Thorn v Monteleone; Thorn v Kelly

[2021] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319

Hearing dates:

18 and 19 October 2021

Date of orders:

16 December 2021

Decision date:

16 December 2021

Before:

Bell P at [1];
Macfarlan JA at [2];
Simpson AJA at [90]

Decision:

Proceedings 2021/72965:

(1)    Appeal dismissed, with costs.

Proceedings 2021/72975:

(1)    Appeal dismissed, with costs.

Catchwords:

NEGLIGENCE – damages – challenge to award of damages made by primary judge to injured respondent – whether post-accident surveillance footage of respondent and medical evidence properly taken into account by primary judge – whether primary judge erred in making awards under certain heads of damage – credit-based factual findings by judge – no appellable error by primary judge established

WORKERS COMPENSATION – uninsured liabilities – payments of workers compensation by Nominal Insurer to injured worker – partial reimbursement to Nominal Insurer by employers – third party tortfeasor liable for worker’s injury – whether employers able to claim against third party tortfeasor under s 151Z(1)(d) Workers Compensation Act for all of workers compensation payments made – proper construction of s 151Z(1)(d) – meaning of “the person by whom the compensation was paid” – employers properly to be regarded as person by whom compensation paid

Legislation Cited:

Civil Liability Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Browne v Dunn (1893) 6 R 67

Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213

Cockatoo Docks & Engineering Co Pty Ltd v Dalgety & Co Ltd (1939) 39 SR (NSW) 295

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Payne v Parker [1976] 1 NSWLR 191

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306
Yebdoo v Holmewood [2021] NSWCA 119

Category:

Principal judgment

Parties:

Proceedings 2021/72965:
Mr Andrew Thorn (First Appellant)
Thorn Transport Pty Limited (Second Appellant)
Mr Ross Monteleone (formerly Poyser) (Respondent)

Proceedings 2021/72975:
Mr Andrew Thorn (First Appellant)
Thorn Transport Pty Limited (Second Appellant)
Mr William Andrew Kelly (First Respondent)
Mr William Richard Kelly (Second Respondent)
Ms Margaret Jane Kelly (Third Respondent)

Representation:

Proceedings 2021/72965:
Counsel:
M McCulloch SC / D Kelly (Appellant)
G O’L Reynolds SC / A J J Renshaw / B Adam (Respondent)

Solicitors:
Gillis Delaney Lawyers (Appellant)
A R Conolly & Company (Respondent)

Proceedings 2021/72975:
Counsel:
M McCulloch SC / D Kelly (Appellant)
J Sexton SC / L D Robison (Respondent)

Solicitors:
Gillis Delaney Lawyers (Appellant)
Benson Law (Respondent)

File Number(s):

2021/72965; 2021/72975

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 118

Date of Decision:

19 February 2021

Before:

Cavanagh J

File Number(s):

2015/326714; 2016/74936

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Monteleone suffered an injury in 2013 whilst he was assisting the Thorns to unload sheep from a truck during the course of his employment by the Kellys as a farm contractor. Mr Monteleone sued the Thorns for negligence, alleging that they were responsible for his injury. He claimed that as a result of his injury, he has only been able to perform limited work, has constant pain and suffers depression and anxiety. The Thorns asserted that Mr Monteleone was not as seriously injured in the accident as he claims to have been and relied in part on surveillance footage of Mr Monteleone taken since the accident. The primary judge determined that the Thorns were liable for Mr Monteleone’s injury and assessed damages at about $1.4 million.

Heard with the proceedings by Mr Monteleone against the Thorns was a claim by his previous employers, the Kellys, against the Thorns. Mr Monteleone had received workers compensation payments from the Nominal Insurer due to the Kellys being uninsured, which the Kellys were required to reimburse to the Nominal Insurer in part. The Kellys relied on s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) to claim from the Thorns the total of the workers compensation payments made to Mr Monteleone. The primary judge determined that the Kellys were entitled to that amount, with interest.

The Thorns appealed to the Court of Appeal against the primary judge’s findings on damages in Mr Monteleone’s case and findings regarding the construction of s 151Z(1)(d) in the Kellys’ case.

The Court dismissed both appeals, with costs.

(Per Macfarlan JA, Bell P and Simpson AJA agreeing):

The appeal in Thorn v Monteleone:

1. The primary judge carefully assessed the surveillance evidence and the medical evidence concerning it. He ultimately concluded that it did not lead to any expert suggesting that Mr Monteleone was fit for his pre-accident work or was not experiencing pain, and the Thorns did not establish that this critical conclusion was incorrect: [22]. In any event, a submission that the primary judge failed to give significant weight to the surveillance evidence would not establish appellable error in relation to his Honour’s factual findings: [23]. Further, the surveillance footage does not prove that Mr Monteleone made deliberately false complaints: [24]-[26].

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, referred to. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306, distinguished.

1. The absence of cross-examination of Dr Maxwell (an orthopaedic surgeon) did not preclude the primary judge from accepting other medical evidence in preference to that of Dr Maxwell: [30].

Browne v Dunn (1893) 6 R 67; Yebdoo v Holmewood [2021] NSWCA 119; Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213, referred to.

(3)    The Thorns’ challenges to the primary judge’s awards for specific heads of damages were rejected: [40] (non-economic loss); [43], [47] (economic loss); [50]-[51] (buffer for future economic loss); [53]-[57] (past gratuitous care and future commercial care) and [59] (future out of pocket expenses).

The appeal in Thorn v Kelly:

(4) The reference in s 151Z(1)(d) to “the person by whom the compensation was paid” should be interpreted as referring to the person who paid or on whose behalf payment was made: [64]. The conclusion that workers compensation payments made to a worker in a direct or literal sense by the Nominal Insurer are, on the proper construction of the Act, in law payments of workers compensation made by the employer to the worker ensures, consistent with the apparent intent of s 151Z(1)(d), that the burden of workers compensation payments can be passed on by the employer to a relevant third party tortfeasor, if one exists: [88]. (Therefore the Kellys were able to claim from the Thorns as third party tortfeasors, pursuant to s 151Z(1)(d), the whole of the workers compensation payments made by the Nominal Insurer to Mr Monteleone: [65]-[66].)

Cockatoo Docks & Engineering Co Pty Ltd v Dalgety & Co Ltd (1939) 39 SR (NSW) 295, referred to.

