Tabvena v Oag

[2002] NSWCA 61

CITATION:	Tabvena v Oag [2002] NSWCA 61 revised - 25/09/2002
FILE NUMBER(S):	CA 40430 of 2001
HEARING DATE(S):	01/03/02
JUDGMENT DATE:	23 August 2002
PARTIES :	Tabvena Pty Limited T/as Wallscapes v Grant Oag
JUDGMENT OF:	Meagher JA at 1; Powell JA at 12; Mathews AJA at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	CL 1398/99
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL:	A: Mr Lachlan Gyles R: Mr Peter Semmler QC with Mr Brad Slowgrove
SOLICITORS:	A: Hunt & Hunt R: Albert A Macri Partners
CATCHWORDS:	Section 151B(1)(b) Workers' Compensation Act 1987 - apportionment of contributory negligence - appeal allowed.
LEGISLATION CITED:	Workers' Compensation Act 1987 Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Zampetides v State of NSW (unreported, 23/08/00 Malpass M)
DECISION:	1. Appeal allowed; 2. Judgment below set aside; 3. In lieu thereof, verdict for the plaintiff in the amount of $208,268.48; 4. 4. The appellant to pay ¾ of the Respondent's costs of the Appeal, and the Respondent to pay ¼ of the Appellant's costs of the Appeal, with the Respondent to have a certificate from the Suitors Fund Act in respect of the latter.

CA 40430 of 2001
CL 1398 of 1999

MEAGHER JA
POWELL JA
MATHEWS AJA

Tuesday, 24 September 2002

TABVENA PTY LIMITED T/AS WALLSCAPES V GRANT OAG

Facts
The appellant, Tabvena Pty Limited, was found guilty of negligence for failing to provide suitable machinery, as well as a suitable work area for the respondent, Mr Oag, who was the operator of a machine called an “excavator”. On the day in question, while he was engaged in moving rubble from a stockpile and dumping it at another point, the machine fell over and injured him. The trial judge found that the respondent was contributorily negligent (40%), but awarded him $276 000 in damages.

On appeal the following issues arose: (i) whether the trial judge erred in his conclusion that liability should be apportioned as to 40% to the respondent, and 60% to the appellant; (ii) whether that the amount of $169 328.81 should have been deducted from the respondent’s verdict.

Held: Per Meagher JA (Powell JA & Matthews AJA agreeing)
(i) In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, the High Court of Australia delivered a judgment which made it quite clear that a finding of the proportions of contributory negligence (either by a trial judge or by a jury) attracts a special sacrosanctity; and in Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 the High Court was constrained to repeat that Podrebersek’s case meant what it said. The trial judge’s proportions could therefore not be disturbed.
(ii) In Zampetides v State of New South Wales (unreported, 23 August 2000), Malpass M), it was held that the provisions of the Workers’ Compensation Act 1987, are starkly unambiguous; the entire sum must be deducted from a plaintiff’s verdict.

Orders

1. Appeal allowed;

2. Judgment below set aside;

3. In lieu thereof, verdict for the plaintiff in the amount of $208,268.48.

4. The appellant to pay ¾ of the Respondent’s costs of the Appeal, and the Respondent to pay ¼ of the Appellant’s costs of the Appeal, with the Respondent to have a certificate under the Suitor’s Fund Act in respect of the latter.

CA 40430 of 2001
CL 1398 of 1999

MEAGHER JA
POWELL JA
MATHEWS AJA

Tuesday, 24 September 2002

TABVENA PTY LIMITED T/AS WALLSCAPES V GRANT OAG

Judgment

1 MEAGHER JA: This is an appeal by an unsuccessful defendant against an order by Christie DCJ that it pay to the plaintiff (the present respondent) the sum of $276,000 and costs. This verdict arose out of his Honour’s finding that the appellant (the respondent’s employer) was guilty of negligence, but that the respondent was contributorily negligent (as to 40%).

2 The accident which gave rise to the action arose during the construction of the M2 Motorway on 1 March 1996. The respondent plaintiff was the operator of a machine called an “excavator”. He was a skilled and experienced worker in that field. On the day in question, he was engaged in moving rubble from a stockpile and dumping it at another point. He had done that work many times before, and always without incident. But on this day the machine toppled over. His Honour found that the appellant was negligent.

3 His Honour found that the appellant had failed to provide more suitable machinery for the respondent to use for the dumping of material: a bobcat should have been used instead of an excavator; he also found that the employer had failed to provide a suitable work area. The plaintiff had sought to make a case that the machine toppled because of the uneven ground surface beneath it, but this contention was rejected by the trial judge.

