The Background

Maureen Thearle (the respondent), was the mother of a coal miner employed by a labour hire company WorkPac Pty Ltd (WorkPac) who placed the respondent’s son to work for Downer EDI Mining Pty Ltd (Downer EDI) at the Boggabri Open Cut Colliery (the mine). During the course of his work at the mine, the respondent’s son was injured. The respondent commenced proceedings in the District Court seeking damages for nervous shock she alleged she suffered after becoming aware of the injury her son sustained at the mine.

WorkPac sought an order that the respondent’s claim be summarily dismissed or struck out on the basis that the claim was precluded by s151AD of the Workers Compensation Act 1987 (NSW) (WCA).

Section 151AD was inserted into the WCA by virtue of amendments made in 2012. The effect of the 2012 amendments to the WCA was to:

  1. Repeal former s151P which allowed nervous shock claims to be pursued against an employer of an injured or deceased worker by a parent, spouse, brother, sister or child of the worker;
  2. Insert s151AD which operated to prevent claims for nervous shock unless it was a work injury. Section 151AD prevented claims for damages by relatives of an injured or deceased worker because their claims are not work injuries.

The respondent resisted an order dismissing her claim against WorkPac in reliance on clause 26, Part 19H, Schedule 6 of the WCA. Clause 26 provided that “the amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a coal miner…”

The respondent contended that her claim for nervous shock was one “in respect of an injury received by a coal miner” and therefore s151AD did not apply and s151P continued to operate in respect of her claim. It was common ground that the respondent’s son was a coal miner.

The Decision at First Instance

At first instance WorkPac’s motion was dismissed on the basis that summary determination was not appropriate.

The Decision on Appeal

WorkPac appealed and was successful in having the respondent’s claim against it dismissed with costs.

The New South Wales Court of Appeal acknowledged that the words “in respect of” had a wide, even elusive, meaning, taking their meaning from the context in which they appear. Here, the context was the WCA which provided a scheme of compensation to a worker injured in the course of his employment. In the case of death of the worker, the scheme was intended to benefit the worker’s dependants.

The use of the words “in respect of” in clause 26 were intended to do no more than provide that the 2012 amendments did not apply to derivative actions that might be brought by dependants following the death of a coal miner. That was consistent with the meaning of “worker” within the WCA, which extends to dependants in the case of a death at work.

The WCA was not intended to apply to an award of damages to a person, like the respondent, who was a stranger to the employment relationship and whose damages would not be assessed by reference to a work injury.

Implications for you

This judgment provides clarity regarding the operation of the 2012 amendments to the WCA and makes it clear that nervous shock claims by relatives of workers, including coal miners, are not permitted.

WorkPac Pty Ltd v Thearle [2016] NSWCA 303