SANDERS v NADOW TRAINING PROGRAM LTD [1995] NSWCA 413

SANDERS v NADOW TRAINING PROGRAM LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 10 April 1995, 25 May 1995 [1995] NSWCA 413

WORKERS COMPENSATION ACT APPEAL — STATUTORY CONSTRUCTION — s151Z(1)(c) FACTS The appellant was injured in a motor vehicle accident on 9 January 1992. On 21 January 1992, she lodged a claim form pursuant to the provisions of the Motor Accidents Act 1988 with the third party insurer of the driver of the other vehicle involved in the accident — QBE. On 6 February 1992 QBE admitted liability on behalf of its insured and thereafter, it made a number of payments both on behalf of the appellant to the providers of services, such as doctors and physiotherapists as well to the appellant.

In January 1993 the appellant filed an application for determination seeking compensation under the Workers' Compensation Act 1987 in respect of injuries suffered in the accident from her employer, the respondent.

ISSUE

Whether the payments made by QBE constituted "recovered damages within the meaning of s151Z(1)(c)" of the Workers' Compensation Act?

Held (per Clarke JA; Priestley and Handley JJA concurring) The appellant has received only a small amount by way of reimbursement of net loss of income and payments have been made to service providers on her behalf. Those payments do not constitute the damages which the third party is liable to pay, although they may represent a part of those damages. As such they do not constitute the damages referred to in the introductory paragraph ons 151Z and hence do not constitute "those damages" in s151Z(1)(c).

(per Priestley JA)

The amounts paid by QBE were a payment of money on account of what (as was thought at the time) would subsequently become a legal liability of the insured to pay damages which liability QBE was bound to indemnify. Such payments may in colloquial terms be loosely thought of as part payment of damages, but in my opinion they are not in any legal sense, at the time of payment, damages recovered, as contemplated by s151Z(1)(c) of the Workers' Compensation Act 1987.