Fuller v K & J Trucks

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.