TURNER v GEORGE WESTON FOODS LTD TRADING AS TIP TOP BAKERIES (NEWCASTLE); TURNER v GEORGE WESTON FOODS LTD [2007] NSWCA 67

New South Wales Court of Appeal

CITATION: TURNER v GEORGE WESTON FOODS LTD TRADING AS TIP TOP BAKERIES (NEWCASTLE); TURNER v GEORGE WESTON FOODS LTD [2007] NSWCA 67

HEARING DATE(S): 5 March 2007

JUDGMENT DATE: 30 March 2007

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Campbell JA at 5

DECISION: 1. Extend time to apply for leave to appeal.; 2. Leave to appeal granted.; 3. Appeal dismissed.; 4. Claimant to pay costs of the opponent of the application for leave to appeal and of the appeal.

CATCHWORDS: WORKERS' COMPENSATION — Alternative rights against employer and third parties — Where worker recovered compensation from employer — Employer's statutory entitlement to indemnity from third party responsible for worker's injuries — Employer's indemnity limited to damages to which worker would have been entitled had worker sued third party — Quantification of damages to which worker would have been entitled had worker sued third party — Correct date at which to assess those damages — Workers Compensation Act 1987 s 151Z(1)(d) - COURTS AND JUDGES — Appeals — Leave to appeal — Extension of time for leave to appeal — District Court Act 1973 s 127

District Court Act 1973 Interpretation Act 1987 Limitation Act 1969 LEGISLATION CITED: Motor Accidents Act 1988 Supreme Court Act 1970 Supreme Court Rules Worker's Compensation Act 1987 Workmen's Compensation Ordinance 1949-1968 (NT)

Baker v Willoughby [1970] AC 467 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Ganter v Whalland (2001) 54 NSWLR 122 Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263 Johnson v Perez (1988) 166 CLR 351 CASES CITED: Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 O'Brien v McKean (1968) 118 CLR 540 South Eastern Sydney Area Health Service v Gadiry & Anor (2002) 54 NSWLR 495 Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Willis v The Commonwealth (1946) 73 CLR 105