Reported Decision: 67 NSWLR 516
Court of Appeal
CITATION: Fuller v K & J Trucks [2006] NSWCA 88 HEARING DATE(S): 17 March 2006
JUDGMENT DATE:
26 April 2006JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Bryson JA at 7 DECISION: Appeal dismissed with costs. CATCHWORDS: WORKERS COMPENSATION - recovery by employer of indemnity from tortfeasor for compensation paid to worker - worker was injured in collision between his motorcycle and tortfeasor’s 4WD - worker did not sue for damages – employer sued for indemnity WCAct 1987 s.151Z(1)(d) and recovered indemnity below compensation paid and limited to one half of worker’s damages after 50% reduction for contributory negligence - tortfeasor challenged inclusion of worker’s non-economic loss in assessing tortfeasor’s liability to pay damages because degree of permanent impairment had not been assessed by medical assessor under MACA 1999 Part 3.4: see s.132(1) - tortfeasor contended that unless the machinery had been followed, worker had no entitlement to damages for non-economic loss and hence that element should not be included in assessment of liability to pay damages in respect of the injury referred to in s.151Z(1). HELD: Pt. 3.4 and s.132(1) did not apply to claim by employer for indemnity. LEGISLATION CITED: Law Reform (Miscellaneous) Provisions Act 1946 (NSW) s.5(1)(c)
Motor Accidents Compensation Act 1999 (NSW) ss.3, 5, 6, 43, 44(1)(d), 58, 59, 60, 61, 64(3), 94, 95, 122(1), 122(2), 131, 132(1), 133(1), 134
Workers Compensation Act 1987 (NSW) ss.10, 151Z, 151Z(1)(d), 151Z(2)(c) & (d)CASES CITED: Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199
Cory & Son Ltd v France, Fenwick & Co. Ltd [1911] 1 KB 114
Forstaff Blacktown Pty Ltd v Brimac Pty Ltd ; Brimac Pty Ltd v Johnston [2005] NSWCA 423
Government Insurance Office (NSW) v C.E. McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492
Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263
Hamilton v Merck & Co. Inc [2006] NSWCA 55
Harding v Lithgow Municipal Council (1937) 57 CLR 186
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Kavanagh v Sutherland Shire Council & Anor [2000] 21 NSWCCR 1
Shirwell v Hackwood Estates Co. Ltd (1938) 2 KB 577
Smith's Dock Company v John Readhead & Sons [1912] 2 KB 323
Tickle Industries Pty Ltd v Hann & Richardson (1974) 130 CLR 321
Tooth & Co. Ltd v Tillyer (1956) 95 CLR 605
Tuckwood v Mayor of Rotherham [1921] 1 KB 526
Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207PARTIES: Appellant – Craig Adam Fuller
Respondent – K & J Trucks Coffs Harbour Pty Ltd
FILE NUMBER(S): CA 40161/2005 COUNSEL: Appellant – R.R. Bartlett / C. Hickey
Respondent – L. King SC / M. JenkinsSOLICITORS: Appellant – McCourts
Respondent – Rankin & Nathan
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 74/03 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 02/17/2005
CA 40161 of 2005
HANDLEY JA
IPP JA
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- AGLC
- Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88
- Case
- [2006] NSWCA 88
- Decision Date
CaseChat Overview and Summary
The dispute in *Fuller v K & J Trucks* concerned an employer's claim for indemnity from a tortfeasor for workers' compensation payments made to an employee injured in a motorcycle accident. The employee had not sued the tortfeasor for damages. The employer had successfully recovered indemnity in the court below, limited to one half of the worker's damages after a 50% reduction for contributory negligence. The tortfeasor appealed this decision to the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the tortfeasor's liability to pay damages, for the purpose of calculating the employer's indemnity under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), included the worker's non-economic loss. The tortfeasor argued that because the worker's degree of permanent impairment had not been assessed by a medical assessor under Part 3.4 of the *Motor Accidents Compensation Act 1999* (NSW), as required by section 132(1) of that Act, the worker had no entitlement to damages for non-economic loss, and therefore this element should not be included in the assessment of the tortfeasor's liability for indemnity.
The Court of Appeal held that Part 3.4 and section 132(1) of the *Motor Accidents Compensation Act 1999* (NSW) did not apply to a claim by an employer for indemnity under section 151Z(1) of the *Workers Compensation Act 1987* (NSW). The court reasoned that the employer's right to indemnity was a statutory right distinct from the worker's right to sue for damages. The assessment of the tortfeasor's liability for the purpose of indemnity was not contingent on the worker having satisfied the procedural requirements for claiming non-economic loss in a direct damages claim.
The appeal was dismissed with costs.
The central legal issue before the Court of Appeal was whether the tortfeasor's liability to pay damages, for the purpose of calculating the employer's indemnity under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), included the worker's non-economic loss. The tortfeasor argued that because the worker's degree of permanent impairment had not been assessed by a medical assessor under Part 3.4 of the *Motor Accidents Compensation Act 1999* (NSW), as required by section 132(1) of that Act, the worker had no entitlement to damages for non-economic loss, and therefore this element should not be included in the assessment of the tortfeasor's liability for indemnity.
The Court of Appeal held that Part 3.4 and section 132(1) of the *Motor Accidents Compensation Act 1999* (NSW) did not apply to a claim by an employer for indemnity under section 151Z(1) of the *Workers Compensation Act 1987* (NSW). The court reasoned that the employer's right to indemnity was a statutory right distinct from the worker's right to sue for damages. The assessment of the tortfeasor's liability for the purpose of indemnity was not contingent on the worker having satisfied the procedural requirements for claiming non-economic loss in a direct damages claim.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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