New South Wales
Court of Appeal
CITATION: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 20 March 2008
JUDGMENT DATE:
24 June 2008JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 17 DECISION: Appeal dismissed with costs. CATCHWORDS: TORT – negligence – duty of care – worker’s services made available to third party by labour hire company – nature of any duty of care owed by third party to worker – contributory negligence – whether worker took reasonable care for own safety – need to take into account practical opportunities for choice available to worker in deciding whether there is contributory negligence - CONTRIBUTION – joint or several tortfeasors – third party and employer of injured worker – employer paid worker compensation pursuant to Workers Compensation Act 1987 – employer brought proceedings against third party seeking an indemnity under s 151Z(1)(d) Workers Compensation Act – operation of s 151Z Workers Compensation Act – whether worker “entitled to take proceedings” to recover damages from third party – when amount recoverable in such proceedings is nil – s 151Z(2) Workers Compensation Act – assessment of proportionate responsibilities of employer and third party – to take into account causal significance of breach of duty of each and their culpability concerning any such breach of duty – application of s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – effect of contributory negligence on quantum of damages recoverable under Act – s 9 Law Reform (Miscellaneous Provisions) Act 1965 - STATUTORY INTERPRETATION – whether amendments to Part 5, Division 3 of Workers Compensation Act introduced by Workers Compensation Legislation Further Amendment Act 2001 applicable to assessment of quantum of contribution towards damages – construction of transitional provisions in clause 9, Part 18C of Schedule 6 Workers Compensation Act – where proceedings seeking damages were not begun before commencement of 2001 amendments – where all payments of compensation were made prior to commencement of 2001 amendments – whether right to indemnity accrued before commencement of 2001 amendments – whether reasonably certain that Parliament intended that amendments would apply to that right - WORDS AND PHRASES – “in respect of the recovery of damages” - LIMITATION OF ACTIONS – manner in which Limitation Act 1969 applies to employer's right of recovery under s 151Z(1)(d) and 151Z(2)(e) Workers Compensation Act of compensation paid LEGISLATION CITED: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Law Reform (Miscellaneous Provisions) Act 1965
Limitation Act 1969
Motor Accidents Compensation Act 1999
Trade Practices Act 1974 (Cth)
Workers Compensation Act 1926
Workers Compensation Act 1987
Workers Compensation Legislation Further Amendment Act 2001CATEGORY: Principal judgment CASES CITED: Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Burke v Victorian Work Cover Authority [1998] VSCA 24; [1999] 1 VR 189
Clout Industrial Pty Ltd (in liq) v Baiada Poultry Pty Ltd [2004] NSWCA 89
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- AGLC
- J Blackwood & Son v Skilled Engineering [2008] NSWCA 142
- Case
- [2008] NSWCA 142
- Decision Date
CaseChat Overview and Summary
The dispute in *J Blackwood & Son v Skilled Engineering* concerned the extent of a third party's duty of care to a worker whose services were made available by a labour hire company, and the operation of indemnity provisions under the *Workers Compensation Act 1987* (NSW). The proceedings were heard in the Court of Appeal of New South Wales.
The primary legal issues before the court were: (1) whether Skilled Engineering, as the third party employer, owed a duty of care to the worker, J Blackwood & Son, and if so, the nature and scope of that duty; (2) whether the worker had been contributorily negligent; and (3) the application and interpretation of s 151Z of the *Workers Compensation Act 1987* concerning the employer's right to seek an indemnity from the third party for workers compensation payments made, particularly in light of amendments to the Act and the effect of contributory negligence on the quantum of damages.
The Court of Appeal considered the principles of negligence and the duty of care owed by a principal to a contractor's employee. It examined the practical opportunities available to the worker to take care for their own safety when assessing contributory negligence. Crucially, the court analysed the operation of s 151Z of the *Workers Compensation Act 1987*, including the impact of amendments introduced by the *Workers Compensation Legislation Further Amendment Act 2001* and the transitional provisions. The court determined whether the employer's right to indemnity had accrued before the commencement of the 2001 amendments and whether those amendments applied to the assessment of contribution. The court also considered the interplay between the employer's right of recovery under s 151Z and the *Limitation Act 1969* (NSW).
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The primary legal issues before the court were: (1) whether Skilled Engineering, as the third party employer, owed a duty of care to the worker, J Blackwood & Son, and if so, the nature and scope of that duty; (2) whether the worker had been contributorily negligent; and (3) the application and interpretation of s 151Z of the *Workers Compensation Act 1987* concerning the employer's right to seek an indemnity from the third party for workers compensation payments made, particularly in light of amendments to the Act and the effect of contributory negligence on the quantum of damages.
The Court of Appeal considered the principles of negligence and the duty of care owed by a principal to a contractor's employee. It examined the practical opportunities available to the worker to take care for their own safety when assessing contributory negligence. Crucially, the court analysed the operation of s 151Z of the *Workers Compensation Act 1987*, including the impact of amendments introduced by the *Workers Compensation Legislation Further Amendment Act 2001* and the transitional provisions. The court determined whether the employer's right to indemnity had accrued before the commencement of the 2001 amendments and whether those amendments applied to the assessment of contribution. The court also considered the interplay between the employer's right of recovery under s 151Z and the *Limitation Act 1969* (NSW).
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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