4 It is also clear on the evidence that the immediate reason why the machine toppled over was that the plaintiff was driving it between the two points (the stockpile and the dumping point) with the arm fully extended, the bucket either full or over-full, and the arm slewing. That the machine should not have been operated in this way was acknowledged both by the appellant and the respondent.

5 It was primarily alleged by the appellant that the acts of negligence to which I have referred could not have been causative of the accident, that the accident was caused by the wrongful manner in which the respondent drove the machine. There is much to be said for this point of view, but it overlooks another finding of his Honour, who said:

“On the view of it an experienced operator who chose to slew the machine whilst he was working it and with a full bucket fully extended would be primarily responsible for this incident, but nevertheless, as I said earlier, he is entitled to some direction and some advice and some supervision from Mr Chrichton, the supervisor who was there, and on all the evidence he received none.”

6 (I might add that the “supervisor” to whom his Honour alludes, one Mr Chrichton, was not called to give evidence.)

7 Thus it is established that the appellant was negligent in not directing the respondent to desist from driving the machine negligently, and there is no problem of causality to worry about. No attack on a finding that the appellant was negligent, therefore, can be entertained.

8 Thus, his Honour came to the conclusion that the respondent’s action in knowingly driving the machine in a dangerous manner was directly causative of the accident, and the appellant’s behaviour in failing to supervise the respondent’s driving was also directly causative of the accident. In these circumstances, it is hardly surprising that his Honour concluded that ultimately liability should be apportioned as to 40% to the former and as to 60% to the latter. Indeed, if it were relevant (and it is not) those are the proportions which I would have found if it were my business to do so. But what is surprising is that the apportionment was attacked by both sides, the appellant submitting that the respondent’s portion should be higher, the respondent submitting that it should be lower. Neither submission should be upheld. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 the High Court of Australia delivered a judgment which made it quite clear that a finding of the proportions of contributory negligence (either by a trial judge or by a jury) attracts a special sacrosanctity; and in Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 the High Court was constrained to remind us that Podrebersek’s case meant what it said.

9 The next issue raised in the appeal concerned the calculation of the reduction which should have been made for worker’s compensation paid to the respondent. The amount involved was $169,328.81. The appellant submits that the whole of this amount should have been deducted from the plaintiff’s verdict. His Honour, however, held that the amount of the deduction should be limited to 40% of that sum, in view of his findings on contributory negligence. There is very little authority on this issue. The history of continued legislative change in both the Workers Compensation Act 1987 and the Law Reform (Miscellaneous Provisions) Act 1965 dealing with the problem has been set out in an appendix to this judgment. At the date of trial, the matter was governed by s151B(1)(b) of the Workers Compensation Act 1987, which provides:

“Effect of recovery of damages from employer on payment of compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act:
(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.”

In Unver v Liftronic in this Court (unreported, 1 December 1999) it was assumed by everybody that the payment was to be apportioned, but the matter was not argued. In Zampetides v State of New South Wales (unreported, 23 August 2000, Malpass M) the only reported case, apparently, in which the matter was argued, a result favourable to that sought by the appellant was obtained. With great respect, I think the Master was correct. Whatever injustices may flow from that provision, the provisions of the Act are starkly unambiguous: the entire sum must be deducted from a plaintiff’s verdict.

10 Finally, the respondent alleged that no deduction for contributory negligence should be made, because the plaintiff was (without knowing it) suing in contract as well as in tort, and the apportionment provisions of the Law Reform (Miscellaneous Provision) Act do not apply to actions in contract. But the short answer to this contention is that neither in the pleadings nor the addresses nor in the judgment is any suggestion made that the respondent was suing in contract, and the parties must be held to the arena in which they chose to conduct this contest; nor could the point be of much relevance if the Law Reform (Miscellaneous Provision) Act was not relevant.

11 In my view, the following orders should be made:

1. Appeal allowed;
2. Judgment below set aside;
3. In lieu thereof, verdict for the plaintiff in the amount of $208, 268.48
4. The appellant pay ¾ of the Respondent’s costs of the Appeal, and the Respondent pay ¼ of the Appellant’s costs of the Appeal, with the Respondent to have a certificate under the Suitor’s Fund Act in respect of the latter.

