The indemnity formula under s.138(3) of the Accident Compensation Act 1985 (Vic) applicable to a third party tortfeasor's obligation is that in force at the date of the worker's injury, not the formula in force when each compensation payment is made. Factor C (amounts paid by the tortfeasor to the worker) is to be valued as at the date of trial, so that settlement payments made after compensation payments but before trial are taken into account in calculating the indemnity. The question whether determination of Factor C at trial gives rise to issue estoppel in respect of subsequent indemnity claims was left open.
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