Judgment

1. BELL P: I agree with the reasons and orders proposed by Macfarlan JA.

2. MACFARLAN JA: On 15 March 2013 Mr R Monteleone was injured in the course of his employment by Mr W A Kelly, Mr W R Kelly and Ms M J Kelly (“the Kellys”). An issue between the Kellys and persons who were found responsible for the accident, Mr A Thorn and Thorn Transport Pty Limited (together, “the Thorns”), concerning workers compensation payments made to Mr Monteleone, is addressed separately below.

3. At the time of his injury, Mr Monteleone was assisting Mr Thorn to unload sheep from a truck utilised in the course of the Thorns’ business. Mr Monteleone’s damages claim alleging negligence on the part of the Thorns was heard before Cavanagh J sitting in the Common Law Division of the Supreme Court. By judgment of 19 February 2021, his Honour concluded the issue of liability in Mr Monteleone’s favour and directed the entry of judgment for him against the Thorns in the sum of $1,435,339 ([2021] NSWSC 118).

4. On appeal the Thorns challenge his Honour’s assessment of damages but do not challenge his liability finding. In essence, they claim that Mr Monteleone was not as seriously injured in the accident as he claims to have been. His Honour summarised Mr Monteleone’s claimed disabilities resulting from the accident as follows:

“[163] [Mr Monteleone] now maintains [that he has] a disability at such a level that he says that [he] has only been able to perform some limited work or odd jobs since the accident. He maintains that he continues to suffer from shooting pain up his right arm and that he suffers from weakness, wasting and deformity of the right wrist and arm.

[164] He says that he suffers from a major depressive disorder and generalised anxiety disorder. He says that he has taken to excessive consumption of alcohol which he says he uses as a form of self-medication. Medication causes him to vomit.”

5. His Honour summarised the Thorns’ contentions as follows:

“[166] On the other hand, the defendant [referring to the Thorns] asserts that [Mr Monteleone] has suffered from little by way of disability since 2015; that he is deliberately not working so as to maximise his claim for compensation; that he has had long-term problems with alcohol; and that he has been quite capable of doing whatever he wished since at least 2015.”

6. The essence of the conclusions reached by his Honour in a thorough and carefully written judgment was as follows:

“[167] I reject the defendant’s portrayal of the plaintiff. It is based essentially on surveillance film and a report from a doctor (Dr David Maxwell) which is out of step with other evidence. It is inconsistent with the psychiatric evidence, both written and oral.”

7. For the reasons given below, I do not consider that the Thorns have made good any of their grounds of appeal. As a result, their appeal should be dismissed, with costs.

THE THORNS’ APPEAL IN MR MONTELEONE’S PROCEEDINGS

8. The terms of the Thorns’ 11 grounds of appeal are identified below when they are addressed seriatim.

THE EVIDENCE ON DAMAGES AT TRIAL

9. The following summary of the primary judge’s detailed description of the evidence on damages at the trial is sufficient for present purposes. Further aspects of the evidence will be referred to below when the grounds of appeal are addressed.

10. Mr Monteleone was 31 years of age at the time of his accident and was right-handed. He had grown up on a farm and for four years had run his own rural contracting business. He spent three years as a stockman and then recommenced the rural contracting business. He commenced working for the Kellys in 2011. His work included fencing, mustering, drenching, lamb and cattle marking, mechanical repairs and tractor operation. He had five children at the time of the accident and a sixth born in the months after.

11. One of his treating doctors, Dr Angela Hatfield (an orthopaedic surgeon), stated that a right arm fracture he suffered in the accident did not heal properly, leaving Mr Monteleone with approximately 20 degrees of malunion and ongoing significant weakness and wasting in the arm. She expressed the view in 2015 that Mr Monteleone’s capacity for work had been significantly affected by his injury.

12. Mr Monteleone also relied upon a report of Dr Robert Fisher, a consultant psychiatrist and pain management specialist. Dr Fisher reported that Mr Monteleone had chronic pain in his right wrist, intermittent pain in the right shoulder and symptoms of a major depressive disorder and generalised anxiety disorder. Dr Fisher was cross-examined at some length.

13. His Honour summarised as follows the evidence given by Professor Bruce Brew in Mr Monteleone’s case and the responsive evidence given on behalf of the Thorns by Professor Paul Spira, both consultant neurologists:

“[219] The doctors generally agreed that the plaintiff [Mr Monteleone] suffers from two problems associated with his right hand impeding permanent relief, being:

(1) the involvement of a nerve in scar tissue located between the thumb and wrist, which produces shooting pains up his right arm; and

(2) a problem of pain and tenderness across the dorsal side of his hand into his wrist.

[220] According to Professor Spira, the plaintiff suggested that his main problem related to the shooting pains up his right arm. Professor Spira believes that that problem can be fixed. As he said, if the plaintiff wanted to know what the result of the treatment would be, he need only have a local anaesthetic which would numb the whole area.

[221] Professor Brew agreed that the plaintiff could have such treatment but did not agree that the outcome would be as certain as Professor Spira considers.

[222] In terms of the second problem, the doctors did not consider that there was any simple solution, albeit, Professor Spira emphasised that, at least based on the plaintiff’s complaints, if the first problem was solved then the degree of limitation of movement and pain which the plaintiff experiences would be reduced.”

14. The Thorns also relied on medico-legal reports from Dr David Maxwell, an orthopaedic surgeon, and Associate Professor Allan Meares, a plastic and general reconstructive surgeon.

15. Importantly, there was also surveillance film of Mr Monteleone which formed a central role in the Thorns’ case.

THE PRIMARY JUDGMENT

16. For the reasons that are, when necessary, referred to below, the primary judge assessed the damages to which Mr Monteleone was entitled as follows:

“Non-economic loss = $275,000

Past economic loss ($87,600 + $78,000 + $132,600) = $298,200

Future loss of earning capacity ($354,365 + $150,000) = $504,365

Loss of superannuation = $88,282

Past gratuitous care = $45,240

Future commercial care = $112,584

Past out-of-pocket expenses = $59,299.86

Future out-of-pocket expenses = $30,000

Fox v Wood = $8,000

Total = $1,420,971”.

The primary judge later added the sum of $14,368 for interest on past economic loss, bringing the judgment total to $1,435,339 ([2021] NSWSC 729).

