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WORKERS COMPENSATION – effect of 2012 amendments to Workers Compensation Act 1987 (NSW) – 2012 amendments repealed s 151P (Damages for psychological or psychiatric injury) and inserted s 151AD (No damages for nervous shock injury to non-workers) – Sch 6, Pt 19H, cl 26 preserved the operation of repealed s 151P to or in respect of an injury received by a coal miner – mother of injured coal miner commenced proceedings against worker’s employer claiming damages for nervous shock – whether cl 26 preserved operation of repealed s 151P such that s 151AD did not apply to mother’s claim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