Turner v George Weston Foods Ltd

In *Turner v George Weston Foods Ltd*, the Court of Appeal of New South Wales considered an appeal concerning an employer's statutory entitlement to indemnity from a third party responsible for a worker's injuries. The dispute arose from the quantification of damages to which the worker would have been entitled had they sued the third party, and specifically, the correct date at which those damages should be assessed for the purpose of the employer's indemnity claim under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW).

The primary legal issue before the court was whether the damages to which a worker would have been entitled, for the purpose of calculating an employer's indemnity under section 151Z(1)(d), should be assessed as at the date of the accident, or at a later date, such as the date of the indemnity proceedings or the date of trial. The claimant argued that other subsections of section 151Z implied a need for damages to be assessed at an earlier point in time, suggesting a similar limitation should apply to section 151Z(1)(d).

The Court of Appeal reasoned that the right to indemnity under section 151Z(1)(d) is a statutory right, distinct from a direct claim for damages by the worker. While the assessed damages serve as an upper limit on the indemnity recoverable by the employer, the actual amount recovered is the employer's compensation payments. The court affirmed the general principle that damages for personal injury are assessed as at the date of trial, citing established authorities. No compelling reason was found to depart from this principle in the context of section 151Z(1)(d), distinguishing it from situations where a worker directly sues a third party or where negligence has prevented such a suit.

The Court of Appeal granted an extension of time for the application for leave to appeal and leave to appeal, but ultimately dismissed the appeal. The claimant was ordered to pay the costs of the opponent for both the application for leave to appeal and the appeal itself.