WorkPac Pty Ltd v Thearle

Case [2016] NSWCA 303


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: WorkPac Pty Ltd v Thearle [2016] NSWCA 303
Hearing dates:4 October 2016
Date of orders: 04 November 2016
Decision date: 04 November 2016
Before: McColl JA at [1], Ward JA at [98], Adamson J at [99]
Decision:

(1)   Grant leave to appeal.

 

(2)   Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days.

 

(3)   Allow the appeal.

 

(4)   Set aside the orders made by McLoughlin DCJ on 4 May 2016 in the District Court.

 

(5) Order that pursuant to UCPR 13.4, Ms Thearle’s proceedings against WorkPac be dismissed with costs.

 (6)   Ms Thearle to pay WorkPac’s costs of the appeal and application for leave to appeal.
Catchwords:

WORKERS COMPENSATION – effect of 2012 amendments to Workers Compensation Act 1987 (NSW) – 2012 amendments repealed s 151P (Damages for psychological or psychiatric injury) and inserted s 151AD (No damages for nervous shock injury to non-workers) – Sch 6, Pt 19H, cl 26 preserved the operation of repealed s 151P to or in respect of an injury received by a coal miner – mother of injured coal miner commenced proceedings against worker’s employer claiming damages for nervous shock – whether cl 26 preserved operation of repealed s 151P such that s 151AD did not apply to mother’s claim

 

STATUTORY INTERPRETATION – construction of Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26

WORDS & PHRASES – “to or in respect of” – Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26
Legislation Cited: Civil Liability Act 2002 (NSW)
Common Law Practice Act 1867 (Qld)
Compensation to Relatives Act 1897 (NSW)
Interpretation Act 1987 (NSW)
Motor Vehicles Insurance Acts 1936–1961 (Qld)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Amendment Act 1997 (NSW)
Workers’ Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workers’ Compensation Act 1916 (Qld)
Workers Compensation Amendment Act 2015 (NSW)
Workers Compensation (Benefits) Amendment Act 1989 (NSW)
Workers Compensation Legislation Amendment Act 1998 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144
Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89; [2008] SASC 371
Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commissioner of Taxation of the Commonwealth v Scully (2000) 201 CLR 148; [2000] HCA 6
Elkateb v Lawindi (1997) 42 NSWLR 396
Ellavale Engineering Pty Ltd v Pilgrim (2005) 2 DDCR 744; [2005] NSWCA 272
General Steel Industries…

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WorkPac Pty Ltd v Thearle [2016] NSWCA 303
Case
[2016] NSWCA 303
Decision Date

CaseChat Overview and Summary

In *WorkPac Pty Ltd v Thearle*, the New South Wales Court of Appeal considered a claim for damages for nervous shock brought by the mother of an injured coal miner against his employer, WorkPac Pty Ltd. The dispute arose from the application of amendments to the *Workers Compensation Act 1987* (NSW) in 2012, which repealed section 151P (concerning damages for psychological or psychiatric injury) and inserted section 151AD (prohibiting damages for nervous shock injury to non-workers).

The central legal issue before the Court of Appeal was whether clause 26 of Schedule 6, Part 19H of the *Workers Compensation Act 1987* (NSW) preserved the operation of the repealed section 151P in a manner that prevented section 151AD from applying to the mother's claim. Clause 26 stipulated that the repealed section 151P continued to operate "to or in respect of an injury received by a coal miner."

The Court of Appeal reasoned that the phrase "to or in respect of" in clause 26 was broad enough to encompass claims for nervous shock brought by a third party, such as the mother, arising from the injury sustained by the coal miner. The Court held that the purpose of clause 26 was to preserve the rights of coal miners and those claiming in respect of their injuries, notwithstanding the general repeal of section 151P. Consequently, section 151AD, which prohibited such claims, did not apply to the mother's claim.

The Court of Appeal granted leave to appeal, allowed the appeal, set aside the District Court orders, and dismissed Ms Thearle's proceedings against WorkPac with costs. Ms Thearle was also ordered to pay WorkPac's costs of the appeal and the application for leave to appeal.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days.

(3) Allow the appeal.

(4) Set aside the orders made by McLoughlin DCJ on 4 May 2016 in the District Court.

(5) Order that pursuant to UCPR 13.4, Ms Thearle’s proceedings against WorkPac be dismissed with costs.

(6) Ms Thearle to pay WorkPac’s costs of the appeal and application for leave to appeal.

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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