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)