DETERMINATION OF THE APPEAL

GROUND 1: “THE TRIAL JUDGE ERRED IN HIS EVALUATION OF THE UTILITY OF THE SURVEILLANCE EVIDENCE”

GROUND 2: “THE TRIAL JUDGE ERRED IN HIS ACCEPTANCE OF [MR MONTELEONE’S] SUBJECTIVE COMPLAINTS OF DISABILITY AND RESTRICTIONS WHEN SUCH EVIDENCE WAS CONTRADICTED BY OBJECTIVE EVIDENCE, INCLUDING THE SURVEILLANCE EVIDENCE AND THE MEDICAL EVIDENCE OF PROFESSOR MEARES AND DR SPIRA, WHO EACH COMMENTED ON THAT EVIDENCE”

The primary judge’s consideration of the surveillance evidence

17. The primary judge gave detailed consideration to the surveillance film which he described as showing Mr Monteleone performing various manual activities using his right hand and arm. His Honour listed 13 such activities, being:

“(1)    pulling two green wheelie bins with one in each hand;

(2)    using a long handle shovel to move mulch; the film lasted two minutes and did not show him actually digging anything;

(3)    carrying a large piece of metal with both hands;

(4)    undertaking some loading of the tray of his ute with some goods and materials, albeit the goods and materials do not seem particularly heavy;

(5)    driving a car;

(6)    moving things around a caravan, such as tyres and a jerry can;

(7)    operating a tyre jack;

(8)    cleaning up his own caravan and throwing things out of the caravan;

(9)    sitting in a hotel drinking and smoking using his right hand, including rolling cigarettes;

(10)    filling up an empty jerry can and then placing it back on the ute with his right hand;

(11)    helping out various persons with various activities;

(12)    assisting a repairer with the repair of his car; and

(13)    playing with his children, including kicking a football.”

18. His Honour’s observations and conclusions concerning the surveillance material included the following:

“[227] The [surveillance] reports reveal that the defendant [the Thorns] arranged for 328 hours of surveillance of the plaintiff between 2016 and 2020. Five hours of surveillance film was taken during this period. That was distilled into less than two hours of film which was then shown to the plaintiff as he sat in the witness box.

[228] In my view, surveillance film is sometimes overused and overrated. Injured persons often do their best to go about their daily lives while waiting for their cases to be heard, despite suffering pain and despite being unable to perform the work that they may have been performing prior to the accident. This view is supported by the psychiatrist who gave evidence in these proceedings, Dr Fisher.

[229] Film of a person lifting objects occasionally must be viewed in the context of the full nature and extent of the injuries and, in particular, the type of work which the person used to perform. For example, film of the plaintiff in this case using a shovel to move some mulch without actually doing any hard digging hardly demonstrates that he is fit to work as a farm labourer or stockman 10 hours a day. Film of the plaintiff driving his utility for periods hardly demonstrates that he could be a truck driver.

…

[234] Whilst the film tended to show that the plaintiff could do more in terms of domestic work and odd jobs, none of the film suggests that the plaintiff has been in regular work or that he has been doing anything of a repetitive nature (other than drinking).

[235] The value of the film in this matter is that it tends to suggest that:

(1) The plaintiff’s claim for domestic assistance is overstated.

(2) The plaintiff has been performing some limited occasional work, although I should not use surveillance film taken on a particular day to somehow find that the plaintiff has been working extensively. Indeed, the defendant submits that the plaintiff had only been doing limited work so as to maximise his claim. Further, the defendant submits that I should find that, at least in the latter years, the plaintiff has been quite deliberately not working because he is focussed on gaining the maximum benefit from this case.

…

[237] In my view, there is some disconnect between the statements seemingly made by the plaintiff to the medical practitioners who have examined him for the purposes of this case and what is shown on the film, in terms of his ability to use and move his right hand and arm. Further, that view is supported at least to a certain extent by the comments of the doctors who were shown the film. In particular, Professor Spira and Associate Professor Meares expressed doubts as to the consistency between presentation and the activities on film.

[238] Having said that, as the Court has often said, caution should be exercised in necessarily accepting the history set out in doctors’ reports. Further, the expert evidence in relation to the film did not lead to any expert suggesting that the plaintiff was fit for his pre-accident work or that the plaintiff was not experiencing pain.”

19. At a number of points later in his judgment the primary judge made further reference to the surveillance evidence (see [253], [254], [278], [291], [295] and [301]).

The Thorns’ submissions

20. The Thorns contended that “the surveillance footage captured [Mr Monteleone] doing things he claimed he cannot do” and proved that “at times [Mr Monteleone] can engage in heavy and strenuous activity” and can use “fine motor skills, such as using his right hand and thumb to roll cigarettes, open a door and drink beer”.

21. A difficulty for the Thorns with these submissions is that, as Mr Monteleone put it, the Thorns do not assert that “there is anything truly remarkable in the surveillance material”. Rather, to the extent that inconsistencies with Mr Monteleone’s evidence may be perceived, they are matters of degree requiring careful evaluation by the Court of their significance. This was precisely what the primary judge did.

20. His Honour did not dismiss the surveillance evidence out of hand. Rather, he carefully assessed it and recognised that it provided some assistance to the Thorns’ case because it was, to a degree, inconsistent with some of the medical evidence and with Mr Monteleone’s statements to the medical practitioners (see Judgment [237] and [238] quoted in [18] above). His Honour ultimately concluded however that it was significant that “the expert evidence in relation to the film did not lead to any expert suggesting that the plaintiff was fit for his pre-accident work or that the plaintiff was not experiencing pain” (ibid). The Thorns did not establish that this critical conclusion was incorrect, nor was it in fact the subject of any specific ground of appeal.

21. In these circumstances, the Thorns’ submission that the primary judge “erred in failing to give [the surveillance evidence] significant weight…” cannot be accepted. Clearly he did. In any event, that submission, even if accepted, would not establish appellable error in relation to his Honour’s factual findings, the principal of which “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence” (Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]). The present case stands in contrast to a case such as State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 where the trial judge had failed to consider “the real strength of the body of evidence” tendered by the appellant (at [64]). In contrast, the primary judge in the present case carefully considered and assessed the material evidence.

22. Contrary to the Thorns’ submission, a review of the surveillance footage does not prove by “objective incontrovertible evidence” that Mr Monteleone was deliberately making false complaints about the extent of his restrictions or incapacities. To support this proposition it is sufficient to refer to a couple of key examples of acts shown in the film.

23. One act relied upon by the Thorns and demonstrated in surveillance footage taken on 13 October 2016 is that of Mr Monteleone using a long handled shovel with both hands, when he later told an occupational therapist that he could not use a shovel. However it seems apparent from the two minutes or so of footage that (as observed by the primary judge) Mr Monteleone is not actually digging with the shovel. In cross-examination Mr Monteleone qualified his earlier denial of his ability to use a shovel by stating that that applied to “things I used to do like digging a big post hole … or shovelling garden beds”, which involved hours of shovelling. There is also doubt as to whether Mr Monteleone was mainly taking the weight of the shovel with his left hand (as was suggested by his occupational therapist Ms Mullen), whether he appeared to be in pain, and whether he could have sustained this activity for hours. Although the “shovelling” footage was just one piece of evidence in the “jigsaw” relied upon by the Thorns, it demonstrates why the footage did not, as the Thorns suggested, necessarily indicate that Mr Monteleone was deliberately lying or exaggerating his injuries. The primary judge was bound to take it into account, but he clearly did this.

