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Section 151Z

To 1987 Act section 151Z >>

Taleb v Woolworths Ltd [2010] NSWDC 238. Murrell SC DCJ.

[25] Section 151Z (2) of the Workers Compensation Act1987 provides that the damages awarded in favour of an employee are to be reduced in the following circumstances:

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer.

[26] The expression "is entitled to take proceedings" refers to an employee's cause of action against an employer, rather than to whether the enforcement of the cause of action would result in an award of damages: Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 (Grljak No 1). In considering the question of entitlement to take proceedings, it is irrelevant that, if proceedings were taken, the employee would not recover damages because the employee could not satisfy the 15% permanent impairment threshold.

[27] Kendrick v Bluescope Steel (AIS) Pty Limited [2007] NSWSC 1288 [summary here] is an example of a case in which s 151Z (2) was applied in circumstances where there was fault both by a driver of a motor vehicle and by an employer. If Toll was guilty of negligence as an employer, then the damages awarded against Woolworths are to be reduced in accordance with s 151Z (2).

Given the level of its presence on the warehouse premises, Toll should have been well aware of deficiencies in the working conditions within the warehouse. It should have known that the traffic system was unsafe in that there were no lane markings or arrows in the laneway, and no other clear directions ensuring that traffic kept to its correct side of the laneway.

Toll should have realised that the lack of markings and directions was a potential danger to its employees because of the risk of collision in an area of significant two-way traffic.

[29] Section 151Z (2) (c) and (d) provide that damages are to be reduced in the following way:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, 

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages.

[30] In Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 at [74], McColl JA summarised the operation of s 151Z (2) (c) and (d) as follows:

"(b) The figure used in s 151 Z (2) (c) is calculated by the Court:

(i) deciding the amount of the contribution the non-employer would (but for Pt 5) be entitled to recover from the employer as a co-tortfeasor or otherwise at common law;

(ii) deciding what is "the amount of the contribution recoverable" within the section 151 Z (2) (c) and s 151 Z (2) (d); and

(iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker’s common law damages from the non-employer tortfeasor are to be reduced: Grljak No 1 (at 88 – 89) Clout (at [29] – [31]).”

[31] As well as employing the forklift driver, Woolworths was the occupier of the warehouse and had the care, management and control of those premises. As Woolworths was both responsible for the traffic arrangements on the site and employed the negligent forklift driver, its liability is significantly higher than that of Toll. I assess the amount of Toll’s contribution at 20% 

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