12 POWELL JA: I agree with Meagher JA.

13 MATHEWS AJA: I agree with Meagher JA.

APPENDIX

1. Workers’ Compensation Act 1926

(a) When the Act was first passed, it contained in Part VIII – Remedies at common law, the following relevant provisions:

“63(1) Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible.

(2) In such case the worker may, at his option, proceed under this Act or independently of this Act, but he shall not be entitled to compensation under this Act, if he has obtained a Judgment against his employer independently of this Act.

64. Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation; and

(b) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions relating thereto shall, in default of agreement, be settled by action, or, with the consent of the parties, by the commission.”

(b) In 1938, s.63 was amended by the Industrial Arbitration and Workers’ Compensation (Amendment) Act, by adding (inter alia) sub-paragraph (5) which read as follows:

“(5) Where judgment is obtained against an employer independently of this Act in respect of the injury, any payments by way of compensation under this Act in respect of the injury, whether made before or after the date upon which the assent of his Majesty to the Industrial Arbitration and Workers Compensation (Amendment) Act, 1938, is signified, shall be, to the extent of such payments, a satisfaction of the judgment.”

(c) In 1942, s.64 was amended by the Workers’ Compensation Act and Workmen’s Compensation (Broken Hill) Act (Amendment) Act as follows:

(i) by omitting from paragraph (a) the word “recover” where secondly occurring and by inserting in lieu thereof the word “retain”;

(ii) by omitting from the same paragraph the word “and” after the words “both damages and compensation” and by inserting in lieu thereof the following words:


“If the worker recovers firstly compensation and secondly such damages he shall be liable to repay to his employer out of such damages the amount of compensation which the employer has paid in respect of the worker’s injury under this Act, and the worker shall not be entitled to any further compensation.

If the worker firstly recovers such damages, he shall not be entitled to recover compensation under this Act.”

(iii) by omitting from paragraph (b) all the words after the word “aforesaid” and by inserting in lieu thereof the following new paragraphs:


“(c) if the worker subsequently obtains judgment for damages against the person who has paid under such indemnity, such payment under the indemnity shall be, to the extent of the amount of such payment, a satisfaction of the judgment for damages;

(d) all questions relating to matters arising under this section shall, in default of agreement, be settled by action, or, with the consent of the parties, by the Commission.”

(d) Although the Workers’ Compensation Act 1926 was not, in terms, amended by the Law Reform (Miscellaneous Provisions) Act 1965, the following might be noted:

(i) Section 1(2) of that Act provided:


“(2) The Acts as amended by subsequent Acts and by this Act specified in the first and second columns of the Schedule to this Act may be cited as respectively specified in the third column of that Schedule.”

the Workers’ Compensation Act 1926 being one of the Act specified in the Schedule and the citation provided for in that Schedule was “Workers Compensation Act, 1926-1965”.

(ii) The provisos to s.10(1) of the Law Reform (Miscellaneous Provisions) Act – the section providing for the apportionment of liability in case of contributory negligence – included the following:


“(c) where any payments made to the claimant by way of compensation take effect pursuant to s.63(5) of the Workers Compensation Act 1926-1965, as a satisfaction of the judgment obtained by him against his employer, such payments shall be reduced to the same extent as the damages recovered by him and shall be a satisfaction of the judgment to such reduced extent only;

(d) where the claimant is liable to repay compensation to his employer pursuant to s.64(a) of the Workers Compensation Act 1926-1965, the amount of compensation so repayable shall be reduced to the same extent as the damages recoverable by him.”

(a)(i) When the Act was first passed, ss.149-150 which were in Part 5, Common Law Remedies, provided (inter alia) as follows:


“149(1) A worker is not entitled to recover damages other than under this Act:

(a) from the worker’s employer;
(b) from any person who is vicariously liable for the acts or omissions of that employer; or
(c) from any person for whose acts or omissions that employer is vicariously liable,

in respect of any injury to the worker for which compensation is payable under this Act by that employer.

………



150(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation;

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act and the worker is not entitled to any further compensation;

(c) if the worker firstly recovers those damages, the worker is not entitled to recover compensation under this Act;

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay those damages;


………”

(ii) Part 14 – Provisions relating to common law remedies - of Schedule 6 – Savings transitional and other provisions, provided (inter alia):


“1(1) Sections 149 and 150 do not apply to a cause of action in respect of:

(a) an injury received by a worker before the commencement of those sections;

………


(2) In the case of any such cause of action, the provisions of ss. 63, 64 … of the former Act continue apply.


