Coco v Meldean Pty Ltd [1993] NSWCC 19; (1993) 9 NSWCCR 399 (18 August 1993)

[1993] NSWCC 19; (1993) 9 NSWCCR 399 (13135/92)

Compensation Court of New South Wales: Geraghty J

COCO v. MELDEAN PTY LTD

18 August 1993

Alternative rights and election between different remedies - Alternative rights against third parties - Recover damages from stranger - Decision pending - Liability admitted - Verdict inevitable - Right to recover compensation - Workers Compensation Act 1987, section 151Z(1)(c)

W.B. Nicholson, for the applicant

W.J. Roche, for the respondent

Ex tempore

GERAGHTY J: Mr Roche, of counsel for the respondent, informed the Court today that proceedings under the Motor Accidents Act 1988 were heard by an arbitrator on 10 August 1993, but have not yet been determined. The matter has been heard: a decision is pending. During the hearing liability was admitted by the defendant. He submitted a verdict is inevitable, without question a verdict for medical expenses even if the threshold is not reached for general damages.

Mr Roche made an application that the application for determination of Anthony Coco, be struck out, at least because it is not appropriate for this Court to be hearing a matter that has already been heard. He also applied, alternatively, for an adjournment pending the decision of the arbitrator. He submitted that the worker's proceeding in both jurisdictions can only be cost collecting by the solicitor. That allegation has been often made in Compensation Court where proceedings, both in this Court and in the District or Supreme Court have been filed together. While I have some sympathy with such a submission and agree it has some force, section 151Z allows the worker, nay, envisages that the worker would proceed in two jurisdictions, one to recover damages, the other to recover compensation. The section deals with the precise situation where the worker has elected to proceed in those two jurisdictions.

Section 151Z(1)(b) provides for the situation where compensation is firstly recovered and then damages; (c) deals with the situation where the worker first recovers damages. The question remains what is the meaning of the words "recovers damages". I do not need to decide the question now. Whether damages are recovered when a decision or a judgment has been entered, or whether it is when the worker himself has been paid that money, I do not need to decide because in this particular situation (however close it might be to a decision being handed down and the 28 days passing while either party considers whether to seek a re-hearing or not) it is beyond doubt that no damages have yet been recovered. Since the legislation envisages that until recovery of damages occurs, the worker has a right to proceed.

I propose to hear the matter today. I reject the application made by Mr Roche.

Solicitors for the applicant: Paul A. Curtis & Co

Solicitors for the respondent: Grahame Goldberg Partners