George v Survery [2009] NSWSC 5

George v Survery [2009] NSWSC 5

Section 151Z(1) applied because the defendant's negligent failures did not create any liability to pay damages until loss or damage was suffered. That liability arose when the plaintiff suffered the myocardial infarction and related injury on 22 July 2003, which was also an injury for which compensation was payable...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 January 2009
Procedural Posture
Procedural Ruling in Professional Negligence Proceedings Involving Workers Compensation Act 1987 S 151 Z(1) / Separate Determination of Question on Defendant's Notice of Motion Under UCPR Rule 28(2)
Outcome
The Court determined the separate question in favour of the plaintiff and held that s 151Z(1) of the Workers Compensation Act 1987 applies.
Legal Topics
['alternative Rights Against Employer and Third Party' 'recovery Against Both Employer and Stranger' 'separate Determination of Question' 'medical Negligence Causing Compensable Injury']
["workers' Compensation" 'professional Negligence' 'civil Procedure'] ['alternative Rights Against Employer and Third Party' 'recovery Against Both Employer and Stranger' 'separate Determination of Question' 'medical Negligence Causing Compensable Injury']

Source-derived case record

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Procedural Posture

Procedural Ruling in Professional Negligence Proceedings Involving Workers Compensation Act 1987 S 151 Z(1) / Separate Determination of Question on Defendant's Notice of Motion Under UCPR Rule 28(2)

Legal Issues

  1. 1 ["Whether s 151Z(1) of the Workers Compensation Act 1987 applied to the circumstances of the plaintiff's claim against the defendant medical practitioner." 'Whether the injury for which compensation was payable under the Act was the same injury in respect of which the defendant was liable to pay damages.' "Whether the plaintiff's compensable injury was caused under circumstances creating a liability in the defendant to pay damages in respect of the injury."]

Ratio Decidendi

Section 151Z(1) applied because the defendant's negligent failures did not create any liability to pay damages until loss or damage was suffered. That liability arose when the plaintiff suffered the myocardial infarction and related injury on 22 July 2003, which was also an injury for which compensation was payable under the Act. The circumstances creating the defendant's liability were therefore the same circumstances that created the compensable injury.

Court Disposition

The Court determined the separate question in favour of the plaintiff and held that s 151Z(1) of the Workers Compensation Act 1987 applies.

Orders

  • ["I declare that the plaintiff's injury for which compensation is payable under the Act was caused under circumstances creating a liability in the defendant to pay damages in respect of the injury." 'Costs are reserved.']