………”

(b) the Workers Compensation (Benefits) Amendment Act 1989 omitted the previous Part 5 and inserted a new Part 5 which provided (inter alia) as follows:


“150 A reference in this Part to a worker’s employer includes a reference to:

(a) a person who is vicariously liable for the acts of the employer; and

(b) a person for whose acts the employer is vicariously liable.

151 This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act except to the extent that this Act otherwise expressly provides.

………



151B(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act:

(a) the person then ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and

(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded as a lump sum) and is to be paid to the person who paid the compensation.

………



151N(1) The common law and enacted law as to contributory negligence applies to awards of damages, except as provided by this section.

(3) In an action for the award of damages founded on a breach of statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages.

(4) Part 3 of the Law Reform (Miscellaneous) Provisions Act 1965 applies to an action for damages referred to in subsection (3).

………



151U(1) This Part applies to a cause of action in respect of:

(a) an injury received by a worker at or after 4.00 p.m. on 30 June 1987; or

………


(2) This part has effect as if ss 149 and 150, as originally enacted, had never been enacted.

………



151Z(1) If the injury for which compensation is payable under this Act was caused under the circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation;

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation; and

(c) if the worker firstly recovers those damages, the worker is not entitled to recover compensation under this Act;

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages.

………

(c) Section 151B(1)(b) was amended by the Workers Compensation Legislation Amendment Act 1995 by inserting after the word “awarded” the words “or otherwise paid”.

3. Law Reform (Miscellaneous Provisions) Act 1965

(a)(i) When first passed, s.10 provided (inter alia) as follows:

“10(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that:

………



(c) where any payments made to the claimant by way of compensation take effect pursuant to s.63(5) of the Workers’ Compensation Act 1926-1965, as a satisfaction of the judgment obtained by him against his employer, such payments shall be reduced to the same extent as the damages recoverable by him and shall be a satisfaction of the judgment to such reduced extent only;

(d) where the claimant is liable to repay compensation to his employer pursuant to s.64(a) of the Workers’ Compensation Act, 1926-1965, the amount of compensation so repayable shall be reduced to the same extent as the damages recoverable by him;


………”

(ii) As I have earlier (see 1(d)(i) noted, although the Act did not in express terms, amend the Workers’ Compensation Act 1926, the provisions of s.1(2) and of the Schedule meant that the Workers Compensation Act 1926 was thereafter to be cited as the Workers Compensation Act 1926-1965.

(b) Section 4(e) of the Administration of Justice Act 1968 amended s.10(1) of the Act by omitting the words, figures and symbols “section 64(a)” wherever occurring and by inserting in lieu thereof the words “paragraph (a) of subsection 1 of section 64”.

(c) The effect of s.7 and Schedule 2 of the Supreme Court Act 1970 was to amend s.10(1)(c), firstly, by omitting the words “as a satisfaction of the judgment obtained” and substituting the words “to any extent as a defence to the proceedings” and, secondly, by omitting the words “be a satisfaction of the judgment” and substituting the words “be a defence”.

(d) The Miscellaneous Acts (Workers Compensation Amendment Act 1987) amended s.10(1) of the Act, firstly, by deleting from paragraph (c) the symbol and figures “- 1965” and, secondly, by deleting from paragraph (d) the symbol and figures “ – 1965” and substituting “or pursuant to section 150 of the Workers Compensation Act 1987”.

(e) The Workers Compensation Legislation Amendment Act 1995 amended s.10(1) by omitting the word and figure “section 150” wherever occurring and inserting in lieu thereof “section 151Z”, the explanatory note to the amendment being:

“The proposed amendment to section 10 updates a cross-reference to a provision of the Workers Compensation Act 1987 dealing with recovery of common law damages against both the employer and any other person liable to the worker.”

(f) The Law Reform (Miscellaneous Provisions) Amendment Act 2000, the short title of which was:

“An Act to amend the Law Reform (Miscellaneous Provisions) Act 1965 to make provision for the application of the common law doctrine of contributory negligence to contractual liability in certain circumstances; and for other purposes.”

amended the Act in the following way:

(i) by omitting Part 3 which included s.10 and by substituting a new Part which contained the following (inter alia) provisions:

“8. In this Part:

………



wrong means an act or omission that:

(a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or

(b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.

9(1) If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:

(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

………



10(1) If any payments made to the claimant by way of compensation take effect under section 63(5) of the Workers’ Compensation Act 1926 to any extent as a defence to the proceedings by the claimant against his or her employer, those payments are to be reduced to the same extent as the damages recoverable by the claimant are reduced under section 9 and are a defence to the reduced extent only.

