Thorn v Monteleone; Thorn v Kelly

In *Thorn v Monteleone; Thorn v Kelly*, the New South Wales Court of Appeal considered challenges to an award of damages made by a primary judge to an injured respondent. The appeals concerned the primary judge's assessment of damages in negligence proceedings, specifically whether post-accident surveillance footage and medical evidence were properly taken into account, and whether the primary judge erred in making awards under certain heads of damage. The appeals also involved a question of workers compensation, specifically the construction of section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW) concerning the ability of employers to claim against a third-party tortfeasor for workers compensation payments made by the Nominal Insurer.

The Court of Appeal was required to determine whether the primary judge had made any appellable error in their credit-based factual findings and assessment of damages. Furthermore, the Court had to construe section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW) to ascertain the meaning of "the person by whom the compensation was paid" and whether employers could claim reimbursement from a third-party tortfeasor for all workers compensation payments made by the Nominal Insurer.

The Court of Appeal found no appellable error in the primary judge's findings of fact or assessment of damages, concluding that the primary judge had properly taken into account the surveillance footage and medical evidence. Regarding the workers compensation issue, the Court held that the employers were properly to be regarded as the persons by whom the compensation was paid for the purposes of section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), meaning they could claim against the third-party tortfeasor for the workers compensation payments made.

Consequently, both appeals were dismissed with costs.