24. Another act depicted in the surveillance footage is Mr Monteleone talking with strangers at a hotel and drinking, which the Thorns contended put his “claims of being isolated and psychiatrically injured in question”. However, as was observed by Dr Fisher (consultant psychiatrist), activities such as attending a club or going on a holiday are not inconsistent with a diagnosis of depression. Furthermore, Mr Monteleone was cross-examined on this evidence and explained that although he feels depressed, he can socialise with people on “limited occasions”. The primary judge referred to this evidence at length and clearly took it into account. Again, this was evidence to be weighed in the balance with all the other evidence, but it did not need to be given the force for which the Thorns contended.

The remainder of Ground 2 – medical evidence

27. Apart from its reliance on the surveillance evidence, Ground 2 alleges inconsistency between Mr Monteleone’s evidence of his disabilities and restrictions and the medical evidence of Associate Professor Meares and Professor Spira.

28. The primary judge acknowledged that some of the evidence of these two doctors assisted the Thorns. For example, he noted that Professor Meares said that “in the surveillance there appears to be at no time that [Mr Monteleone] has problems in carrying out tasks with his injured right upper extremity”. Further, his Honour noted that Professor Spira “felt that the surveillance film indicated that [Mr Monteleone] could do more than he maintained”. Whilst acknowledging this, his Honour concluded that the surveillance film did “not support the contention that [Mr Monteleone] could perform [physical work] on a regular, repetitive or daily basis”. On appeal the Thorns were not able to establish, by reference to the surveillance or any other evidence, that this conclusion of the primary judge was incorrect.

Other credit issues

29. In their written submissions in relation to Grounds 1 and 2, the Thorns refer to various credit issues, such as Mr Monteleone’s alcohol consumption, but these extended beyond the ambit of the grounds of appeal and were not responded to in detail by Mr Monteleone. It is sufficient to say about them that, even accepting the Thorns’ description of them, none can be regarded as of a decisive character that stands starkly inconsistent with the primary judge’s general acceptance of Mr Monteleone’s evidence, nor is there any reason to think that his Honour overlooked any of the matters (they having been relied on by the Thorns at the trial).

GROUND 3: “THE TRIAL JUDGE ERRED IN REJECTING THE EVIDENCE OF DR MAXWELL WHEN THAT DOCTOR WAS NOT CROSS EXAMINED ON HIS REPORT”

30. This ground is confined to a complaint that because Dr Maxwell was not cross-examined, the primary judge ought not to have rejected his evidence. The absence of that cross-examination did not however preclude the primary judge from accepting other medical evidence in preference to that of Dr Maxwell, as he did, as the matters upon which Dr Maxwell opined were in issue in the proceedings.

31. That the rule in Browne v Dunn does not apply in these circumstances was indicated by me in Yebdoo v Holmewood [2021] NSWCA 119 as follows:

“[57] … As explained in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, the principles in Browne v Dunn do not apply if ‘notice has already clearly been given of the cross-examiner’s intention to rely upon’ the relevant matters (at 16C-D; see also 26E-F). More recent authority is to the same effect (see Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [287]-[288] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [138]-[144]).”

32. As McColl AP said in Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 (with my concurrence):

“[287] What is customarily referred to as the rule in Browne v Dunn, requires an opposing party ‘to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of [the witness’s] evidence’. The rule in Browne v Dunn [(1893) 6 R 67 (HL)] is one of practice or procedure and also a rule of professional practice based upon general principles of fairness, designed to achieve not only fairness to a witness, but also a fair trial between the parties.

[288] However, [as] Beazley P explained in NU v NSW Secretary of Family and Community Services [(2017) 95 NSWLR 577; [2017] NSWCA 221], the corollary of the rule is that ‘if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter.’ Also of relevance is her Honour’s application of Campbell JA’s statement in Masterton [[2009] NSWCA 234; (2009) 261 ALR 382].

‘While the evidence was not cross-examined on, that does not necessarily mean that the judge was obliged to accept it. A judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible.’” (Footnotes omitted.)

33. Furthermore, the Thorns’ submissions in relation to this ground of appeal impermissibly extend well beyond its scope to contend that the primary judge should, for a variety of reasons, have accepted Dr Maxwell’s evidence in preference to other medical evidence. No persuasive reason was however advanced as to why the primary judge should have done that. His Honour carefully analysed all of the evidence and gave detailed reasons for his conclusions. Importantly the Thorns did not by way of a ground of appeal or by a statement under r 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) challenge the primary judge’s most significant conclusion:

“[250] It is significant that, other than Dr Maxwell, none of the treating doctors or medico-legal practitioners suggest that the plaintiff could have returned or could now return to the type of regular constant heavy work that he was performing prior to the accident.”

34. For these reasons Ground 3 should be rejected.

GROUND 4: “THE TRIAL JUDGE ERRED IN THE WEIGHT HE ATTACHED TO THE EVIDENCE OF DR FISHER RELATING TO WHETHER OR NOT [MR MONTELEONE] HAD A PRE-EXISTING PROBLEM WITH ALCOHOL CONSUMPTION”

35. This ground of appeal is concerned with the primary judge’s findings that in the years prior to the accident Mr Monteleone did not regularly drink to excess but as a result of the accident “spends large periods of time consuming excessive quantities of alcohol as some form of solace or pain limiter”.

36. These findings were heavily, although not wholly, dependent on his Honour’s credit-based acceptance of Mr Monteleone’s evidence. In these circumstances, the ground of appeal, in making a complaint about the “weight” that the primary judge gave to Dr Fisher’s evidence and not incorporating an appropriate challenge to Mr Monteleone’s evidence on this topic, does not reveal a proper basis for reversing his Honour’s findings. To achieve that, the Thorns would have had to contend, and establish, that the findings were contrary to compelling inferences or glaringly improbable (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). They did not point to any evidence that met this standard.

37. In these circumstances, this ground of appeal should be rejected. I add that a submission made, again beyond the scope of the ground of appeal, that a Jones v Dunkel inference should have been drawn against Mr Monteleone for a failure to call his former wife on the issue of his alcohol consumption, should also be rejected, for the reasons given in [54] below in relation to Grounds 9 and 10.

