Aboriginal Health & Medical Research Council v The Coast Golf and Recreational Club Limited [2012] NSWDC 121

District Court New South Wales

Medium Neutral Citation: Aboriginal Health & Medical Research Council v The Coast Golf and Recreational Club Limited [2012] NSWDC 121 Hearing dates: 21/08/2012 Decision date: 23 August 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for plaintiff for $13,185.37 Catchwords: Entitlement to interest on compensation payments. Section 151Z(1)(d). Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Cases Cited: Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720 Category: Principal judgment Parties: Aboriginal Health & Medical Research Council (Plaintiff) The Coast Golf and Recreational Club Limited (Defendant) Representation: P Rickard (Plaintiff) J Sexton SC (Defendant) Stiles Lawyers Pty Ltd (Plaintiff) Thompson Cooper Lawyers (Defendant) File Number(s): 2012/00145805 Publication restriction: No

Judgment 1This is an argument about $13,185.37. This amount is the interest on workers compensation payments that were paid by an employer (via its insurer) to a worker (Ms Peggy Carter) who was injured on her way to work on 2 October 2009. 2The plaintiff's claim is made under Section 151Z(1)(d) of the Workers Compensation Act 1987 (the "WCA"). This section, in very broad summary, entitles an employer who has paid workers compensation to an injured worker to recover those payments from a third party who caused the injury to the worker and is accordingly liable for damages to the worker. 3In the present case the employer (the plaintiff) has recovered the workers compensation payments it made but also, as already stated, seeks interest. 4There is no doubt, as a general statement, that where Section 151Z(1)(d) is applicable, interest may be recovered on the amount paid under Section 100 of the Civil Procedure Act 2005 (the "CPA"). 5The defendant denies the plaintiff's entitlement to interest for two reasons both of which may be categorised as a failure on the part of the plaintiff to prove the necessary ingredients of the claim. 6I think the starting point is to set out Section 151Z(1)(d): "(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)." 7The next introductory step is to add two important facts to the chronology, Exhibit A. It can be seen from the chronology that on 14 May 2012 Ms Carter's proceedings settled in the District Court sittings in Nowra. The first point is that a Consent Judgment was handed up and orders were made accordingly. (The Consent Judgment is included in Exhibit C.) The second addition to the chronology is that on 30 July 2012 an Amended Consent Judgment was filed in the District Court at Nowra and apparently sealed by the Registrar. The only difference between the Consent Judgment and the Amended Consent Judgment (also in Exhibit C) is the addition of the words "By Consent and without admission of liability". 8I think it fair to say that the defendant accepts that if the plaintiff established the applicability of Section 151Z(1)(d) then, putting aside the rate of interest, there would be a prima facie entitlement to interest. 9The defendant, however, says that there should be no award of interest in the present case for either or both of the following two reasons: A Section 151Z(1)(d) is predicated on the third party having a "liability" to the worker to pay the damages. The defendant says that because the matter was 'settled' the plaintiff has not established any such liability. The plaintiff has not tendered or called any evidence to show that the defendant was liable to Ms Carter for damages. B The entitlement to damages under Section 100 of the CPA is discretionary. The intent is to compensate a party that has been kept out of its money for a period of time for the loss consequently suffered. Because this action is effectively between two insurers, and is therefore a commercial dispute, it is incumbent upon the plaintiff to lead evidence of the cost to it of being deprived of the moneys that were paid by way of workers compensation payments. To award interest at the court rates, as has been claimed by the plaintiff, would be to give the plaintiff a windfall because, submitted the defendant, these rates are unquestionably higher than rates that the workers compensation insurer might have achieved on a commercial basis. It was therefore incumbent upon the insurer to provide evidence of the actual cost of being out of pocket in order for the discretion to be exercised in its favour. 10I will deal with each argument in turn.