Gardiner v Laing O’Rourke Australia Construction Pty Ltd (NSWCA 2020)

Key Takeaways

The NSWCA has allowed a worker to retain damages received in respect of a complaint under the Anti-Discrimination Act 1977 (NSW) (‘ADA’), and also pursue a claim for workers compensation under the Workers Compensation Act 1987 (NSW) (‘WCA’).

Brief Facts

The appellant, made a complaint to the Anti-Discrimination Board against the respondent, Laing O’Rourke Australia, alleging discrimination on the grounds of disability and victimisation during the course of his employment. The complaint was settled by way of a deed of release, the recitals of which expressly stated that parties were ‘aware of, and did not intend to resolve, any claim the appellant might have pursuant to any applicable worker’s compensation legislation’.

Prior to settlement, the appellant lodged a workers compensation claim on the basis that he suffered an aggravation/deterioration of a psychological condition during the course of his employment. The respondent denied the claim on the basis that the appellant had received damages in respect of the same injury, and was thus precluded from bringing a claim pursuant to s151A(1) of the WCA.

Both the Arbitrator and Judge Phillips, president of the Workers Compensation Commission, upheld the respondent’s decision to contest the claim. The appellant subsequently filed an appeal in the NSWCA.

Judgment

All three judges of the NSWCA examined the issue with respect to the intent and purpose of the deed of release. They unanimously found that a proper reading of the deed led to the conclusion that the damages payable with respect to the discrimination complaint did not constitute damages payable for any ‘injury’ that was suffered by the appellant. The deed also expressly contained provisions preserving the appellant’s workers compensation rights.

Basten JA also examined the issue with respect to the application of s151A of the WCA. He aptly confirmed that the purpose of s151A of the WCA is to ensure that a worker does not receive workers compensation and damages with respect to the same injury. He noted the workers compensation regime is concerned with ‘damages payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an extraneous statutory scheme.’ Basten JA further stated that any deed entered into cannot vary the operation of s151A(1) of the WCA, which will apply ‘despite any contract to the contrary’ in accordance with s234 of the Workplace Injury Management and Workers Compensation Act 1998.

Basten JA found that the ADA, when read alongside workers compensation legislation, did not support the foreclosure of a claim for workers compensation (or even work injury damages), even if the complaint of discriminatory conduct gave rise to a personal injury.

The NSWCA allowed the appeal and remitted the matter to the Workers Compensation Commission.

Implications

The decision confirms the operation of s151A of the WCA. A worker is precluded from receiving workers compensation payments only if they have received damages in respect of an injury for which their employer is liable. Accordingly, in any similar circumstance, a thorough examination of any deed will be required to determine whether a worker has been compensated for an ‘injury’. Any exclusion clauses in a deed will not overcome the operation of s151A of the WCA.