Workers Compensation Nominal Insurer v Nominal Defendant

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301
Hearing dates:3 July 2013
Decision date: 11 September 2013
Before: McColl JA at [1], Basten JA at [129], Leeming JA at [141]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - motor accidents cases - where worker injured when car struck by another vehicle - details of other driver and vehicle lost - whether vehicle unidentified for purposes of s 34 Motor Accidents Compensation Act 1999 - whether due inquiry and search established

WORKERS COMPENSATION - Employer's right of indemnity against third party for compensation paid - s 151Z(1)(d) Workers Compensation Act 1987 - where worker injured when car struck by another vehicle - details of other driver and vehicle lost - whether worker or employer obliged to undertake due inquiry and search for purposes of s 34 Motor Accidents Compensation Act 1999 - whether due inquiry and search established

DAMAGES - notional assessment of economic loss - where primary judge failed to make allowance for past economic loss
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
Motor Accidents Compensation Act 1999
Motor Vehicles (Third Party Insurance) Act 1942
Workers Compensation Act 1987
Workers' Compensation and Rehabilitation Act 2003 (Qld)
Workers' Compensation Act 1926
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471
Blandford v Fox (1944) 45 SR (NSW) 241
Bonnici v Government Insurance Office of New South Wales (Court of Appeal, 16 August 1995, unreported)
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
Esso Australia Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249
Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; (2006) 67 NSWLR 516
Harrison v Nominal Defendant (1975) 50 ALJR 330
Hunter New England Area Health Service v Nominal Defendant [2008] NSWDC 13; (2008) 6 DCLR (NSW) 348
Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132
Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336
Nominal Defendant v Australian Associated Press [1982] 1 NSWLR 127
Nominal Defendant v Browne [2013] NSWCA 197
Nominal Defendant v Hi-Light Industries…
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Details
Case
[2013] NSWCA 301
Decision Date

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer (the Insurer) appealed to the Court of Appeal of New South Wales against a decision concerning a worker injured in a motor vehicle accident. The worker's vehicle was struck by another vehicle, the details of which were lost, and the worker subsequently claimed workers compensation. The dispute centred on whether the unidentified vehicle qualified as an "unidentified vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW), which would allow the Insurer to recover compensation paid to the worker from the Nominal Defendant.

The primary legal issues before the Court of Appeal were whether the worker, or by extension the employer, was obliged to undertake a "due inquiry and search" to identify the other driver and vehicle, as required by section 34 of the *Motor Accidents Compensation Act 1999* (NSW), and whether such a due inquiry and search had, in fact, been established. The Court also considered whether the primary judge had erred in failing to make an allowance for past economic loss in the assessment of damages.

The Court of Appeal held that the obligation to conduct a due inquiry and search rested with the claimant seeking to recover from the Nominal Defendant. It found that the evidence presented did not establish that a due inquiry and search had been undertaken by the worker or on their behalf. Consequently, the Court determined that the unidentified vehicle did not meet the statutory requirements to be considered an "unidentified vehicle" for the purposes of the Act. The Court also found no error in the primary judge's assessment of damages, including the absence of an allowance for past economic loss.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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