QBE Workers Compensation (NSW) Ltd v Dolan

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.