GLAMBED (Trading as EXPERT DECORATIVE SERVICES) v KLAPPIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 10 April 1995, 25 May 1995 [1995] NSWCA 177 WORKERS COMPENSATION ACT APPEAL — STATUTORY CONSTRUCTION — s151Z(1)(c) FACTS The applicant sustained an injury within the meaning of the Workers' Compensation Act 1987 between his home and place of work. On 24 April 1988, the applicant commenced proceedings under the Motor Accidents Act 1988 and was paid some benefits under that Act. On 24 October 1989 the applicant commenced proceedings for damages in the District Court. ISSUE Whether the payments under the Motor Accidents Act precluded the applicant from proceeding to obtain workers' compensation by virtue of the operation of s151Z(1)(c) of the Workers' Compensation Act 1987? Held (per Clarke JA; Priestley and Handley JJA concurring) Appeal dismissed for the reasons set out in Sanders v Nadow Training Program Ltd (Court of Appeal, 25 May 19951 unreported). Priestley JA Like Sanders v Nadow Training Program Ltd, judgment in which was delivered this morning, this appeal raises questions of interpretation of s151Z(1) of the Workers Compensation Act 1987. Again, I have had the benefit of reading in draft the reasons of Clarke JA, and again I agree generally with him. In the last paragraph of Clarke JA's reasons he refers to an argument about Transcover relied on by the appellant. For the reasons which, in Sanders, I relied on in addition to those of Clarke JA in that case, I do not think the appellant's Transcover argument is of any help to the appellant in this appeal. I agree with the orders proposed by Clarke JA. Clarke JA The following facts were agreed between the parties for the determination of a preliminary issue at first instance "(1) On 4 November 1987 the applicant was on a journey within the meaning of the Workers' Compensation Act 1987 (the Act') between his place of abode and his place of employment; (2) The applicant sustained injury on that journey; (3) On 24 April 1988 the applicant commenced proceedings under "the Motor Accidents Act 1988" by lodging a "personal injury claim form" (it does appear that the claim initially was made under the Transport Accidents Compensation Act 1987) ("the Transcover Act") and assessed subsequently under the former Act when that Act came into force; (4) The applicant was paid some benefits, namely for wage loss and for reimbursement for medical expenses, in accordance with the Motor Accidents Act"; (5) Those benefits were paid with respect to the injury which is the basis for the claim in this application for determination' (6) On 24 October 1989 the applicant commenced proceedings for damages in the District Court (Plaint No 10542/89) "against one Pat P Evans of Croydon, New South Wales." 2 UNREPORTED JUDGMENTS The point at issue was whether the payments referred to in point 4 barred the applicant, who is the respondent in this Court, (I will continue to call him the applicant), from proceeding to obtain workers' compensation by virtue of the operation of s151Z(1)(c) (or the former s150 of the Workers' Compensation Act 1987). The point was determined in the first instance by Commissioner Wright in favour of the applicant. The appellant, who was the respondent, before Commissioner Wright (I will call him the employer) sought a review of that decision pursuant to s36 of the Compensation Court Act 1984. That review was conducted by Gibson J who, on 17 March 1992 dismissed the application for review. The employer has now appealed from that decision, contending that the payments made to and on behalf of the applicant constituted damages within the meaning of that expression in s151Z(1)(c) of the Act with the consequence that the applicant was not entitled to maintain his workers' compensation claim. Although it is apparent from the agreed facts that the applicant sustained his injury at a time when the Transport Accidents Compensation Act 1987 was in force, and s150 of the Act governed the right of the applicant to proceed with a claim for compensation, the agreed facts do not identify when the benefits were paid to the applicant and the case was argued upon the basis (both at first instance and in this Court) that it did not matter whether s150(8) of the Act applied or whether the now operative provision (s151Z(1)(c)) applied. Furthermore, although the agreed facts do not mention it there was material before the court which led both parties to agree, subject to a proviso I will mention, that the circumstances in which the applicant received injury created a liability in another person to pay damages in respect of the applicant's injury. The proviso concerns an argument by the applicant that as the Transcover Act was in force at the time of the accident there was no liability in another party. In the light of s40 of the Transcover Act it is my tentative view that the argument should not be accepted and I am disposed to assume that it is bad. Upon that assumption, the question raised in this appeal is substantially identical with the issue in the case of Sanders v Nadow Training Program Ltd (Court of Appeal, 25 May 1995, unreported) and for the reasons given there I would propose that this appeal be dismissed with costs. Handley JA I agree with Clarke JA. Appeal dismissed with costs. Counsel for the appellant: WP KEARNS Solicitors for the appellant: MORAY AND AGNEW Counsel for the respondent: KF MORRISSEY Solicitors for the respondent: SLATTERY THOMAS AND LIVERS