Gardiner v Laing O'Rourke Australia Construction Pty Ltd

The appeal in *Gardiner v Laing O'Rourke Australia Construction Pty Ltd* concerned the construction of a deed of release and its effect on a claim for workers' compensation. The appellant, Ms Gardiner, had entered into a deed of release with the respondent, Laing O'Rourke Australia Construction Pty Ltd, to settle complaints of discriminatory conduct. Ms Gardiner subsequently sought to pursue a claim for workers' compensation. The central dispute was whether the deed of release discharged Ms Gardiner's liabilities arising out of workers' compensation legislation, notwithstanding an express preservation of her entitlement to sue under that legislation.

The primary legal issues before the Court of Appeal were: (1) whether the deed of release, by its express terms, discharged the respondent from liabilities arising under the *Workers Compensation Act 1987* (NSW); and (2) whether a payment made to settle a complaint under the *Anti-Discrimination Act 1977* (NSW) constituted "damages" for the purposes of section 149 of the *Workers Compensation Act 1987* (NSW), and if so, how sections 151A and 280B of that Act operated in relation to such a payment.

The Court of Appeal found that the deed of release did not operate to discharge the respondent from its liabilities under the *Workers Compensation Act 1987* (NSW). The Court reasoned that the express preservation of Ms Gardiner's entitlement to sue under the workers' compensation legislation within the deed was a critical factor. This preservation indicated an intention that the deed's release provisions were not intended to encompass or extinguish rights under that specific legislation. Furthermore, the Court determined that the payment made under the *Anti-Discrimination Act 1977* (NSW) was not "damages" in the context of section 149 of the *Workers Compensation Act 1987* (NSW), and therefore did not trigger the exclusions contemplated by that section.

The Court of Appeal allowed the appeal, setting aside the orders of the President of the Workers Compensation Commission and the Arbitrator. The matter was remitted to the Workers Compensation Commission for determination of the remaining issues in the dispute, and the respondent was ordered to pay the appellant's costs of the appeal.