Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11

Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11

Because Mr Alelaimat had taken proceedings against WCNI and had not yet made or refused an election about enforcing any judgment against WCNI, neither precondition in s 151Z(2)(e) was presently satisfied. Section 151Z(1) therefore did not currently operate to require Mr Alelaimat to repay compensation to WCNI or to require Synergy Scaffolding to indemnify WCNI, but it also would not be right to reduce Mr Alelaimat's damages against Synergy Scaffolding on the mere possibility that repayment may not be required in the future. WCNI's proposals to leave its cross-claim unresolved or delegate later questions to the Supreme Court were rejected, and the appeal had to be finalised on the present...

Jurisdiction
Australia
Judgment Date
07 February 2024
Procedural Posture
Consequential Orders in Workers Compensation Personal Injury Damages Appeal / On the Papers Following Principal Judgment on Appeal
Outcome
Orders identified at [57] will be made on 21 February 2024 unless orders consented to by all parties are provided to the Court before that date.
Legal Topics
['workers Compensation Act 1987 (nsw) S 151 Z' 'recovery Against Employer and Third Party Tortfeasor' 'joint Tortfeasors' 'indemnity for Compensation Payments' 'repayment of Compensation Out of Damages' 'consequential Orders' 'costs of Appeal and Cross Claims']
['workers Compensation' 'personal Injury Damages' 'civil Procedure' 'costs'] ['workers Compensation Act 1987 (nsw) S 151 Z' 'recovery Against Employer and Third Party Tortfeasor' 'joint Tortfeasors' 'indemnity for Compensation Payments' 'repayment of Compensation Out of Damages' 'consequential Orders' 'costs of Appeal and Cross Claims']

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Procedural Posture

Consequential Orders in Workers Compensation Personal Injury Damages Appeal / On the Papers Following Principal Judgment on Appeal

Legal Issues

  1. 1 ["Whether s 151Z(1) of the Workers Compensation Act 1987 (NSW) presently applies through s 151Z(2)(e) where the worker sued both the employer's insurer and the third party and has not yet enforced judgment against the employer's insurer." 'Whether WCNI is presently entitled under s 151Z(1)(d) to an indemnity from Synergy Scaffolding for workers compensation paid to Mr Alelaimat.' "Whether Mr Alelaimat's damages against Synergy Scaffolding should be reduced by amounts referable to compensation payments, including medical expenses, if he is not presently required to repay those amounts to WCNI." "What costs orders should follow from Synergy Scaffolding's partial success on appeal and the dismissal of the cross-claims."]

Ratio Decidendi

Because Mr Alelaimat had taken proceedings against WCNI and had not yet made or refused an election about enforcing any judgment against WCNI, neither precondition in s 151Z(2)(e) was presently satisfied. Section 151Z(1) therefore did not currently operate to require Mr Alelaimat to repay compensation to WCNI or to require Synergy Scaffolding to indemnify WCNI, but it also would not be right to reduce Mr Alelaimat's damages against Synergy Scaffolding on the mere possibility that repayment may not be required in the future. WCNI's proposals to leave its cross-claim unresolved or delegate later questions to the Supreme Court were rejected, and the appeal had to be finalised on the present...

Court Disposition

Orders identified at [57] will be made on 21 February 2024 unless orders consented to by all parties are provided to the Court before that date.

Orders

  • ['Appeal allowed in part.' 'Order 2 made in the Supreme Court on 18 May 2022, being judgment for WCNI against Mr Alelaimat, set aside.' 'In lieu thereof, judgment for Mr Alelaimat against WCNI in the sum of $917,686.00.' "Order 6 made in the Supreme Court on 18 May 2022, that Synergy Scaffolding pay WCNI's costs of...