Workers Compensation Nominal Insurer v Sako - [2025] NSWCA 12

116 NSWLR 422

Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12 Court of Appeal Stern, McHUGH JJA and Price AJA 21November 2024, 13 February 2025 WORKERS COMPENSATION — Nominal Insurer — Uninsured liabilities — Whether worker can make claim against Nominal Insurer for work injury damages where injury is silicosis and employer is uninsured — “Injury” — “Work injury damages” — Workers Compensation Act 1987 (NSW) s 2A(2), s 3(1AA), s 4, s 140, s 155 — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4 s 250 . DUST DISEASES — Dust Diseases Tribunal — Distinction between legislative treatment of dust diseases and workers compensation .

A worker claimed that he contracted silicosis, a dust disease within the meaning of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (1942 Dust Act), in the course of employment for an uninsured employer. The worker sought to make a damages claim directly against the Workers Compensation Nominal Insurer through the uninsured liabilities scheme. The Dust Diseases Tribunal permitted that claim to be pleaded. The Nominal Insurer appealed, on the ground that a claim for work injury damages could not be made in respect of a dust disease.

It was common ground that the parties’ rights were to be determined in accordance with Pt 4 Div 6 of the Workers Compensation Act 1987 (NSW) (1987 Act), which addressed uninsured liabilities and contained s 140(1)(a), which provided:

“(1)
A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if —
- (a)
  the employer is uninsured …”

Section 4 of the 1987 Act provided that “injury” means, by par (a) of the definition, “personal injury arising out of or in the course of employment” but, by par (c), “does not include … a dust disease, as defined by [the 1942 Dust Act], or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined”.

Section 155(1) of the 1987 Act provided that an employer is required to obtain a policy of insurance for the full amount of the employer’s liability under the 1987 Act, “for any injury to any such worker”. Section 155(1A) provided that “in subsection (1), injury includes a dust disease as defined in the Workers’ Compensation (Dust Diseases) Act 1942”.

Section 250(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) relevantly provided that “work injury damages” means: “… damages recoverable from a worker’s employer in respect of —

(a)
an injury to the worker caused by the negligence or other tort of the employer …

whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.”

Section 4(1) of the 1998 Act provided that the term “injury” does not include a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCA 12
Decision Date: 13/02/2025

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer (the Nominal Insurer) appealed to the Court of Appeal of New South Wales against a decision of the Compensation Court of New South Wales. The appeal concerned a claim for workers compensation made by Mr Sako, who alleged he had suffered a psychological injury arising out of or in the course of his employment. The primary dispute between the parties was whether Mr Sako's injury was caused by a "specified injury" as defined in the *Workers Compensation Act 1987* (NSW) (the Act), which would have entitled him to certain statutory benefits.

The central legal issue before the Court of Appeal was the proper interpretation of the term "specified injury" within the context of the Act, particularly as it applied to psychological injuries. Specifically, the court had to determine whether Mr Sako's condition, described as a "work-related psychological injury," fell within the statutory definition of a "specified injury" and, if so, whether the employer's conduct that allegedly caused the injury constituted a "specified incident" or a series of incidents.

The Court of Appeal analysed the legislative intent behind the provisions relating to specified injuries, noting that the Act distinguishes between different types of injuries and the compensation available for them. The court considered the evidence presented regarding the nature of Mr Sako's psychological condition and the circumstances of his employment. It applied established principles of statutory interpretation to determine whether the facts of the case satisfied the criteria for a specified injury and a specified incident under the Act. The court found that the injury sustained by Mr Sako did not meet the definition of a specified injury as contemplated by the relevant provisions of the Act.

Consequently, the Court of Appeal allowed the Nominal Insurer's appeal and set aside the decision of the Compensation Court. The court ordered that Mr Sako's claim for benefits related to a specified injury be dismissed.

Orders