GROUND 5: “THE TRIAL JUDGE ERRED IN HIS ASSESSMENT OF NON-ECONOMIC LOSS”

38. For the purposes of s 16 of the Civil Liability Act 2002 (NSW), the primary judge assessed the severity of Mr Monteleone’s non-economic loss at 40% of a most extreme case. This warranted his Honour’s award of $275,000 for that loss.

39. The Thorns recognised that this assessment involved an evaluative judgment but submitted that the assessment was “outside the reasonable range of damages” that could be expected.

40. This submission cannot be accepted in the absence of any of the Thorns’ other grounds of appeal being upheld as the finding was within the available range if his Honour’s findings as to Mr Monteleone’s disabilities stand. As I consider that each of those grounds should be rejected, Ground 5 should also be rejected.

GROUND 6: “THE TRIAL JUDGE ERRED IN HIS ASSESSMENT OF PAST ECONOMIC LOSS AND SHOULD HAVE FOUND THAT [MR MONTELEONE] HAD NOT ATTEMPTED TO EXPLOIT HIS EARNING CAPACITY”

GROUND 7: “THE TRIAL JUDGE ERRED IN AWARDING DAMAGES FOR FUTURE ECONOMIC LOSS AND IN HIS ASSESSMENT OF FUTURE ECONOMIC LOSS AND SHOULD HAVE FOUND THAT [MR MONTELEONE] HAD NOT ATTEMPTED TO EXPLOIT HIS EARNING CAPACITY”

41. These grounds of appeal are limited in their ambit but, as in relation to many of their other grounds, the Thorns’ submissions go well beyond this ambit. Not only have Mr Monteleone and the Court been denied the benefit of appropriately expressed grounds of appeal but also the difficulty resulting from the absence of a r 51.36(2) UCPR statement is emphasised. The Court should not have to attempt to identify from unstructured and discursive submissions the precise points and bases of the Thorns’ challenges.

42. As framed, Grounds 6 and 7 are not concerned with the detail of the primary judge’s calculations supporting his awards of $298,200 in respect of past economic loss and $504,365 in respect of future loss of earning capacity. Instead they raise two broad questions: first, whether Mr Monteleone had, and will have in the future, earning capacity beyond that which he acknowledged in the proceedings, and secondly, whether he has exploited and will exploit that capacity.

43. The former question is answered by the primary judge’s findings concerning Mr Monteleone’s disabilities and restrictions to which I have found that the Thorns have not made any successful challenge. The second question is answered by the primary judge’s at least implicit finding that Mr Monteleone has used and will use such an incapacity as he has and by the judge’s explicit refusal to find that Mr Monteleone “has simply been waiting around for his case to finish before going back to work or that he has in some way sought to maximise his return from the case by not doing any work” (Judgment [255]). Again these were credit-based findings which have not been successfully challenged.

44. Turning to the submissions outside the ambit of the ground of appeal, I note first that the primary judge found that prior to his accident Mr Monteleone had worked in a large range of agricultural farming-type activities, albeit not at a managerial level. His Honour found that working for the Kellys was only one of the activities that Mr Monteleone undertook and that his activities were capable of producing an increased income over time. After considering all of the evidence his Honour found that Mr Monteleone had had a realistic prospect of becoming a farm manager and that Mr Kelly’s evidence as to Mr Monteleone’s work ethic and attributes supported that proposition.

45. The primary judge noted that whilst Mr Monteleone had limited earnings in his twenties, after the accident he had at least another 36 years left in his working career and that at the time of the accident Mr Monteleone was running a small property as well as working for the Kellys. In addition, Mr Monteleone was renting a property at Rugby for $1 a week in return for providing some assistance to the property owners.

46. His Honour concluded that Mr Monteleone was unfit after the accident for performing his pre-accident activities other than on a limited or sporadic basis:

“[284] Having regard to all of the activities he was undertaking (which were not the subject of challenge), I accept that his income would have increased over time, either because his own ventures would lead to income or because he would stop helping others such as his property owner and his parents and focus on working for others for income.”

47. The Thorns criticised the figures that the primary judge adopted but his Honour was undertaking an exercise that was inherently evaluative. Having regard to what Mr Monteleone had been earning with the Kellys before the accident, the likelihood of his earnings increasing over time and the existence of his other activities, his Honour adopted estimates of the amounts by which Mr Monteleone’s earnings after particular periods would have been likely to increase over time, but for the accident. The figures that his Honour adopted were not in my view shown by the Thorns to have been outside the range of reasonable estimates. The Thorns referred for example to his Honour’s starting figure of $600 net per week reflecting an approximation of what Mr Monteleone had been earning when working with the Kellys. Whilst the evidence suggested receipts by Mr Monteleone from the Kellys of in the order of $500 gross per week, Mr Monteleone had the benefit of essentially rent-free accommodation on a property, subject to him doing some jobs for the owners, which Mr Monteleone said had included some property maintenance, renovations, earthworks, fencing and gardening. The value of that benefit would have been considerable. Mr Monteleone’s evidence was that his family left that property and moved to a rental in Cootamundra a few months after the accident because his then wife was pregnant and they were “having a lot of trouble upkeeping the place … and doing all the things that entailed living on that property”, as well as to be closer to doctors and hospitals and the children’s schools.

GROUND 8: “THE TRIAL JUDGE ERRED IN AWARDING AN ADDITIONAL BUFFER FOR FUTURE ECONOMIC LOSS AND THE EVIDENCE DID NOT SUPPORT SUCH A FINDING BUT ON THE CONTRARY, SUPPORTED AS THE MOST PROBABLE OUTCOME, THAT [MR MONTELEONE] WOULD CONTINUE TO PERFORM CONTRACT WORK FOR NO MORE THAN 25 HOURS PER WEEK ON AVERAGE DURING HIS WORKING LIFE”

48. After estimating stepped increases in the income Mr Monteleone would have earned but for the accident, the primary judge adopted $900 per week net on an ongoing basis, and continued:

“[286] … I must have regard to both the potential for his earnings to have increased undertaking farm contracting work and the prospect of him operating his own property and the prospect of him obtaining work as a farm manager on a longer-term basis. Bearing in mind that he is only 39, I would allow a further buffer on account of all those matters. Indeed, on the basis that he might have worked to the age of 70, there is a further 40 years left when he could have exercised his earning potential.”

