Tamerji v Rhee [2008] NSWCA 314

Tamerji v Rhee [2008] NSWCA 314

On the ordinary language and purpose of s 151Z Workers Compensation Act 1987, damages recovered in respect of the injury are not divided by corresponding heads of compensation for repayment purposes. Subject to s 151Z(4) and any reduction for contributory negligence under s 10(2) Law Reform (Miscellaneous Provisions) Act 1965, the damages recovered form a single fund from which the worker must repay the total compensation paid in respect of the injury. The Employer was therefore entitled to recover from the non-future heads of damages claimed, including past medical expenses and past domestic assistance.

Jurisdiction
Australia
Judgment Date
26 November 2008
Procedural Posture
Appeal Concerning Repayment of Workers Compensation From Damages Recovered Against a Third Party / Application for Leave to Appeal and Appeal From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['recovery of Compensation Under S 151 Z Workers Compensation Act 1987' 'repayment of Compensation From Third Party Damages' 'effect of S 151 Z(4) on Damages for Future Loss' 'contributory Negligence and Reduction of Repayable Compensation' 'comparison of Workers Compensation Benefits and Motor Accident Damages']
["workers' Compensation" 'motor Accidents' 'statutory Construction' 'tort Damages'] ['recovery of Compensation Under S 151 Z Workers Compensation Act 1987' 'repayment of Compensation From Third Party Damages' 'effect of S 151 Z(4) on Damages for Future Loss' 'contributory Negligence and Reduction of Repayable Compensation' 'comparison of Workers Compensation Benefits and Motor Accident Damages']

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Procedural Posture

Appeal Concerning Repayment of Workers Compensation From Damages Recovered Against a Third Party / Application for Leave to Appeal and Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether compensation of a particular type is repayable under s 151Z(1)(b) Workers Compensation Act 1987 only from damages awarded for the corresponding type of loss.' "Whether past medical expenses incurred after the workers compensation insurer declined liability and damages for past domestic assistance were available to satisfy the worker's repayment liability to the employer." 'What effect s 151Z(4) Workers Compensation Act 1987 has on the fund of damages from which compensation is repayable.' 'What effect contributory negligence has on the calculation of compensation repayable under s 151Z.']

Ratio Decidendi

On the ordinary language and purpose of s 151Z Workers Compensation Act 1987, damages recovered in respect of the injury are not divided by corresponding heads of compensation for repayment purposes. Subject to s 151Z(4) and any reduction for contributory negligence under s 10(2) Law Reform (Miscellaneous Provisions) Act 1965, the damages recovered form a single fund from which the worker must repay the total compensation paid in respect of the injury. The Employer was therefore entitled to recover from the non-future heads of damages claimed, including past medical expenses and past domestic assistance.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed with costs.']