In this case, the worker was a pharmacy assistant who was subjected to attempted poisonings by a co-worker on 23 separate occasions. The police eventually became involved and the co-worker was convicted of various criminal acts and was incarcerated.
The worker lodged a workers compensation claim as the attempted poisonings occurred at work. Liability was accepted by the relevant insurer and payments were made to, for and on behalf of the worker.
Hall & Wilcox used its recovery identification application, RecoverEase to identify this matter as having recovery potential in line with the indemnity provisions set out under section 151Z of the Workers Compensation Act 1987 (NSW) (Act) and were instructed to pursue the co-worker for the payments made to for and on behalf of the worker pursuant to the indemnity provisions conferred by section 151Z.
In order to succeed in a claim for recovery pursuant to section 151Z of the Act, it is necessary to establish that a third party would be liable to pay damages to the worker in respect of the same injury for which compensation was paid. Therefore, it will be necessary to establish that a third party owed and breached a duty of care to the worker, causing the worker’s injuries.
Complicating this matter was the fact that an employer is vicariously liable for the acts of its employees in line with section 3 of the Employees Liability Act 1991 (NSW) (ELA), except in circumstances where s5 of the ELA apply, that is, where the employee is acting outside the course of his employment or was engaging in serious and wilful misconduct.
Hall & Wilcox issued demands to the co-worker on the basis that his actions constituted ‘serious and wilful misconduct’ in line with s5 of the ELA. Without the veil of the vicarious liability obligations of the employer to protect him, Hall & Wilcox were able to pursue the co-worker as we would any other independent third party and after making our submissions to the co-worker’s legal representatives we successfully secured full recovery of payments made on the claim for the relevant insurer.
This matter is a prime example of how using RecoverEase can assist your company to identify and target even the most inconspicuous claims for recovery under section 151Z and how important it is to look ‘outside of the box’ when considering whether an indemnity is available pursuant to section 151Z.