High Court unfortunately upholds Goudappel appeal


The High Court of Australia delivered judgment on 16 May (2014) in the high profile case ADCO Constructions Pty Ltd v Goudappel & Anor in favour of ADCO Constructions.
The decision is unfavourable for NSW injured workers and basically assists insurers and employers by reducing liability for permanent impairment claims under the Workers Compensation Act 1987 (‘WCA 1987’).

High Court unfortunately upholds Goudappel appeal



You may recall that the primary question to be determined by the High Court was:

Do the permanent impairment amendments under the Worker s Compensation Legislation Amendment Act 2012 (NSW) apply to claims made before 19 June 2012, where there was no specific claim for compensation under section 66 or section 67 of the WCA 1987?

The High Court has – unfortunately- held that the amendments do apply to such claims.

The effect of the High Court’s decision is that if an injured worker did not specifically claim compensation for permanent impairment before 19 June 2012, then the injured worker:

  • has no entitlement to permanent impairment compensation unless they exceed 10% whole person impairment (section 66(1) of the WCA 1987);
  • is not entitled to compensation for pain and suffering (former section 67 of the WCA 1987);
  • is limited to one claim for permanent impairment compensation for an injury (section 66(1A) of the WCA 1987); and
  • is limited to one medical assessment certificate as to the degree of permanent impairment in respect of an injury (section 322A of the WIM Act 1998).
There are no further avenues for appeal from the High Court decision

You can read the full text of the legal case here: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (16 May 2014) 

A shorter version is available here: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-18-2014-05-16.pdf

4 Responses to “High Court unfortunately upholds Goudappel appeal”

  1. Acoording to CBP Lawyers, a major implication of the High Court Goudappel decision is that many workers who have made a general claim for workers compensation prior to June 2012 will be denied the right to claim lump sum compensation if they did not specifically seek compensation under sections 66 or 67 of the WCA.

    The decision represents a challenge to general liability insurers by increasing the likelihood that workers will seek to join third party tortfeasors, particularly occupiers, due to the restrictions imposed under the WCA as amended. The decision may lead to a rise in claims for common law damages as injured workers seek to increase their options for compensation.

  2. Let’s just try and clarify the reason(ing) for the High Court’s unfavourable decision. Lot’s of legalese to cover, but let’s give it a go…

    The highly controversial and extremely harsh NSW workers compensation overhaul included amending section 66 of the State Workers Compensation Act 1987 in order to limit access to lump sum compensation to injured workers with a whole person impairment (WPI) of more than 10%. (No threshold existed before the change.)

    This (and the other) amendment was gazetted on 27 June 2012, and retrospectively applied to claims made on or after 19 June 2012.

    As far as we understand the whole case, on 20 June 2012, an ADCO Constructions Pty Ltd injured worker (Ron) – who had been receiving weekly benefits since his foot and ankle were crushed by steel purlins in April 2010 – claimed a lump sum compensation for a 6% WPI under of the NSW Workers Compensation Act 1987 , but the WCC found his claim was extinguished by the amendments.

    However, the Court of Appeal last year ruled in the injured worker’s (Ron) favour. They found he had basically accrued the right to apply for a lump sum payment when he had made his initial claim for weekly benefits in early 2010.

    The Court of Appeal found the transitional provisions of the legislation didn’t allow an amended regulation to interfere with a right accrued prior to the amendment’s date of publication, “whether or not it purported to take effect at an earlier date“.

    ADCO (the employer, and insurer undoubtedly) appealed the decision of the Court of Appeal. In one of their arguments they told the High Court that the only s66 claims that were protected by the transitional provisions – in clause 11 of Schedule 8 of the WC Regulation – ‘were those that “specifically sought” a lump sum payment under s66 prior to 19 June 2012.’

    The injured worker (and his lawyers) in turn argued that this ‘interpretation’ of clause 11 unfairly displaced the injured worker’s accrued rights, and that the (NSW) workers’ comp Act ‘should be construed in favour of injured workers whenever possible’.

    Unfortunately the High Court’s Chief Justice Robert French and Justices Susan Crennan, Susan Kiefel and Patrick Keane did not see it the same way.
    They stated that while the (NSW) Act “as a whole” should be construed beneficially to workers, ‘this didn’t mean that every provision or amendment could be.’

    In upholding ADCO’s appeal last Friday, the judges elaborated further by saying that the purpose of the new s66 “was patently not beneficial“.

    They also stated that the injured worker’s claim (2010) for weekly benefits “was not ‘a claim that specifically sought compensation under section 66 of the Act”.

    And so they stated:

    “There was no constructional choice which would enable clause 11 to be interpreted so as to avoid its application to (the injured worker’s) entitlement.”

    Any thoughts?

    Workcovervictim3 May 20, 2014 at 7:59 pm
  3. Sadly for Ron, this case was not the one which the High Court could have done the right thing with. It was so specific it was easy to go with the government and make a ruling which would not affect that many people, nor cause outrage. What is really needed is a case which attacks the retrospectivity of the amendments, now that is something the High Court could not ignore. Unfortunately it is probably too late to do much now, how many lawyers would be prepared to take it on? How many injured workers affected by retrospective changes would have the financial backing to take this on (and many of them have been thrown off WC now anyway) ? So again we have been well and truly thrown to the wolves. I hope one day we can get some good news, but under these extremist governments, I doubt it.

    • What an absolute disgusting joke. My husband was diagnosed with PTSD after working for 28 years in a Government dept in 2011. After a court fight because as of course the Insurance company declined the case, we won at the Commission in 2012. We started on the compensation merry go round straight away. Saw a Dr who put him well over 20%, insurance company failed to get a Drs report so we waited for so long for an appointment for an approved WC Independent MO, Finally we get that and he wont give a report because my Husband had to be hospitalized. We were told to come back in 6 months which we did 10 days ago. We now get told sorry he wont be getting pain and suffering. This is absolutely disgusting. We lost so much money because of the new amendments in 2012 now this and there is nothing we can do about it. We are furious not only for us but for everyone else that lives in NSW.