Hickson v Goodman Fielder Limited [2009] HCA 11

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

GLENN ANDREW JOSEPH HICKSON APPELLANT

AND

GOODMAN FIELDER LIMITED RESPONDENT

Hickson v Goodman Fielder Limited [2009] HCA 11

12 March 2009

S470/2008

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 24 April 2008.

3. In lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

A S Bell SC with D J Hooke for the appellant (instructed by Beilby Poulden Costello)

J T Gleeson SC with P Kulevski for the respondent (instructed by Eakin McCaffrey Cox Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hickson v Goodman Fielder Limited

Workers' compensation – Contributory negligence – Worker recovers workers' compensation as a result of injury – Worker brings damages claim against third party tortfeasor – Damages claim settled – Employer seeks recovery of workers' compensation pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(b) – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates to reduce amount of repayment on account of worker's contributory negligence where damages claim settled.

Statutes – Interpretation – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates on damages recovered by way of settlement – Whether reduction of repayment proportionate or by specific amount.

Words and phrases – "damages recoverable", "to the same extent".

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 9, 10.

Workers Compensation Act 1987 (NSW), s 151Z(1), (5).

1. GUMMOW J. The appeal should be allowed and consequential orders made as proposed by Bell J. I agree with her Honour's reasons. 2. HAYNE J. I agree with Bell J. 3. HEYDON J. I agree with Bell J. 4. KIEFEL J. I agree with the orders proposed by Bell J for the reasons given by her Honour. 5. BELL J. On 12 March 2003, the appellant ("Mr Hickson") suffered serious injury as the result of a collision between his pushbike and a motor vehicle driven by Mr Ala. The accident occurred while Mr Hickson was on a journey to which s 10 of the Workers Compensation Act 1987 (NSW) ("the Compensation Act") applies. Accordingly, his injury for the purposes of the Compensation Act is taken to have occurred in the course of his employment with the respondent ("Goodman Fielder"). Goodman Fielder made compensation payments to Mr Hickson. Mr Hickson also had rights in tort against Mr Ala. 6. Mr Hickson sued Mr Ala in tort in the District Court of New South Wales ("the tortfeasor action"). Goodman Fielder was not a party to that action. Mr Ala filed Notice of Grounds of Defence containing extensive particulars of Mr Hickson's alleged contributory negligence. It was common ground in the later litigation between Goodman Fielder and Mr Hickson that contributory negligence had been a live issue in the tortfeasor action. 7. The tortfeasor action was settled by Mr Hickson and Mr Ala. Effect to the settlement was given by an order in the District Court (Charteris DCJ) for judgment in favour of Mr Hickson for $2.8 million plus costs. The order was pronounced orally on 6 June 2006. No formal order was settled and entered. 8. Goodman Fielder commenced proceedings in the District Court on 7 June 2006 against Mr Hickson seeking repayment of the amount of the compensation which it had paid to Mr Hickson, a sum of $607,315.43, pursuant to s 151Z(1)(b) of the Compensation Act[1] ("the repayment action"). 9. The Compensation Act manifests a policy against the receipt of what might be called "double compensation". This is evident in provisions in Pt 5 which include those of s 151Z. In a case such as this, in which a worker recovers, first, compensation and, secondly, damages from a person other than the employer, s 151Z(1)(b) provides that the worker is liable to repay out of those damages the amount of compensation which has been paid in respect of the injury and that the worker is not entitled to any further compensation. 10. Under s 9(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)[2] ("the Law Reform Act"), Mr Hickson's claim against Mr Ala was not defeated by his contributory negligence but the damages recoverable by him were subject to reduction on this account[3]. Section 10(2) of the Law Reform Act provides for the reduction in the liability of the worker to repay workers' compensation in a case in which the damages recoverable at common law are reduced on account of contributory negligence. 11. In answer to Goodman Fielder's claim, Mr Hickson pleaded that his actions on 12 March 2003 contributed to his injuries and that his liability to repay compensation to Goodman Fielder was reduced to the same extent that the damages recoverable by him against Mr Ala were reduced. 12. The principal question raised by the appeal is whether the reduction in the liability provided by s 10(2) of the Law Reform Act operates only where the third party tortfeasor is sued to judgment and the court has made a finding of the extent to which it is just and reasonable that the damages recoverable are reduced having regard to the worker's share in responsibility for the damage. 13. In the repayment action the District Court was asked to determine three questions separately. The first question was whether s 10(2) of the Law Reform Act can operate to reduce the amount of workers' compensation benefits repayable to Goodman Fielder from damages recovered as the result of a settlement of Mr Hickson's action against Mr Ala without any determination by a court concerning contributory negligence and the quantum of damages (question 1(a)). Kearns DCJ answered this question "yes". His Honour went on to hold, subject to the rules of evidence, that evidence was admissible in the repayment action to establish the extent to which the damages recovered by Mr Hickson as a result of the settlement of the tortfeasor action were in fact reduced on account of his contributory negligence (question 1(b)). His Honour answered the third question, which was expressed to be in the alternative to the second, holding that evidence was admissible to establish the degree of Mr Hickson's contributory negligence and the quantum of the damages to which he would have been entitled without reduction for contributory negligence (question 3)[4]. 14. An appeal by Goodman Fielder to the New South Wales Court of Appeal was successful (Giles JA and Hislop J; Hodgson JA dissenting)[5]. The Court of Appeal set aside the answers to the questions given by the District Court and answered "no" to question 1(a) with the result that questions 1(b) and 3 did not arise. 15. By special leave Mr Hickson appeals to this Court. He seeks reinstatement of the position established in the District Court and an order dismissing the appeal from that Court to the Court of Appeal. For the reasons which follow, the appeal to this Court should be allowed and the consequential orders sought by Mr Hickson should be made.