THE High Court has sounded the death knell on workers ever being able to sue deemed employers unfettered by the restrictions on the awarding of damages contained in Part IV Division 2 of the Workers’ Compensation and Rehabilitation Act.
WMC Resources Limited v Koljibabic was the companion case to the well known Full Court decision Hewitt v Benale Pty Ltd that established that section 175 deemed employers could avail themselves of Part IV Division 2 of the act in defending claims for common law damages by workers.
Hewitt v Benale did not progress to the appellate stage.
The Koljibabic decision did and was the subject of a leave to appeal application to the High Court by the worker.
In Koljibabic, the worker’s claim for damages in the District Court was dismissed by the Full Court because the worker had not obtained the old section 93D(4) leave of the District Court prior to issuing proceedings against deemed employer WMC.
WMC operated a mine site and had contracted with the worker’s employer for work to be performed at the mine site.
The worker was injured while performing work for his employer at the minesite.
The High Court refused the worker’s application for leave to appeal to the High Court which effectively means that the law is now well settled in this State.
Deemed employers and their insurers can confidently continue to defend claims by workers with the benefit of the provisions of Part IV Division 2 of the act.
This is a victory for deemed employers and their insurers and workers will continue to be discouraged from making claims against deemed employers if they are unable to sue their employer due to the restrictions under Part IV Division 2 of the act.
Kerry Wood, senior associate
Mark Williams, partner
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