GRLJAK v TRIVAN PTY LTD [1996] NSWCA 233

GRLJAK v TRIVAN PTY LTD [1996] NSWCA 233

Section 151Z(2)(c) and (d) require that the damages recoverable from a third party tortfeasor be reduced by the hypothetical amount that would have been recoverable from the employer, even if the actual contribution recoverable from the employer is nil due to statutory limitations. The entitlement to bring proceedings exists, irrespective of the quantum recoverable, and the statutory scheme intends to prevent shifting of the liability from the employer to the third party.

Parties
Appellant: GRLJAK; Respondent: Trivan Pty Ltd; Third Party: Gawa Pty Ltd
Jurisdiction
Australia
Judgment Date
19 April 1996
Procedural Posture
Appeal / Court of Appeal Decision After Remittal From the High Court
Outcome
Appeal dismissed.
Legal Topics
Modified Common Law Damages, Concurrent Tortfeasors, Statutory Reduction of Damages, Contribution Between Tortfeasors
Workers' Compensation Tort Law Modified Common Law Damages Concurrent Tortfeasors Statutory Reduction of Damages Contribution Between Tortfeasors

Case Brief

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Parties

GRLJAK

Appellant

Trivan Pty Ltd

Respondent

Gawa Pty Ltd

Third Party

Procedural Posture

Appeal / Court of Appeal Decision After Remittal From the High Court

Legal Issues

  1. 1 Whether there should be any deduction from damages for personal injury recoverable by a plaintiff from a defendant not being his employer where the employer is not liable to pay damages under statutory thresholds
  2. 2 Whether the applicant was entitled on the facts to take proceedings independently of the Act to recover damages from his employer

Ratio Decidendi

Section 151Z(2)(c) and (d) require that the damages recoverable from a third party tortfeasor be reduced by the hypothetical amount that would have been recoverable from the employer, even if the actual contribution recoverable from the employer is nil due to statutory limitations. The entitlement to bring proceedings exists, irrespective of the quantum recoverable, and the statutory scheme intends to prevent shifting of the liability from the employer to the third party.

Court Disposition

Appeal dismissed.

Orders

  • Appellant to pay the costs of this appeal including the costs of both hearings.