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Not a “director” but still culpable!

Summary

If a corporate employer fails to maintain a policy of workers compensation insurance and a worker sustains an injury during the course of employment, the corporate employer is liable to reimburse the Workers Compensation Nominal Insurer (‘WCNI’) for the medical expenses and compensation paid for or to the worker. In the event such amounts cannot be recovered from the corporate employer, section 145A of the Workers Compensation Act 1987 (NSW) (‘Act’) holds officers who were directors of the corporate employer at the time of injury, known as culpable directors, personally liable to reimburse WCNI.

On 30 May 2019 the Local Court of NSW handed down a judgment finding in favour of Insurance and Care NSW (‘icare’), who was acting as the agent of WCNI, under section 145A of the Act against the culpable directors, amid claims by one of the culpable directors that she was not validly appointed as a director but if she was, she had resigned as a director prior to the injury and in the event she is found to still have been a director at the time of injury, she has defences available to her under section 145A of the Act. That culpable director subsequently appealed the Local Court decision to the Supreme Court and on 27 February 2020, the Supreme Court dismissed the appeal with costs. TurksLegal represented icare in both proceedings.

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