(2) If the claimant is liable to repay compensation to his or her employer under section 64(1)(a) of the Workers’ Compensation Act 1926 or under section 151Z of the Workers Compensation Act 1987, the amount of compensation so repayable is to be reduced to the same extent as the damages recoverable by the claimant are reduced under section 9.

………”
(ii) by omitting the Schedule and substituting (inter alia) Schedule 1 – Savings and transitional provisions which included the following (inter alia) provisions:


“3(1) Subject to subclause (2) and clause 4, the amendments to this Act made by the amending Act are taken to apply to wrongs that occurred before the commencement of those amendment as if those amendments had been in force when the wrong occurred.

(2) This Act, as in force immediately before the commencement of the amendments made by the amending Act, continues to applies to a wrong about which:

(a) a court has, before that commencement, given judgment or made a decision (including a judgment or decision about liability only) whether or not an appeal has been made against that judgment or decision.

………


4(1) This clause applies to proceedings before a court concerning a wrong that:

(a) were instituted before the commencement of the amending Act, and

(b) having not been finally determined by the court before that commencement.

(2) Proceedings to which this clause applies are to be determined as if the amending Act had not been enacted.

………”

4. Summary

(a) After the coming into effect of the provisions of the Workers Compensation Act 1987, the provisions of ss.63 and 64 of the Workers Compensation Act 1926 had no application except in relation to injuries sustained before 4.00 p.m. on 30 June 1987.

(b) In the period between the coming into operation of the provisions of the Workers Compensation Act 1987 and the coming into operation of the provisions of the Workers Compensation (Benefits) Amendment Act 1989:

(i) a worker who had sustained injury during that period had no right to recover damages from his employer;

(ii) a worker who had sustained injury during that period had a right to recover damages against a third party;

(iii) the provisions of s.150 of the Act provided that, if the worker had earlier received compensation in respect of that injury, he was liable to repay that compensation upon the receipt from the third party of damages;

(iv) if those damages had been reduced by reason of his contributory negligence, s.10(1)(b) of the Miscellaneous Provisions Act operated to reduce the amount of the repayment required.

(c) In the period between the coming into operation of the provisions of the Workers Compensation (Benefits) Amendment Act 1989 and the coming into operation of the provisions of the Workers Compensation Legislation Amendment Act 1995;

(i) an injured worker could recover from his employer damages even though the injury may have been sustained between 30 June 1987 and the coming into operation of the provisions of the Workers Compensation (Benefits) Amendment Act 1989;

(ii) if he had earlier recovered compensation, the amount of that compensation which had already been paid was to be deducted from the damages;

(iii) because s.63(5) had no operation and because s.10(1)(c) of the Miscellaneous Provisions Act had not been amended to include a reference for the provisions of s.151B of the Workers Compensation Act 1987, s.10(1)(c) of the Miscellaneous Provision Act did not operate to reduce the amount of the deduction even though the damages may have been reduced by reason of the workers contributory negligence;

(iv) a worker who had been injured as the result of the negligence of a third party could recover damages from that third party;

(v) if he had earlier recovered compensation, he was liable to repay the amount of that compensation out of the damages;

(vi) but as the provisions of s.10(1)(d) of the Miscellaneous Provisions Act had not been amended so as to include a reference to s.151Z of the Workers Compensation Act 1987, then s.10(1)(d) of the Miscellaneous Provisions Act did not operate so as to reduce the amount which he was liable to repay.

(d) After the coming into operation of the Workers Compensation Legislation Amendment Act 1995:

(i) the position of an injured worker who recovered firstly compensation and later damages from his employer remained as before;

(ii) in an appropriate case, the provisions of s.10(1)(d) of the Miscellaneous Provisions Act operated to reduce the amount which a worker was required to repay out of the damages which he received from the negligent third party.

(e) Notwithstanding the coming into operation of the provisions of the Law Reform (Miscellaneous Provisions) Amendment Act 2000:

(i) the absence from s.10(1) of any reference to the provisions of s.151B of the Workers Compensation Act 1987 means that that provision does not operate to reduce any amount repayable by an injured worker pursuant to the provisions of s.151B of the Workers Compensation Act 1987;

(ii) in an appropriate case, s.10(2) operates to reduce the amount which an injured worker is liable to repay out of damages which he may recover from a negligent third party.

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