On 12 March 2003 our client suffered severe injuries when a pushbike he was riding in Gardeners Road, Mascot was struck by a car travelling in the same direction. He sued the driver of that car for damages. For his part the driver pleaded that our client was guilty of contributory negligence, that is to say that he alleged the accident was partly our client’s fault.
The accident occurred while our client was in the course of his employment and as a result he received payments of workers compensation.
The claim for damages was settled by our client’s acceptance of an Offer of Compromise. The amount of the offer took into account the allegation of contributory negligence.
If damages are recovered by an injured worker, the worker is required to repay the workers compensation payments that have been received. In 1965 the Parliament of New South Wales enacted legislation as a result of which the recovery of workers compensation payments are to be reduced to the same extent as the workers contributory negligence. For example, if the worker was 50% responsible for the injury then the worker would be entitled to recover only 50% of the damages suffered but would only be required to repay 50% of the workers compensation payments.
Our client suggested to the employer that he was not required to repay the full amount of the workers compensation payments because he had settled his claim for a reduced sum due to the issue of contributory negligence. The employer alleged that because the claim was settled the worker was required to repay all of the workers compensation payments. The Courts have not been previously required to decide which of these arguments was correct. In a unanimous decision delivered on 12 March 2009 the High Court determined that our client was obliged to pay back only part of the compensation payments to his employer even though the claim had been settled.
This decision has far-reaching benefits for workers who can now bring and settle a claim for damages without being disadvantaged because the accident was partly their fault.
By Scott Hall-Johnston