QBE Workers Compensation (NSW) Ltd v Dolan

Case [2004] NSWCA 458


Reported Decision:

62 NSWLR 42

Court of Appeal


CITATION: QBE WORKERS COMPENSATION (NSW) LIMITED v. DOLAN [2004] NSWCA 458
HEARING DATE(S): 25/08/2004
JUDGMENT DATE:
15 December 2004
JUDGMENT OF: Mason P at 1; Beazley JA at 2; Tobias JA at 81
DECISION: 1. Appeal allowed.; 2. Set aside the orders and judgment of Gibb DCJ dated 26 September 2003.; 3. Verdict and judgment for the appellant.; 4. Direct parties to file short minutes of order in relation to the quantum of damages and indemnity.; 5. The respondent to pay the appellant's costs in this Court and in the court below.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.
CATCHWORDS: ESTOPPEL - Consent judgment between employee and third party tortfeasor - Subsequent proceedings for indemnity brought by employer against third party tortfeasor - Whether employer a privy in interest to claim brought by employee against third party tortfeasor - Whether res judicata estoppel - Whether independent right. - STATUTORY CONSTRUCTION - Workers Compensation Act 1987 (NSW), s.151Z(1)(d) - Construction - Employer's indemnity for compensation paid to employee - Consent judgment - Whether third party tortfeasor was a person in whom a liability was created within the meaning of the section - Whether right to indemnity is an independent right.
LEGISLATION CITED: Law Reform Miscellaneous Provisions Act 1946
Suitors' Fund Act 1951 (NSW)
Workers Compensation Act 1987 (NSW)
CASES CITED: Australian Securities Commission v. Marlborough Gold Mines Ltd (1993) 177 CLR 485
Baxter v. Obacelo Pty. Ltd. (2001) 205 CLR 635
Blair v Curran (1939) 62 CLR 464
Effem Foods Pty. Ltd v. Trawl Industries of Australia Pty. Ltd (1993) 43 FCR 510
GIO of New South Wales v. McDonald (1991) 25 NSWLR 492
Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54
James Hardie & Co. Pty. Limited v. Seltsam Pty. Limited (1998) 196 CLR 53
Manners v. Transfield Pty. Limited (1992) 110 ALR 70
Ramsay v. Pigram (1968) 118 CLR 271
Tickle Industries Pty. Limited v. Hann (1974) 130 CLR 321
Tooth v Tillyer (1956) 95 CLR 605

PARTIES :

QBE WORKERS COMPENSATION (NSW) LIMITED (Appellant)
FRANCIS DOLAN (Respondent)
FILE NUMBER(S): CA 40881/03
COUNSEL: G.M. Watson SC/N.E. Chen (Appellant)
S. Gageler SC/R.C. Tonner (Respondent)
SOLICITORS: Gillis Delaney Brown (Appellant)
Moray & Agnew (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 67/02
LOWER COURT
JUDICIAL OFFICER :
Gibb DCJ
- 1 -


                          CA 40881/03
                          DC 67/02

                          MASON P
                          BEAZLEY JA
                          TOBIAS JA

                          15 December 2004

QBE WORKERS COMPENSATION (NSW) LIMITED v. DOLAN

Headnote



      The appellant was the insurer of an employer whose employee was injured when a motor vehicle driven by the respondent collided with his vehicle. The employee commenced proceedings in the Compensation Court claiming workers compensation from the employer under the Workers Compensation Act 1987 (NSW) . The employee also brought proceedings in the District Court against the respondent claiming damages for the injuries he sustained which were settled by entry of judgment…

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AGLC
QBE Workers Compensation (NSW) Ltd v Dolan [2004] NSWCA 458
Case
[2004] NSWCA 458
Decision Date

CaseChat Overview and Summary

QBE Workers Compensation (NSW) Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the District Court that had granted judgment in favour of Mr Dolan (the respondent) in proceedings for indemnity. The dispute concerned whether the appellant, as the employer's workers compensation insurer, was entitled to an indemnity from a third party tortfeasor, notwithstanding a prior consent judgment entered into between the employee and that tortfeasor.

The primary legal issues before the Court of Appeal were whether the appellant was estopped by the prior consent judgment from pursuing its claim for indemnity, and whether the appellant possessed an independent right to indemnity under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW). Specifically, the Court considered whether the third party tortfeasor was a person in whom a liability was created within the meaning of that section, and whether the right to indemnity was an independent statutory right that could be pursued separately from the employee's claim.

The Court of Appeal held that the appellant was not estopped by the consent judgment. It reasoned that the appellant was not a privy in interest to the original claim brought by the employee against the third party tortfeasor, and therefore the doctrine of *res judicata* did not apply. Furthermore, the Court determined that section 151Z(1)(d) of the *Workers Compensation Act 1987* conferred an independent right of indemnity upon the employer, which was not extinguished by the employee's settlement with the tortfeasor. The Court found that the consent judgment did not preclude the appellant from establishing the tortfeasor's liability for the purposes of its indemnity claim.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and entered a verdict and judgment for the appellant. The Court directed the parties to file short minutes of order regarding the quantum of damages and indemnity, and ordered the respondent to pay the appellant's costs in both the Court of Appeal and the court below, with a certificate under the *Suitors' Fund Act 1951* (NSW) to be granted if the respondent was so entitled.

Orders

Orders of the court

1. Appeal allowed.; 2. Set aside the orders and judgment of Gibb DCJ dated 26 September 2003.; 3. Verdict and judgment for the appellant.; 4. Direct parties to file short minutes of order in relation to the quantum of damages and indemnity.; 5. The respondent to pay the appellant's costs in this Court and in the court below.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

Background

Background to the litigation

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Evidence

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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