49. His Honour referred to this buffer further as follows:

“[292] I allow a further buffer of $150,000 on account of the prospect that he might have become a farm manager at some time or that one or more of the entrepreneurial activities which he was pursuing might have developed over time. It is not possible to identify when he might have become a farm manager or to what extent he might have successfully operated his own farm but I am satisfied that the accident has deprived him of the opportunity to earn an income from such activities and that the prospects were more than speculative.”

50. I reject the Thorns’ submission that the matters to which his Honour referred did not justify the award of a further buffer. His Honour’s use of $900 per week on an ongoing basis from 1 January 2018 did not allow for further increases that could have been expected to Mr Monteleone’s earnings over his long remaining working life. It would have been open to the primary judge to provide for the $900 per week to be further stepped up after identified periods, say, 5 or 10 years, or both, after the accident. Instead, his Honour, not inappropriately, allowed the further buffer which he described.

51. There was no error in his Honour allowing for the prospect that Mr Monteleone might become a farm manager. That was not simply an aspiration of which Mr Monteleone gave evidence but, as his Honour said, was a prospect supported by the evidence, including, in particular, that of Mr Kelly (see [44] above).

GROUND 9: “THE TRIAL JUDGE ERRED IN AWARDING DAMAGES FOR PAST GRATUITOUS CARE”

GROUND 10: “THE TRIAL JUDGE ERRED IN AWARDING DAMAGES FOR FUTURE COMMERCIAL CARE AND IN HIS ASSESSMENT OF FUTURE COMMERCIAL CARE”

52. The primary judge assessed Mr Monteleone’s entitlements in respect of past and future care as follows:

“(1)    15 December 2013 to 1 July 2015 — 78 weeks at 10 hours per week at $28 per hour = $21,840;

(2)    1 July 2015 to 31 December 2017 — 130 weeks at 6 hours per week at $30 per hour = $23,400; and

(3)    Commercial care for the future — 3 hours per week for 43 years (938.2 at the amount claimed by the plaintiff of $40 per hour) = $112,584.”

53. In his reasons supporting these awards, his Honour took into account matters that favoured the Thorns’ position where he considered that was warranted. For example, he limited the amount in respect of gratuitous care because he considered that Mr Monteleone “has been caring for himself in terms of his personal care and limited other needs” and that “the surveillance film tends to suggest that he can carry out a wide range of domestic tasks”. Similarly, his Honour did not accept that Mr Monteleone “would be incapable of doing things such as washing his car occasionally” or that Mr Monteleone was unfit for “undertaking the sort of occasional short-term domestic tasks which formed the basis of his much higher claim” than the amounts his Honour awarded. This demonstrates that his Honour’s approach was a balanced, thoughtful one.

54. To a large extent the Thorns’ submissions concerning these grounds were dependent upon their earlier grounds of appeal succeeding, which they have not. There was not, as the Thorns submitted, “no proper evidence upon which the trial judge could make any allowance for past care provided by others”. This submission did not acknowledge that the primary judge had the evidence of Mr Monteleone which he was entitled to accept in whole or in part. Contrary to the appellant’s submission, his Honour was not obliged to draw a Jones v Dunkel inference arising from the absence of Mr Monteleone calling his former wife to give evidence. One reason at least why that was so is that the appellant did not draw this Court’s attention to any circumstance which would indicate that his ex-wife was a person whom it would have been natural for him to call (see Payne v Parker [1976] 1 NSWLR 191 at 201F). Her status as an ex-wife did not establish that, nor did the fact that she at some stage had given a witness statement to Mr Monteleone.

55. The Thorns also asserted that Mr Monteleone should have called Mr Keith Goode, who was the elderly owner of the property on which Mr Monteleone had been residing in a caravan since about May 2018 (and whom Mr Monteleone asserted was providing care to him at the time of the hearing), and Ms Goodman, who was Mr Monteleone’s partner from about November 2019. The primary judge did not however rely on or refer to any care provided by Mr Goode or Ms Goodman in awarding damages for past gratuitous care. His Honour only awarded such damages to December 2017, which was prior to Mr Monteleone living with Mr Goode and prior to him being in a relationship with Ms Goodman. His Honour considered that “[Mr Monteleone] has been caring for himself in terms of his personal care and limited other needs” since that time and “the surveillance film tends to suggest that he can carry out a wide range of domestic tasks”.

56. A particular submission made by the Thorns in the context of future care was that his Honour should have, but did not, include a discount for vicissitudes. This point was not however taken before the primary judge and in any event it is not apparent that the primary judge did not, in his estimates, take into account the vicissitudes of Mr Monteleone’s life ahead of him.

57. The Thorns further contended that an award for future care should not have been made “at all” because Mr Monteleone could have further treatment to alleviate his pain, as suggested by Professor Spira. There was however doubt as to whether such treatment would in fact improve Mr Monteleone’s condition (see [61] below) and, further, the primary judge in any event indicated that he had taken the possibility into account. His Honour said in this respect that he had had “regard to the prospect that [Mr Monteleone] may have further treatment which may improve his condition”. He then decided to allow 3 hours per week for future care.

58. In these circumstances and as the appellant did not establish that his Honour’s assessments concerning care were outside the range of assessments reasonably open to him, these grounds of appeal should be rejected.

GROUND 11: “THE TRIAL JUDGE ERRED IN THE AWARD MADE FOR FUTURE OUT OF POCKET EXPENSES WHICH BASED ON THE OTHER GROUNDS OF APPEAL RELATING TO DAMAGES AND ON THE WHOLE OF THE EVIDENCE, WAS EXCESSIVE”

59. As this ground appears to acknowledge, success for the Thorns on it is largely, if not wholly, dependent on the Thorns’ success on some or all of its earlier grounds. They have however failed on those grounds.

60. One particular submission made by the Thorns to which reference should be made is that having allowed for the possibility of Mr Monteleone undergoing remedial treatment referred to by Professor Spira in his evidence, a “significant discount” should have been made in respect of all other heads of damage as:

“Professor Spira was confident that the relatively simple procedure could relieve the respondent of all pain which is the subjective complaint he alleges to be the cause of all ongoing incapacity and disability.”

61. This submission however ignores the fact that whilst Professor Spira expressed some confidence in the procedure having a favourable outcome, Professor Brew thought that the chances of improvement for Mr Monteleone were “not great” and he was “doubtful … that [it] would be helpful” considering the length of time Mr Monteleone has had pain. As well, Dr Meares opined that there “is no surgery which will improve [Mr Monteleone’s] condition” and Dr Hatfield said that it was “extremely difficult” to predict a need for further surgery but that “it is impossible at this point to expect much improvement”.

