Reported Decision: 67 NSWLR 187
Court of Appeal
CITATION: KIMBERLY-CLARK AUSTRALIA PTY LTD v THOMPSON [2006] NSWCA 264
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 28 August 2006
JUDGMENT DATE:
21 September 2006JUDGMENT OF: Ipp JA at 1; Bryson JA at 2; Basten JA at 9 DECISION: (1) Application for leave to appeal granted; (2) Appeal dismissed with costs. CATCHWORDS: WORKERS COMPENSATION – Workplace Injury Management and Workers Compensation Act 1988 (NSW), ss 250 and Chapter 7 – meaning of “work injury damages” – extended definition of “worker” – whether nervous shock suffered by a spouse resulting from the death of her husband who died in the course of employment is “work injury damages” – whether compliance with Chapter 7 required LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s4
Workplace Injury Management Workers Compensation Act 1998 (NSW), ss 3, 4, 250, 251, 259, 260, 280A, 281, 311, 312, 313, 315, 318A
Workers Compensation Act 1926 (NSW), s 6
Workers Compensation Act 1987 (NSW), ss, 2A, 3, 7, 8, 151, 151E, 151F, 151G, 151P
Workers Compensation Act 1916-1966 (Qld), s 3, 8, 9A
Workers Compensation Commission Rules 2003 (NSW), r 80
Workmen’s Compensation Act 1910 (NSW), s 2CASES CITED: Attileh v State Rail Authority (2005) 62 NSWLR 439
Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214
Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Kendrick v Bluescope Steel (AIS) Pty Ltd (27 April 2006)
McDowell v Baker (1979) 144 CLR 413
Manufacturers’ Mutual Insurance Ltd v G.E. Hooper (1987) 4 ANZ Insurance Cases 60-768
Rheem Australia Ltd v Manufacturers’ Mutual Insurance Ltd [1984] 2 NSWLR 370
State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412
Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Technical Products Pty Ltd v State Government Insurance Office (Qld) (1988) 167 CLR 45
The Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642PARTIES: Kimberly-Clark Australia Pty Ltd - Appellant
Rosalina Bastolini Thompson - RespondentFILE NUMBER(S): CA 40860/05 COUNSEL: Mr L. King SC - Appellant
Mr S.G. Campbell SC/Mr D. Toomey - RespondentSOLICITORS: McLean Lawyers, Sydney - Appellant
McClellands Lawyers, Sydney - RespondentLOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20183/04 LOWER COURT JUDICIAL OFFICER: Patten AJ LOWER COURT DATE OF DECISION: 7 October 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009
CA 40860/05
SC 20183/0421 September 2006IPP JA
BRYSON JA
BASTEN JA
KIMBERLY-CLARK AUSTRALIA PTY LTD v THOMPSON
The respondent, Ms Thompson, is the widow of the late Mark Thompson who died of injuries received in the course of his employment with the appellant, Kimberly-Clark Australia Pty Ltd (“Kimberly-Clark”). The respondent brought proceedings on her own behalf for nervous shock…
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Details
- Case
- [2006] NSWCA 264
- Decision Date
CaseChat Overview and Summary
Kimberly-Clark Australia Pty Ltd (the appellant) sought leave to appeal a decision of the District Court of New South Wales concerning a claim for damages. The respondent, Ms. Thompson, was the widow of a worker employed by the appellant who had died in the course of his employment. Ms. Thompson claimed damages for nervous shock suffered as a result of her husband's death.
The central legal issues before the Court of Appeal were whether the damages claimed by Ms. Thompson constituted "work injury damages" as defined by the *Workplace Injury Management and Workers Compensation Act 1988* (NSW), and consequently, whether compliance with the procedural requirements of Chapter 7 of that Act was necessary for her claim to proceed. Specifically, the court had to determine if the extended definition of "worker" under the Act encompassed a spouse suffering nervous shock due to a worker's death in the course of employment, and if such a claim fell within the ambit of "work injury damages".
The Court of Appeal, comprising Ipp JA, Bryson JA, and Basten JA, considered the relevant provisions of the *Workplace Injury Management and Workers Compensation Act 1988* (NSW). The court reasoned that the definition of "work injury damages" in section 151Z(1) of the Act referred to damages for a "work injury", which was defined to include injury arising out of or in the course of employment. The court found that the nervous shock suffered by Ms. Thompson was an injury that arose out of or in the course of her husband's employment. Therefore, her claim for damages for nervous shock was a claim for "work injury damages" and was subject to the requirements of Chapter 7 of the Act.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering the appellant to pay the respondent's costs.
The central legal issues before the Court of Appeal were whether the damages claimed by Ms. Thompson constituted "work injury damages" as defined by the *Workplace Injury Management and Workers Compensation Act 1988* (NSW), and consequently, whether compliance with the procedural requirements of Chapter 7 of that Act was necessary for her claim to proceed. Specifically, the court had to determine if the extended definition of "worker" under the Act encompassed a spouse suffering nervous shock due to a worker's death in the course of employment, and if such a claim fell within the ambit of "work injury damages".
The Court of Appeal, comprising Ipp JA, Bryson JA, and Basten JA, considered the relevant provisions of the *Workplace Injury Management and Workers Compensation Act 1988* (NSW). The court reasoned that the definition of "work injury damages" in section 151Z(1) of the Act referred to damages for a "work injury", which was defined to include injury arising out of or in the course of employment. The court found that the nervous shock suffered by Ms. Thompson was an injury that arose out of or in the course of her husband's employment. Therefore, her claim for damages for nervous shock was a claim for "work injury damages" and was subject to the requirements of Chapter 7 of the Act.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering the appellant to pay the respondent's costs.
Orders
Orders of the court
(1) Application for leave to appeal granted; (2) 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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