Hickson v Goodman Fielder Ltd

[2009] HCA 11

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

GLENN ANDREW JOSEPH HICKSON  APPELLANT

AND

GOODMAN FIELDER LIMITED  RESPONDENT

Hickson v Goodman Fielder Limited [2009] HCA 11
12 March 2009
S470/2008

ORDER

1.        Appeal allowed with costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 24 April 2008.

3.In lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

A S Bell SC with D J Hooke for the appellant (instructed by Beilby Poulden Costello)

J T Gleeson SC with P Kulevski for the respondent (instructed by Eakin McCaffrey Cox Solicitors)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hickson v Goodman Fielder Limited

Workers' compensation – Contributory negligence – Worker recovers workers' compensation as a result of injury – Worker brings damages claim against third party tortfeasor – Damages claim settled – Employer seeks recovery of workers' compensation pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(b) – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates to reduce amount of repayment on account of worker's contributory negligence where damages claim settled.

Statutes – Interpretation – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates on damages recovered by way of settlement – Whether reduction of repayment proportionate or by specific amount.

Words and phrases – "damages recoverable", "to the same extent".

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 9, 10.
Workers Compensation Act 1987 (NSW), s 151Z(1), (5).

1. GUMMOW J.   The appeal should be allowed and consequential orders made as proposed by Bell J.  I agree with her Honour's reasons.

2. HAYNE J.   I agree with Bell J.

3. HEYDON J.   I agree with Bell J.

4. KIEFEL J.   I agree with the orders proposed by Bell J for the reasons given by her Honour.

5. BELL J. On 12 March 2003, the appellant ("Mr Hickson") suffered serious injury as the result of a collision between his pushbike and a motor vehicle driven by Mr Ala. The accident occurred while Mr Hickson was on a journey to which s 10 of the Workers Compensation Act 1987 (NSW) ("the Compensation Act") applies. Accordingly, his injury for the purposes of the Compensation Act is taken to have occurred in the course of his employment with the respondent ("Goodman Fielder"). Goodman Fielder made compensation payments to Mr Hickson. Mr Hickson also had rights in tort against Mr Ala.

6. Mr Hickson sued Mr Ala in tort in the District Court of New South Wales ("the tortfeasor action").  Goodman Fielder was not a party to that action.  Mr Ala filed Notice of Grounds of Defence containing extensive particulars of Mr Hickson's alleged contributory negligence.  It was common ground in the later litigation between Goodman Fielder and Mr Hickson that contributory negligence had been a live issue in the tortfeasor…