Elections Undone

The lump sum entitlements of many workers were recently restored in the majority NSW Court of Appeal decision Humphrey’s –v- Mulco Tool and Engineering Pty Ltd [2006] NSWCR 355.

His Honour Justice Basten (with whom Ipp JA agreed, McColl JA dissenting) held that on a proper statutory construction the election as defined in Section 151A of the Workers Compensation Act 1987 was not effective if the election was made in breach of Section 151C of the Act.

Historically this is a significant decision as many workers commenced Common Law proceedings in breach of Section 151C prior to the amendments brought in by the State Government on 27 November 2001.

The Decision in Humphrey’s means that these workers can now claim their entitlements pursuant to Section 66 and 67 of the Act. Ms Carro, Senior Workers Compensation Solicitor at Gerard Malouf & Partners who ran the Appeal for Mr Humphrey’s is quoted as saying:

“We were very pleased with the result in Mr Humphrey’s case and are encouraged that the Court of Appeal decided to preserve substantive rights of Workers who were unfairly affected by the changes in the Legislation.”

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