Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301

Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301

The appellant failed to establish, on the facts, that either the worker or the insurer had undertaken due inquiry and search sufficient to meet the requirement for a claim against the Nominal Defendant under s 34 MAC Act. As a result, the precondition for indemnity under s 151Z(1)(d) Workers Compensation Act was not met. Reasonable avenues of inquiry were available to identify the other vehicle but were not pursued. Accordingly, the appeal failed.

Jurisdiction
Australia
Judgment Date
11 September 2013
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['negligence' 'motor Vehicle Accidents' 'unidentified Vehicles' 'due Inquiry and Search' "employer's Right of Indemnity" 'statutory Indemnity' 'assessment of Economic Loss']
['torts' 'workers Compensation' 'damages'] ['negligence' 'motor Vehicle Accidents' 'unidentified Vehicles' 'due Inquiry and Search' "employer's Right of Indemnity" 'statutory Indemnity' 'assessment of Economic Loss']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the appellant established due inquiry and search for purposes of s 34 Motor Accidents Compensation Act 1999 (NSW) as precondition to claim indemnity under s 151Z(1)(d) Workers Compensation Act 1987 (NSW)' 'Whether the primary judge erred in failing to make allowance for past economic loss in notional assessment of damages']

Ratio Decidendi

The appellant failed to establish, on the facts, that either the worker or the insurer had undertaken due inquiry and search sufficient to meet the requirement for a claim against the Nominal Defendant under s 34 MAC Act. As a result, the precondition for indemnity under s 151Z(1)(d) Workers Compensation Act was not met. Reasonable avenues of inquiry were available to identify the other vehicle but were not pursued. Accordingly, the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']