Abdulle v QBE Insurance (Australia) Ltd - [2010] NSWCA 60

New South Wales

Court of Appeal

CITATION: ABDULLE v QBE INSURANCE (AUSTRALIA) LIMITED [2010] NSWCA 60

HEARING DATE(S): 3 March 2010

JUDGMENT DATE:
1 April 2010

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; Basten JA at 1

DECISION: (1) Grant the applicant leave to appeal against the judgment in the District Court delivered on 26 May 2009.
(2) Direct the applicant to file within 7 days the draft notice of appeal contained in the White Book.
(3) Dismiss the appeal.
(4) Order that the applicant pay the respondent’s costs in this Court.

CATCHWORDS: WORKERS' COMPENSATION – personal injury – obligation of tortfeasor to indemnify person by whom compensation paid – whether payment pursuant to indemnity satisfies indemnity – whether indemnity covers damages for future loss – Workers Compensation Act 1987 (NSW), s 151Z(1)(b), (1)(d), (1)(e1) and (4) - WORKERS' COMPENSATION – obligation on worker to repay compensation from award of damages – whether obligation extends to damages for future loss – when worker “recovers” damages – whether judgment for one amount within operation of Workers Compensation Act 1987 (NSW), s 151Z(4) - WORDS & PHRASES – "judgment for damages" – "recovery of damages" – “periodic or other payments” – "structured settlement"

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 22
Workers Compensation Act 1926 (NSW), s 64
Workers Compensation Act 1987 (NSW), ss 151Q, 151Z

CATEGORY: Principal judgment

CASES CITED: Allianz Workers Compensation Ltd v Evans (2003) 1 DCLR (NSW) 154
Smith v Commonwealth Oil Refineries Ltd [1938] HCA 33; 60 CLR 141
Tamerji v Rhee [2008] NSWCA 314; 73 NSWLR 1
Turner v George Weston Foods Ltd [2007] NSWCA 67; 4 DDCR 571
Watson v Newcastle Corporation [1962] HCA 6; 106 CLR 426

PARTIES: Abdiaziz Abdulle - Applicant
QBE Insurance (Australia) Limited - Respondent

FILE NUMBER(S): CA 2009/298344

COUNSEL: J Jobson – Applicant
L King SC – Respondent

SOLICITORS: Lee & Lyons Lawyers – Applicant
Stephen Spinak Solicitors – Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4738/08

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 26 May 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Abdiaziz Abdulle v QBE Insurance (Australia) Limited [2009] NSWDC 153

CA 2009/298344
DC 49393/2009

ALLSOP P
BEAZLEY JA
BASTEN JA
1 April 2010

Abdiaziz ABDULLE v QBE INSURANCE (AUSTRALIA) LIMITED

Headnote

The applicant suffered an injury on 3 February 2004 whilst employed as a casual labourer. On 27 May 2008 Balla DCJ in the District Court gave judgment in the applicant's favour against his employer in an amount of $105,000. By the date of judgment the applicant had received payments from the employer's workers' compensation insurer totalling $96,726.80. Despite instructions from the applicant's solicitors that the full judgment amount was to be paid to them, only $8,000 was so paid, the bulk of the balance having been paid to the workers' compensation insurer.

The applicant commenced proceedings in the District Court against the employer's insurer (the respondent) seeking judgment for converting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 60
Decision Date: 1 April 2010

CaseChat Overview and Summary

The applicant, Mr. Abdulle, sought leave to appeal against a decision of the District Court of New South Wales concerning a workers' compensation indemnity claim. The dispute arose from personal injuries Mr. Abdulle sustained in the course of his employment, for which he received workers' compensation payments from QBE Insurance (Australia) Ltd. Subsequently, Mr. Abdulle pursued a common law claim for damages against his employer, and QBE sought to recover the compensation payments it had made from any damages awarded to Mr. Abdulle, pursuant to section 151Z of the *Workers Compensation Act 1987* (NSW).

The primary legal issues before the Court of Appeal were whether the indemnity obligation under section 151Z(1)(b) of the Act was satisfied by the payment of compensation, and whether this indemnity extended to damages for future loss. Additionally, the court considered whether Mr. Abdulle's obligation to repay compensation from damages recovered, as stipulated in section 151Z(4), encompassed damages for future loss and when a worker is deemed to have "recovered" damages for the purposes of this section, particularly in the context of a judgment for a single amount.

The Court of Appeal, in dismissing the appeal, reasoned that the indemnity under section 151Z(1)(b) was not discharged merely by the payment of compensation; rather, it created an obligation on the tortfeasor to indemnify the insurer. The court affirmed that the indemnity extended to damages for future loss. Furthermore, it held that section 151Z(4) applied to a lump sum judgment for damages, regardless of whether it included components for past or future loss, and that the "recovery of damages" occurred upon the entry of judgment.

Consequently, the Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering Mr. Abdulle to pay QBE Insurance's costs.

Orders

Orders of the court

(1) Grant the applicant leave to appeal against the judgment in the District Court delivered on 26 May 2009.

(2) Direct the applicant to file within 7 days the draft notice of appeal contained in the White Book.

(3) Dismiss the appeal.

(4) Order that the applicant pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ABDULLE v QBE INSURANCE (AUSTRALIA) LIMITED [2010] NSWCA 60
HEARING DATE(S):	3 March 2010
JUDGMENT DATE:	1 April 2010
JUDGMENT OF:	Allsop P at 1; Beazley JA at 1; Basten JA at 1
DECISION:	(1) Grant the applicant leave to appeal against the judgment in the District Court delivered on 26 May 2009. (2) Direct the applicant to file within 7 days the draft notice of appeal contained in the White Book. (3) Dismiss the appeal. (4) Order that the applicant pay the respondent’s costs in this Court.
CATCHWORDS:	WORKERS' COMPENSATION – personal injury – obligation of tortfeasor to indemnify person by whom compensation paid – whether payment pursuant to indemnity satisfies indemnity – whether indemnity covers damages for future loss – Workers Compensation Act 1987 (NSW), s 151Z(1)(b), (1)(d), (1)(e1) and (4) - WORKERS' COMPENSATION – obligation on worker to repay compensation from award of damages – whether obligation extends to damages for future loss – when worker “recovers” damages – whether judgment for one amount within operation of Workers Compensation Act 1987 (NSW), s 151Z(4) - WORDS & PHRASES – "judgment for damages" – "recovery of damages" – “periodic or other payments” – "structured settlement"
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s 22 Workers Compensation Act 1926 (NSW), s 64 Workers Compensation Act 1987 (NSW), ss 151Q, 151Z
CATEGORY:	Principal judgment
CASES CITED:	Allianz Workers Compensation Ltd v Evans (2003) 1 DCLR (NSW) 154 Smith v Commonwealth Oil Refineries Ltd [1938] HCA 33; 60 CLR 141 Tamerji v Rhee [2008] NSWCA 314; 73 NSWLR 1 Turner v George Weston Foods Ltd [2007] NSWCA 67; 4 DDCR 571 Watson v Newcastle Corporation [1962] HCA 6; 106 CLR 426
PARTIES:	Abdiaziz Abdulle - Applicant QBE Insurance (Australia) Limited - Respondent
FILE NUMBER(S):	CA 2009/298344
COUNSEL:	J Jobson – Applicant L King SC – Respondent
SOLICITORS:	Lee & Lyons Lawyers – Applicant Stephen Spinak Solicitors – Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4738/08
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	26 May 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Abdiaziz Abdulle v QBE Insurance (Australia) Limited [2009] NSWDC 153