1 MASON P: I agree with Cole AJA
2 SHELLER JA: I agree with Cole AJA
3 COLE AJA: The issue in this appeal involves determining the process required of a judge addressing a claim by an employer or insurer who has paid worker's compensation to an injured employee who might have, but has not, claimed damages in respect of the injury suffered by him from a third party, when such employer or insurer seeks indemnity from that third party pursuant to the provisions of s.151Z(1)(d) of the Workers Compensation Act 1987.
4 The respondent, the Royal Rehabilitation Centre, employed a Mrs Stephan who was injured on 25 September 1992 by reason of the negligence of the respondent, Mr Grant, he being the driver of a vehicle which collided with the rear of the vehicle driven by Mrs Stephan. It was not in contest that in that collision Mr Grant was at fault.
5 Mrs Stephan was paid worker's compensation by the Royal Rehabilitation Centre. The amount of compensation, at the date of trial before Christie DCJ on 13 May 1998, totalled $56,648.85 comprising $37,504 lump sum payment, $17,700 in respect of 295 weekly payments of $60 per week, and medical expenses of $1,444.85. The trial Judge held that in relation to the lump sum payment of $37,504, the employer was restricted to recovering $32,000, being the sum which would have been payable to Mrs Stephan under the Motor Accidents Act 1998 had she sued in respect of damages under that Act, Christie DCJ assessing her injuries as being equivalent to twenty-one per cent of a most serious case. With the addition of interest, Christie DCJ held that the appellant was entitled to recover from Mr Grant the sum of $64,188.
6 In reaching his decision, Christie DCJ did not determine the amount which Mrs Stephan would have been entitled to recover had she sued Mr Grant pursuant to the Motor Accidents Act. His Honour addressed the component of general damages to which I have referred, the past payments of $60 per week being representative of past economic loss, and past medical expenses. His Honour did not assess any figure for future loss of income earning capacity, nor for future medical or other expenses. Accordingly, there was no determination of the sum which Mrs Stephan would have recovered had she sued for damages.
7 Section 151Z of the Workers Compensation Act addresses the circumstances where an injured worker might recover either common law damages or workers' compensation in respect of the suffered injury. A worker may commence proceedings for both damages and compensation, but is not entitled to retain both (subs.(a)). If the worker first recovers compensation, and then damages, the amount of compensation recovered is to be repaid to the employer or insurer who made the compensation payments, and no further compensation is payable (subs.(b)). If the worker first recovers damages, he is not entitled to recover compensation (subs.(c)). Subsection (d) provides:
"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)."