Workers Compensation Nominal Insurer v Gary Luke by his Tutor Matthew Charles Luke

The appeal concerned the recoverability of fund management expenses as part of future economic loss in a workers compensation claim. The appellant, the Workers Compensation Nominal Insurer, appealed a District Court judgment awarding damages to the respondent, Gary Luke, who was represented by his tutor, Matthew Charles Luke. The dispute centred on the calculation of future economic loss, specifically whether expenses associated with managing a damages fund were recoverable and for how long.

The Court of Appeal was required to determine whether fund management expenses were recoverable under section 151G of the *Workers Compensation Act 1987* (NSW) and, if so, whether their recovery was limited by section 151IA of the Act, which restricts the recovery of loss of earning capacity after the age of 65. A further issue was whether such expenses could be recovered beyond the plaintiff's life expectancy.

The Court held that section 151G permitted the recovery of fund management expenses. It further determined that section 151IA, which limits recovery for loss of earning capacity after 65, did not preclude the recovery of fund management expenses after that age. However, the Court found that these expenses were not recoverable beyond the plaintiff's life expectancy. The appeal was allowed in part, with the original District Court judgment being set aside and substituted to reflect that fund management costs should be allowed on the assumption that the fund would be exhausted at the end of the plaintiff's life expectancy of 26.96 years.