CONCLUSION ON THE APPEAL IN THORN v MONTELEONE

62. For the reasons I have given, each of the Thorns’ grounds of appeal should be rejected. As a result, their appeal should be dismissed with costs.

THE APPEAL IN THORN v KELLY

63. Heard with the proceedings that Mr Monteleone brought against the Thorns, whose negligence the primary judge found caused Mr Monteleone’s injuries, was an action by the Kellys, Mr Monteleone’s employers, against the Thorns. The Kellys claimed recovery from the Thorns, as third party tortfeasors, of the amount of workers compensation payments made to Mr Monteleone in respect of his accident, which occurred in the course of his employment by the Kellys.

64. A complication arose in relation to this recovery action out of the fact that the Kellys did not at the time of Mr Monteleone’s accident hold the compulsory workers compensation insurance mandated for employers by s 155 of the Workers Compensation Act 1987 (NSW) (“the Act”). In those circumstances the Nominal Insurer made workers compensation payments to Mr Monteleone totalling $212,599.71. As permitted by the Act the Nominal Insurer served notices on the Kellys, as employers of Mr Monteleone, to reimburse it. The Kellys paid $72,410.06 to the Nominal Insurer pursuant to those notices, leaving $140,189.65 of the Nominal Insurer’s workers compensation payments to Mr Monteleone not reimbursed by the Kellys.

65. Despite having only partially reimbursed the Nominal Insurer, the Kellys claim from the Thorns as third party tortfeasors, pursuant to s 151Z(1)(d) of the Act, reimbursement of the whole of the workers compensation payments made by the Nominal Insurer to Mr Monteleone. They do so on the basis that, on what they submit is the proper construction of s 151Z(1)(d), they are to be regarded as “the person by whom the compensation was paid” to Mr Monteleone, notwithstanding that in a physical sense the payments were made by the Nominal Insurer directly to him. In defence of the claim, the Thorns contend that the Kellys are not entitled to indemnity as they did not make any of the compensation payments to Mr Monteleone.

66. At first instance, the primary judge upheld the Kellys’ claim. For reasons that appear below, I agree with his Honour’s conclusion and therefore propose that the Thorns’ appeal should be dismissed.

The statutory framework

67. Section 9 of the Act provides that a worker who has received an “injury” (defined in s 4 as personal injury arising out of or in the course of employment) “shall receive compensation from the worker’s employer in accordance with this Act”. Section 155 requires employers to obtain, and maintain in force, a policy of insurance issued by a licensed insurer. By reason of s 159(2), the policy of insurance must provide that “the insurer as well as the employer is directly liable to any worker insured under the policy … to pay the compensation under this Act or other amount independently of this Act for which the employer is liable”.

68. Division 6 of Pt 4 of the Act (ss 138-148A) deals with the situation where, contrary to the requirements of s 155, the employer of an injured worker does not have insurance.

69. Section 140(1) enables an injured worker whose employer is uninsured to claim against the Nominal Insurer, an entity established by s 154A of the Act. The Nominal Insurer is responsible for managing the operation of the Workers Compensation Insurance Fund established by s 154D.

70. Section 142A(1) provides as follows for the Nominal Insurer to assume the role of the insurer of the otherwise uninsured employer:

142A Nominal Insurer becomes insurer for claims

(1) Subject to this section and the regulations, the provisions of this Act and the 1998 Act apply to and in respect of a claim under this Division as if the Nominal Insurer were the insurer under this Act of the relevant employer at the relevant time.

71. Section 145 enables the Nominal Insurer, by notice, to require an uninsured employer to reimburse the Insurance Fund for any workers compensation payments made to an injured worker, although under sub-s (2) the employer’s liability may be waived by the Nominal Insurer in certain circumstances including if the Nominal Insurer is satisfied that the amount in question is “beyond the capacity of the employer to pay”.

72. Section 148 is relevantly in the following terms:

148 Application of other provisions of Act

(1) For the purposes of section 13 (3), the Nominal Insurer is to have the same entitlement to recover payments it has made to a worker in respect of a claim under this Division as an employer has in respect of payments the employer has made to a worker under section 13.

(2) If a worker has received payments in respect of a claim under this Division, the payments are to be treated as compensation or work injury damages (as appropriate) recovered by the worker for the purposes of—

…

(b) section 151Z of this Act.

…

73. Section 148A provides that if the Nominal Insurer has paid or is liable to pay an amount as compensation for which an employer is liable, the Nominal Insurer is subrogated to any right of the employer to recover that payment from any other person.

74. Section 151Z(1) deals with the recovery of workers compensation payments where the worker’s injury is caused by a person, other than the employer, who is liable to pay damages in respect of the injury. It is in the following terms:

151Z Recovery against both employer and stranger

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect—

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation,

Note—

See also section 151N of this Act and section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 in relation to the application of other laws concerning contributory negligence.

(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),

(e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,

(e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,

(f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.

The primary judgment

75. The primary judge gave a number of reasons for concluding that the employers’ construction of s 151Z(1)(d) (see [65] above) was correct. First, his Honour considered that the Thorns’ “literal or grammatical construction” requiring identification of the person who made the payment in a physical sense would be contrary to the evident policy of the section to ensure that employers do not ultimately bear the burden of compensation payments when there is a third party who is liable to pay damages in respect of the worker’s injury.

76. Secondly, his Honour noted that by reason of s 9 of the Act, compensation is payable by the employers and there is no provision which deems an insurer to be the compensation payer. His Honour continued:

“[353] … The construction contended for by the defendant [the Thorns] would create an anomalous situation whereby the party who actually suffered the loss (being the employers in this case) could not recover the loss despite the clear intention of s 151Z(1)(d) to apportion responsibility between the party liable to pay the compensation (the employer) and the third-party tortfeasor.”

77. Thirdly, his Honour considered that “[i]n practical terms, the compensation was paid by the employers, albeit, it was initially paid by the Nominal Insurer” and it was consistent with the Act as a whole to have regard to this practical position.

Determination of the appeal

78. In support of their appeal, the Thorns submitted that the payments made by the Nominal Insurer as workers compensation were properly regarded as paid by it, not by the Kellys, and submitted that any payments made by the Kellys to the Nominal Insurer were not payments of compensation. They submitted that, on the contrary, the payments were reimbursements of debts pursuant to statutory demands made by the Nominal Insurer under s 145(1) of the Act.

79. The Thorns pointed out that there is no obligation on the Nominal Insurer to commence indemnity proceedings against a third party tortfeasor under s 151Z(1)(d) where the employer was uninsured. They submitted that it was open to the Nominal Insurer instead to seek reimbursement of compensation paid from the employer, as occurred in the present case.

