On 23 July 2020 the NSW Supreme Court of Appeal handed down the decision of Gardiner v Laing O’Rourke Australia Construction Pty Limited  NSWCA 151. It involved a worker who had complained to the Anti-Discrimination Board about his employer, received a payment of money, and later claimed workers compensation for psychological injury. The Court considered whether that was permissible.
The Court of Appeal allowed Mr Gardiner to retain the money he had received via settlement & Deed following the complaint to the Anti-Discrimination Board (“the Discrimination claim”) and also still pursue a claim for workers compensation payments.
All 3 members of the Court of Appeal thought that, in a matter such as this, proper review of the intent and purpose of the Deed meant Mr Gardiner’s payment in the Discrimination claim was not “damages” in respect of his “injury” as defined in the Workers Compensation Act 1987 (NSW)(“WCA”)
Basten JA went further, commenting there was an argument any other payment under a separate statutory scheme may not constitute “damages” that would stop a worker from receiving workers compensation. This may raise a possible tension between this matter, and an earlier decision of the Court of Appeal in Adams.
Mr Gardiner was employed by the respondent, Laing O’Rourke Australia. His employment was terminated, and he wrote to the President of the Anti-Discrimination Board complaining of discrimination on the grounds of disability. The claimant’s Anti-Discrimination Board complaint was settled by way of a deed executed on 5 September 2018, including payment of just over $29,000. This deed specifically stated that the Appellant had not finalised his rights to any Workers Compensation Claim.
Before this matter had been settled, on 20 March 2018 the appellant had lodged a claim for compensation under the Workers Compensation Act 1987.
Laing O’Rourke alleged that the claimant had received damages awarded in respect of the same injuries, so that Mr Gardiner could not claim workers compensation because of section 151A(1) of the 1987 Act.
Laing O’Rourke’s argument was accepted by both the Arbitrator in the Workers Compensation Commission, and on the appeal to the President of the WCC. Mr Gardiner appealed to the NSWCA. Mr Gardiner succeeded, with all three judges in the Court of Appeal ruling in his favour.
The three judges approached the matter slightly differently. Justices Leeming and Emmett found the definition of damages required an analysis of what was being compromised, in order to determine whether the deed was in respect to an injury.
Their honours stated that when interpreting a Deed, it ought to be considered whether this deed was for an injury, or for payment of other damages, or for payment from a statutory scheme such as the Anti-Discrimination Board. This requires an analysis of what has been compromised.
Justice Leeming considered the parties must have agreed the payments were not in respect of the same injury as the compensation claim, because the Deed contained 5 separate provisions that stated the workers compensation rights would be preserved.
After conducting that analysis, their Honours found that the payment in the Discrimination claim did not relate to the injury, and that damages had not been paid for the same injury for which Mr Gardiner claimed workers compensation.
Justice Basten approached the matter differently. He looked at the various provisions of the Workers Compensation Act, what is actually included in the meaning of “damages”, and whether various provisions of the Act could be read consistently with each other. He concluded that a payment under another statutory scheme that was independent of workers compensation, did not seem to come within the definition of ‘damages’ in the WCA. He thought that was the case, irrespective of the content of the Deed (notwithstanding he also looked at the intent and purpose of the Deed, in case his position on that was not accepted. He too found the intent and purpose here was not to pay damages for the workers compensation injury).
The commentary and approach by Justice Basten raises possible tension with the earlier decision in Adams v Fletcher International Exports Pty Limited  NSWCA 238. In that matter the Court of Appeal held that the Deed and payment following a claim in the Industrial Relations Commission had been “damages” for the relevant injury, and found that Mr Adams could not pursue workers compensation.
It is possible the two cases do not now sit easily with each other.
However, a point that was unanimous in this matter of Gardiner was that one needs to look at whether there has been a payment of damages in respect of an injury. It will therefore be necessary in any similar matter to look at what is actually being compromised, and what is actually being achieved, if a worker and employer have entered into a Deed resolving another claim. If damages are paid in respect of an injury, then arguably notwithstanding the outcome of Gardiner, a worker may still be precluded from recovering workers compensation payments.
Post by Hicksons Partner, Najeh Marhaba, and Partner, Doyle Myles.