J Blackwood & Son v Skilled Engineering [2008] NSWCA 142

New South Wales Court of Appeal

CITATION: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 March 2008

JUDGMENT DATE: 24 June 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 17

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORT – negligence – duty of care – worker's services made available to third party by labour hire company – nature of any duty of care owed by third party to worker – contributory negligence – whether worker took reasonable care for own safety – need to take into account practical opportunities for choice available to worker in deciding whether there is contributory negligence - CONTRIBUTION – joint or several tortfeasors – third party and employer of injured worker – employer paid worker compensation pursuant to Workers Compensation Act 1987 – employer brought proceedings against third party seeking an indemnity under s 151Z(1)(d) Workers Compensation Act – operation of s 151Z Workers Compensation Act – whether worker "entitled to take proceedings" to recover damages from third party – when amount recoverable in such proceedings is nil – s 151Z(2) Workers Compensation Act – assessment of proportionate responsibilities of employer and third party – to take into account causal significance of breach of duty of each and their culpability concerning any such breach of duty – application of s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – effect of contributory negligence on quantum of damages recoverable under Act – s 9 Law Reform (Miscellaneous Provisions) Act 1965 - STATUTORY INTERPRETATION – whether amendments to Part 5, Division 3 of Workers Compensation Act introduced by Workers Compensation Legislation Further Amendment Act 2001 applicable to assessment of quantum of contribution towards damages – construction of transitional provisions in clause 9, Part 18C of Schedule 6 Workers Compensation Act – where proceedings seeking damages were not begun before commencement of 2001 amendments – where all payments of compensation were made prior to commencement of 2001 amendments – whether right to indemnity accrued before commencement of 2001 amendments – whether reasonably certain that Parliament intended that amendments would apply to that right - WORDS AND PHRASES – "in respect of the recovery of damages" - LIMITATION OF ACTIONS – manner in which Limitation Act 1969 applies to employer's right of recovery under s 151Z(1)(d) and 151Z(2)(e) Workers Compensation Act of compensation paid