Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12

Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12

Section 140(1) of the Workers Compensation Act 1987 (NSW), incorporating the definitions of 'injury' and 'work injury damages,' does not apply to claims where the relevant injury is a dust disease (silicosis); thus, the plaintiff cannot proceed against the Nominal Insurer for such claims where the employer was uninsured.

Parties
Applicant: Workers Compensation Nominal Insurer; Respondent: Marwan Sako
Jurisdiction
Australia
Judgment Date
13 February 2025
Procedural Posture
Leave to Appeal, Interlocutory Matter / Court of Appeal Decision
Outcome
Leave to appeal granted in respect of Ground 2; appeal allowed
Legal Topics
Dust Diseases, Uninsured Liability Regime, Legislative Definitions, Work Injury Damages, Claims Against Nominal Insurer
Workers Compensation Statutory Interpretation Dust Diseases Uninsured Liability Regime Legislative Definitions Work Injury Damages Claims Against Nominal Insurer

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Parties

Workers Compensation Nominal Insurer

Applicant

Marwan Sako

Respondent

Procedural Posture

Leave to Appeal, Interlocutory Matter / Court of Appeal Decision

Legal Issues

  1. 1 Does section 140 of the Workers Compensation Act 1987 (NSW) permit claims against the Nominal Insurer for dust disease (silicosis) injuries where the employer is uninsured?
  2. 2 Is the definition of 'injury' in the 1987 Act and 'work injury damages' in the 1998 Act exclusionary of dust diseases in relation to s 140?

Ratio Decidendi

Section 140(1) of the Workers Compensation Act 1987 (NSW), incorporating the definitions of 'injury' and 'work injury damages,' does not apply to claims where the relevant injury is a dust disease (silicosis); thus, the plaintiff cannot proceed against the Nominal Insurer for such claims where the employer was uninsured.

Court Disposition

Leave to appeal granted in respect of Ground 2; appeal allowed

Orders

  • Leave to appeal granted with respect to Ground 2 in the draft notice of appeal and applicant to file a notice of appeal within seven days.
  • Appeal allowed.