Tamerji v Rhee - [2008] NSWCA 314

Reported Decision: 73 NSWLR 1

New South Wales

Court of Appeal

CITATION: Tamerji v Rhee [2008] NSWCA 314

HEARING DATE(S): 10 November 2008

JUDGMENT DATE:
26 November 2008

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Campbell JA at 3

DECISION: (1) Leave to appeal granted.
(2) Appeal dismissed with costs.

CATCHWORDS: WORKERS’ COMPENSATION – alternative rights against employer and third parties – where worker injured in motor vehicle accident received compensation from employer – where worker later recovered damages from third party who caused the worker’s injury – calculation of amount of compensation that worker is liable to repay to the employer out of those damages under s 151Z(1)(b) Workers Compensation Act 1987 – whether compensation of a particular type is repayable only from damages awarded in connection with that type of loss – literal construction – purposive construction – effect of s 151Z(4) Workers Compensation Act – effect of contributory negligence – comparison of conditions of entitlement and manner of quantification of compensation payable under Workers Compensation Act and Motor Accidents Compensation Act 1999

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987

CATEGORY: Principal judgment

CASES CITED: Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321
Turner v George Weston Foods Limited [2007] NSWCA 67; (2007) 4 DDCR 571

PARTIES: Mahmoud Tamerji (Appellant)
Hou Ihn Rhee (Respondent)

FILE NUMBER(S): CA 40868/07

COUNSEL: J Jobson (Appellant)
K Andrews (Respondent)

SOLICITORS: Milicevic Solicitors (Appellant)
Leitch Hasson Dent, Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3120/07

LOWER COURT JUDICIAL OFFICER: McGrowdie ADCJ

LOWER COURT DATE OF DECISION: 23 November 2007

CA 40868/07
DC 3120/07

BEAZLEY JA
IPP JA
CAMPBELL JA
26 NOVEMBER 2008

Mohmoud TAMERJI v Hou Ihn RHEE

Judgment

1 BEAZLEY JA: I agree with Campbell JA.

2 IPP JA: I agree with Campbell JA.

3 CAMPBELL JA:

4 The amount at issue in this appeal is less than $100,000, in consequence of which leave to appeal is required. However, in my view the issue raised by the appeal is sufficiently important to warrant the grant of leave.

5 The appeal raises a narrow but important question concerning the construction of section 151Z Workers Compensation Act 1987 (“WCA”). It concerns the situation that arises when a worker who has been injured, and in consequence has received payments of workers compensation from his employer, later recovers damages from someone other than his employer who has caused the worker’s injury. It is clear that section 151Z obliges the worker to repay at least some of the amount of compensation he has received. The question at issue in the appeal concerns precisely how one calculates the amount of compensation that must be repaid. In particular, it concerns whether compensation of a particular type is repayable only from damages awarded in connection with that type of loss, so that, for example, compensation by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tamerji v Rhee

Details

AGLC: Tamerji v Rhee [2008] NSWCA 314
Case: [2008] NSWCA 314
Decision Date: 26 November 2008

CaseChat Overview and Summary

The dispute in *Tamerji v Rhee* concerned the calculation of the amount a worker, who had received workers' compensation from their employer following a motor vehicle accident, was liable to repay to the employer out of damages subsequently recovered from the third party responsible for the injury. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the court was the interpretation of section 151Z(1)(b) of the *Workers Compensation Act 1987* (NSW). Specifically, the court had to determine whether compensation paid to the worker by the employer was only repayable from damages awarded in connection with the same type of loss, or if all compensation paid was repayable from any damages recovered from the third party. The court also considered the effect of section 151Z(4) of the Act, the impact of contributory negligence on the repayment obligation, and the comparison between the conditions of entitlement and quantification of compensation under the *Workers Compensation Act* and the *Motor Accidents Compensation Act 1999* (NSW).

The Court of Appeal applied a literal and purposive construction to section 151Z(1)(b). It reasoned that the provision required the worker to repay to the employer the amount of compensation paid, to the extent that the damages recovered from the third party represented a recovery for the same loss or injury for which compensation had been paid. The court found that the wording of the section did not restrict the repayment to damages awarded for a specific type of loss, but rather focused on the recovery of damages for the injury itself. The court also considered the interplay with section 151Z(4) and the effect of contributory negligence, concluding that these did not alter the fundamental obligation to repay compensation from damages recovered for the injury.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted. (2) Appeal dismissed with costs.

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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CITATION:	Tamerji v Rhee [2008] NSWCA 314
HEARING DATE(S):	10 November 2008
JUDGMENT DATE:	26 November 2008
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Campbell JA at 3
DECISION:	(1) Leave to appeal granted. (2) Appeal dismissed with costs.
CATCHWORDS:	WORKERS’ COMPENSATION – alternative rights against employer and third parties – where worker injured in motor vehicle accident received compensation from employer – where worker later recovered damages from third party who caused the worker’s injury – calculation of amount of compensation that worker is liable to repay to the employer out of those damages under s 151Z(1)(b) Workers Compensation Act 1987 – whether compensation of a particular type is repayable only from damages awarded in connection with that type of loss – literal construction – purposive construction – effect of s 151Z(4) Workers Compensation Act – effect of contributory negligence – comparison of conditions of entitlement and manner of quantification of compensation payable under Workers Compensation Act and Motor Accidents Compensation Act 1999
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321 Turner v George Weston Foods Limited [2007] NSWCA 67; (2007) 4 DDCR 571
PARTIES:	Mahmoud Tamerji (Appellant) Hou Ihn Rhee (Respondent)
FILE NUMBER(S):	CA 40868/07
COUNSEL:	J Jobson (Appellant) K Andrews (Respondent)
SOLICITORS:	Milicevic Solicitors (Appellant) Leitch Hasson Dent, Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3120/07
LOWER COURT JUDICIAL OFFICER:	McGrowdie ADCJ
LOWER COURT DATE OF DECISION:	23 November 2007