Fuller v K & J Trucks [2006] NSWCA 88

Reported Decision : 67 NSWLR 516

New South Wales Court of Appeal

CITATION: Fuller v K & J Trucks [2006] NSWCA 88

HEARING DATE(S): 17 March 2006

JUDGMENT DATE: 26 April 2006

JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Bryson JA at 7

DECISION: Appeal dismissed with costs.

CATCHWORDS: WORKERS COMPENSATION - recovery by employer of indemnity from tortfeasor for compensation paid to worker - worker was injured in collision between his motorcycle and tortfeasor's 4WD - worker did not sue for damages – employer sued for indemnity WCAct 1987 s.151Z(1)(d) and recovered indemnity below compensation paid and limited to one half of worker's damages after 50% reduction for contributory negligence - tortfeasor challenged inclusion of worker's non-economic loss in assessing tortfeasor's liability to pay damages because degree of permanent impairment had not been assessed by medical assessor under MACA 1999 Part 3.4: see s.132(1) - tortfeasor contended that unless the machinery had been followed, worker had no entitlement to damages for non-economic loss and hence that element should not be included in assessment of liability to pay damages in respect of the injury referred to in s.151Z(1). HELD: Pt. 3.4 and s.132(1) did not apply to claim by employer for indemnity.

Law Reform (Miscellaneous) Provisions Act 1946 (NSW) s.5(1)(c) LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW) ss.3, 5, 6, 43, 44(1)(d), 58, 59, 60, 61, 64(3), 94, 95, 122(1), 122(2), 131, 132(1), 133(1), 134 Workers Compensation Act 1987 (NSW) ss.10, 151Z, 151Z(1)(d), 151Z(2)(c) & (d)

Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 Cory & Son Ltd v France, Fenwick & Co. Ltd [1911] 1 KB 114 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd ; Brimac Pty Ltd v Johnston [2005] NSWCA 423 Government Insurance Office (NSW) v C.E. McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492 Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263 Hamilton v Merck & Co. Inc [2006] NSWCA 55 CASES CITED: Harding v Lithgow Municipal Council (1937) 57 CLR 186 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Kavanagh v Sutherland Shire Council & Anor [2000] 21 NSWCCR 1 Shirwell v Hackwood Estates Co. Ltd (1938) 2 KB 577 Smith's Dock Company v John Readhead & Sons [1912] 2 KB 323 Tickle Industries Pty Ltd v Hann & Richardson (1974) 130 CLR 321 Tooth & Co. Ltd v Tillyer (1956) 95 CLR 605 Tuckwood v Mayor of Rotherham [1921] 1 KB 526 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207