contractual Indemnity and Damages for Personal Injury / Court of Appeal Judgment; Parties Requested That No Orders Be Made at This Stage and Were Directed to Bring in Draft Minutes of Orders
Outcome
Appeal on the insurance indemnity issue dismissed; damages assessment for loss of future earning capacity adjusted; no final orders made at this stage.
Legal Topics
["statutory Workers' Compensation Policy" 'common Law Extension' 'contractual Indemnity' 'contribution Between Concurrent Tortfeasors' 'meaning of "becomes Liable"' 'loss of Future Earning Capacity']
['insurance' "workers' Compensation" 'torts' 'contract' 'damages'] ["statutory Workers' Compensation Policy" 'common Law Extension' 'contractual Indemnity' 'contribution Between Concurrent Tortfeasors' 'meaning of "becomes Liable"' 'loss of Future Earning Capacity']

Case Brief

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Procedural Posture

Appeals From District Court Proceedings Concerning Workers' Compensation Insurance Indemnity, Contractual Indemnity and Damages for Personal Injury / Court of Appeal Judgment; Parties Requested That No Orders Be Made at This Stage and Were Directed to Bring in Draft Minutes of Orders

Legal Issues

  1. 1 ["Whether Fugen was entitled to indemnity from Royal under the workers' compensation policy for the remaining 50% it was obliged to pay Multiplex under a contractual indemnity." 'Whether Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1995) 8 ANZ Insurance Cases 61-235 was wrongly decided or should not be followed.' 'Whether the phrase "becomes liable" in cl 3(b) of the statutory policy required liability crystallised by settlement, arbitration or verdict, or included liability when the cause of action accrued.' "Whether the trial judge erred in assessing Mr Irving's loss of future earning capacity."]

Ratio Decidendi

Royal was not obliged to indemnify Fugen for the remaining 50% payable to Multiplex because that amount was paid solely by reason of Fugen's contractual indemnity to Multiplex and was not a relevant common law loss of Fugen as employer covered by the statutory workers' compensation policy. Nigel Watts was correct and should be followed. The trial judge erred in assessing loss of future earning capacity by failing to make a comparable allowance for cyclical employment difficulties in the building industry; the proper allowance was $260 per week rather than $350 per week.

Court Disposition

Appeal on the insurance indemnity issue dismissed; damages assessment for loss of future earning capacity adjusted; no final orders made at this stage.

Orders

  • ['Within 21 days the parties to bring in an agreed draft minute of orders and, failing agreement, their respective proposed draft minutes together with written submissions supporting the draft minutes.']