Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12 Hearing dates: 21 November 2024 Date of orders: 13 February 2025 Decision date: 13 February 2025 Before: Stern JA at [1]; McHugh JA at [2]; Price AJA at [95] Decision: (1) Grant leave to appeal with respect to Ground 2 in the draft notice of appeal and direct the applicant to file a notice of appeal within seven days. (2) Appeal allowed. (3) Order (2) made by Scotting J on 11 June 2024 be set aside. (4) In lieu thereof, order that the plaintiff be refused leave to file the draft Amended Statement of Claim annexed to his notice of motion. (5) The applicant pay the respondent's costs of the application for leave to appeal and of the appeal. (6) The application for leave to appeal otherwise be dismissed. Catchwords: WORKERS COMPENSATION — uninsured liability regime — Workers Compensation Act 1987 (NSW), s 140 — meaning of "work injury damages" — meaning of "injury" — where relevant injury is silicosis DUST DISEASES — dust diseases legislation — distinction between legislative treatment of dust diseases and general workers compensation Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5 Interpretation Act 1987 (NSW), s 6 Workers Compensation Act 1926 (NSW), s 6(1) Workers Compensation Act 1987 (NSW), ss 2A, 3(1AA), 4, 140, 155 Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942 (NSW), ss 2(a)(ii), 4(b) Workers' Compensation (Dust Diseases) Act 1942 (NSW) Workers Compensation (Dust Diseases) Amendment Act 1987 (NSW), s 8(5A) Workers Compensation Legislation Amendment Act 2001 No 61 (NSW), Sch 4 Workers Compensation Legislation Further Amendment Act 2001 No 94 (NSW), Sch 9 Workers Compensation (Silicosis) Act 1942 (NSW) Workmen's Compensation Act 1916 (NSW) ss 5,12, Sch 3 Workmen's Compensation (Silicosis) Act 1920 (NSW), s 2 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 3, 4, 250 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Wass v Director of Public Prosecutions (NSW) (2023) 111 NSWLR 210, [2023] NSWCA 71 Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Law Book Company) New South Wales, Commission of Inquiry into Workers Compensation Common Law Matters, (31 August 2001) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2001 New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 November 2003 Category: Principal judgment Parties: Workers Compensation Nominal Insurer (Applicant) Marwan Sako (Respondent) Representation: Counsel: DF Villa SC (Applicant) D Hooke SC and A Schonell (Respondent)