80. They then referred to s 148A of the Act, pursuant to which the Nominal Insurer is subrogated to any rights of the employer to recover from others compensation it has paid to the worker, and submitted that the employer who has had its liability to pay compensation satisfied by the Nominal Insurer has no corresponding right of subrogation to any rights of recovery available to the Nominal Insurer.

81. Looked at broadly, the intent and effect of the Act, so far as is presently relevant, is that compensation for an injury occurring in the course of employment is payable to a worker by the employer, irrespective of the insurance position of the employer. Section 9, which imposes an obligation to pay on the employer, is not qualified by reference to the employer’s insurance position. Further, the intent and effect of s 151Z is that if there is a person other than the worker’s employer who is liable to pay damages in respect of the injury, that third party should bear the cost of workers compensation paid to the worker.

82. The Thorns’ submissions on appeal appeared implicitly to accept that in the usual situation where a worker’s employer has the insurance that s 155 of the Act requires it to have, the employer may claim from the third party tortfeasor under s 151Z(1)(d) an indemnity in respect of workers compensation payments it has made to the worker, whether those payments were made out of the employer’s own bank account or were made directly by the insurer to the worker to discharge the employer’s workers compensation liability to the worker. As the Thorns said in their written submissions in reply:

“[11] It is uncontroversial that ‘the person by whom the compensation was paid’ in section 151Z(1)(d) includes any insurer who pays compensation as well as the employer ‘on whose behalf and at whose request compensation is paid’: State Rail Authority of NSW v Sun Alliance & Royal Insurance Australia Limited [2003] NSWCA 288; 58 NSWLR 561 at [22].

[12] However, that is only if the insurer is discharging the liability of the employer rather than its own direct liability under the Act: Cockatoo Docks & Engineering Co Pty Ltd v Dalgety & Co Ltd [1939] NSW St Rp 27; (1939) 39 SR (NSW) 295 at 303-304; Coles Supermarkets Australia Pty Ltd v Ready Workforce Pty Ltd [2018] NSWCA 140 at [54].”

83. As was said by Halse Rogers J (Bavin J and Barton AJ concurring) in the Cockatoo Docks case at 304:

“If the insurance company had discharged its own liability it would have been the person entitled to indemnity and the plaintiff [employer] could not have maintained the action; but if the insurance company purports to act on behalf of the person against whom the award has been made [that is, the employer] and to discharge the liability of that person and not its own – although of course in so doing it does extinguish its own – then I think that the person on whose behalf the payment was made can properly claim to have been the person who made the payment within the provisions of s. 64 [of the (now repealed) Workers’ Compensation Act 1926 (NSW)], and to be entitled to maintain the action.”

84. As the Thorns accept, this reasoning is uncontroversial: a person, particularly a company, may be regarded as having performed an act where it is performed by a servant or agent on his, her or its behalf. It is common in such a situation to refer to the person as having done the act. Conformably with that, the reference in s 151Z(1)(d) to “the person by whom the compensation was paid” should be interpreted as referring to the person who paid or on whose behalf payment was made. That is, it should not, as the Thorns appear to have contended at first instance, be construed as a reference to the person who, in a literal sense, made the payment, such as by drawing a cheque or effecting a bank transfer.

85. On appeal the Thorns however argued that the position is different where the employer was uninsured at the time of the injury and workers compensation payments were made to the worker by the Nominal Insurer. They submitted that “there is a separate regime which applies where the employer is uninsured, so that the Nominal Insurer becomes liable to make the payments of compensation and accordingly, is the only person who can seek the indemnity”.

86. In support of this argument they relied upon s 159(2)(a) of the Act which requires employers’ policies of insurance to render “the insurer as well as the employer … directly liable to any worker insured under the policy”. Substantially the same position however obtains where an employer is not insured as by reason of s 142A of the Act the Nominal Insurer is to be treated as if it were “the insurer under this Act of the relevant employer at the relevant time”. When the Nominal Insurer or any other insurer makes a workers compensation payment to a worker it is, to the extent of the payment, discharging both its direct liability to the worker and the employer’s liability to the worker under s 9 of the Act. That is uncontroversial in the case of an insurer engaged by the employer and in my view is also the position when the payment is made by the Nominal Insurer. By the provisions to which I have referred, the Act, at least vis-à-vis the worker and any third party tortfeasor, puts the Nominal Insurer in the same position as an insurer engaged by the employer.

84. There is a difference between the insured and uninsured situations which is not in my view presently material. That is that the Nominal Insurer has a right, which it may waive in identified circumstances, to recover from the employer any workers compensation payments it has made to the worker. This provision does not have the effect that the payments were not made to the worker on behalf of the employer. Rather, it emphasises that the Nominal Insurer’s liability to the worker is a secondary liability to that of the employer, indicating that, even where an employer is uninsured, the Nominal Defendant is entitled to require the employer to bear the burden of the workers compensation payments. That conclusion is consistent with ss 148 and 148A of the Act. Section 148(2) confirms that payments by the Nominal Insurer to the worker are to be treated as compensation in the same way as payments to the worker by an engaged insurer are so characterised. Section 148A expressly confers a right of subrogation on the Nominal Insurer in respect of any rights of the employer. This in turn confirms that where the employer is uninsured, the Act’s intent is to render the relationship between the employer and the Nominal Insurer substantially the same as that between an employer and its engaged insurer.

85. The conclusion that workers compensation payments made to a worker in a direct or literal sense by the Nominal Insurer are, on the proper construction of the Act, in law payments of workers compensation made by the employer to the worker ensures, consistent with the apparent intent of s 151Z(1)(d), that the burden of workers compensation payments can be passed on by the employer to a relevant third party tortfeasor, if one exists. Otherwise, the Nominal Insurer could exercise its right of recovery from the employer under s 145, as it has in part done in the present case, but the employer would not be able to recover from the third party tortfeasor payments it made to the Nominal Insurer. On the Thorns’ argument the position would be no different if the Nominal Insurer exercised its statutory right of subrogation and sued the third party tortfeasor for indemnity under s 151Z(1)(d) using the employer’s name: on the logic of the Thorns’ argument, because the claim was made in the employer’s name, nothing would be recoverable, even to the extent that the employer may have reimbursed the Nominal Insurer under s 145 of the Act, because the payments of workers compensation were made by the Nominal Insurer.

86. For these reasons, the Thorns’ appeal in the proceedings against the Kellys should be dismissed with costs.

87. SIMPSON AJA: I agree with Macfarlan JA.

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Decision last updated: 16 December 2021