WorkPac Pty Ltd v Thearle

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 The dispute arose from the application of amendments to the *Workers Compensation Act 1987* (NSW) in 2012, which repealed section 151P (concerning damages for psychological or psychiatric injury) and inserted section 151AD (prohibiting damages for nervous shock injury to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whether clause 26 of Schedule 6, Part 19H of the *Workers Compensation Act 1987* (NSW) preserved the operation of the repealed section 151P in a manner that prevented section 151AD from applying to the mother's claim. Clause 26 stipulated that the repealed section 151P continued to operate "to or in respect of an injury received by a coal miner."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.