Elhawat v Workers Compensation Nominal Insurer

[2025] NSWCA 88

NSW Court of Appeal

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Interrogate

Catchwords

1. Insurance
2. › Workers compensation
3. › Work injury damages
4. › Pre-filing procedures
5. › Failure to serve pre-filing defence within time
6. › Whether employer barred from raising contributory negligence
7. › Whether contributory negligence 'wholly or partly disputes liability'
8. › Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 315, 316, 318, 318A
1. Statutory Interpretation
2. › Notes to statutory provisions
3. › Whether statutory note forms part of Act
4. › Whether note may be considered as extrinsic material
5. › Whether note can displace plain meaning of section
6. › Interpretation Act 1987 (NSW), ss 34, 35
1. Tort
2. › Negligence
3. › Contributory negligence
4. › Whether contributory negligence is an aspect of liability or damages
5. › Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9

Quick Take

An employer that fails to serve a pre-filing defence within 42 days under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is barred from raising contributory negligence in subsequent court proceedings, as contributory negligence 'wholly or partly disputes liability' within the meaning of s 318(1)(c).