Millsom v Pioneer Construction Materials Pty Ltd

Millsom (the applicant) sought leave to appeal against a decision of the Full Federal Court which had dismissed his appeal from a judgment of a single judge of the Federal Court. The dispute concerned the applicant's claim for damages for personal injury allegedly suffered as a result of exposure to silica dust during his employment with Pioneer Construction Materials Pty Ltd (the respondent). The applicant alleged that the respondent had breached its duty of care by failing to provide a safe working environment, leading to the development of silicosis.

The primary legal issue before the High Court was whether the Full Federal Court had erred in upholding the primary judge's finding that the applicant's claim was barred by the operation of section 139(1) of the *Workers Compensation Act 1987* (NSW) (the Act). This section provides that a worker who has received or is entitled to receive compensation under the Act is not entitled to recover damages from their employer for an injury for which the compensation is payable. The applicant contended that his claim fell within an exception to this bar, specifically that the injury was not one for which compensation was payable under the Act.

Gleeson CJ and Gummow J, in dismissing the application for leave to appeal, reasoned that the applicant's claim for damages was for the very injury for which he had received, or was entitled to receive, workers' compensation under the Act. Their Honours noted that the scheme of the Act was to provide a statutory remedy for injuries sustained in the course of employment, and that section 139(1) was intended to prevent double recovery. The applicant's argument that his injury was not one for which compensation was payable was found to be without merit, as the evidence indicated that his condition was a recognised industrial disease for which compensation was available.

Consequently, the application for leave to appeal was dismissed.