Elhawat v Workers Compensation Nominal Insurer

The applicant, Mr Elhawat, appealed to the Court of Appeal of New South Wales against a decision of the District Court that had allowed the respondent, the Workers Compensation Nominal Insurer, to file a defence raising contributory negligence in a claim for work injury damages. The central dispute concerned the interpretation of section 318(1)(c) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which prohibits an employer from filing a defence that wholly or partly disputes liability if they have failed to serve a pre-filing defence.

The legal issues before the Court of Appeal were whether the defence of contributory negligence constituted "wholly or partly disputing liability" for the purposes of section 318(1)(c), and whether contributory negligence was an aspect of liability or damages. The court also considered the relevance of a statutory note within section 318A(2) to the interpretation of section 318(1)(c).

The Court of Appeal held that contributory negligence is an aspect of liability, not merely damages. Therefore, by seeking to raise contributory negligence, the respondent was disputing liability, and as it had failed to serve a pre-filing defence, it was barred by section 318(1)(c) from doing so. The court further determined that the statutory note in section 318A(2), while potentially useful as extrinsic material, could not displace the plain meaning of section 318(1)(c). Consequently, the appeal was allowed, the District Court's orders were set aside, the defence was struck out, and judgment was entered for the plaintiff with damages to be assessed.