Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2)

Synergy Scaffolding Services Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision concerning the recovery of workers' compensation payments made to Mr Alelaimat (the respondent). The dispute arose from personal injuries sustained by the respondent during his employment with the appellant, where the appellant was found to be a joint tortfeasor. The core of the appeal concerned the appellant's ability to recover compensation payments from a third-party tortfeasor under section 151Z of the *Workers Compensation Act 1987* (NSW), given its own liability as a joint tortfeasor.

The primary legal issues before the Court of Appeal were: first, whether the appellant, as a joint tortfeasor, could claim recovery of compensation payments from a third-party tortfeasor under section 151Z(1)(d) of the Act; and second, the construction of section 151Z(2)(e) of the Act, specifically whether the worker had "not accepted satisfaction of the judgment against that employer," and the worker's liability to repay compensation out of damages under section 151Z(1)(b).

The Court considered the interplay between the appellant's status as a joint tortfeasor and its right to indemnity under section 151Z. It analysed the legislative intent behind section 151Z, particularly subsections (1)(d) and (2)(e), in the context of an employer's liability for an injury and the subsequent recovery of compensation paid. The Court's reasoning addressed the conditions under which an employer, even if a tortfeasor, could seek recovery from a third party, and the circumstances in which a worker's receipt of damages would trigger an obligation to repay compensation.

The Court of Appeal made orders regarding the appeal and cross-claims, with specific orders to be made on 21 February 2024 unless otherwise agreed by the parties.