Beller v Rocla Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Beller v Rocla Pty Ltd [2019] NSWDC 616

Hearing dates:

2 September 2019

Date of orders:

01 November 2019

Decision date:

01 November 2019

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

(1)   Verdict for the plaintiff in the sum of $282,411.63.
(2)   The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

(3)    In the event that any party seeks a different cost order, please notify my Associate within 14 days.

Catchwords:

LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts

Legislation Cited:

Limitation Act 1969
Workers Compensation Act 1987

Cases Cited:

Baggs v University of Sydney Union [2103] NSWCA 451
Baker-Morrison v State of New South Wales [2009] 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
State of New South Wales v Gillett [2012] NSWCA 83

Category:

Principal judgment

Parties:

Kenneth Beller (Plaintiff)
Rocla Pty Ltd (Defendant)

Representation:

Counsel:
P A Beale/J E Doyan (Plaintiff)
D O’Dowd (Defendant)

  Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2018/192277

Publication restriction:

None

Judgment

Introduction

1. The plaintiff seeks damages for personal injury arising from an accident at the defendant’s premises on 7 March 2011. At that time, the plaintiff was employed by Workforce Mobility Unit Trust (Workforce), a labour hire firm. The plaintiff was sent by Workforce to work at the defendant’s premises in Mittagong as a casual labourer involved in the process of manufacturing concrete railway sleepers.

2. These proceedings were commenced on 21 June 2018. The only live issue in the proceedings is the defendant’s Limitation Act1969 defence (the Act).

3. If the defence is established, the proceedings should be dismissed. If not, the parties have agreed on Consent Orders which would result in entry of judgment for the plaintiff.

Evidence

4. At the hearing the plaintiff read an affidavit sworn by him on 2 September 2019 and tendered a Chronology, which is to be treated as evidence, in accordance with the Practice Note.

5. The defendant tendered a statement of the plaintiff taken by an insurance investigator dated 9 September 2011 (the Plaintiff’s Statement), documents relating to the plaintiff’s resignation from Workforce and a Consent Judgment filed in the section 151Z recovery proceedings (the Recovery Proceedings) between the Workers Compensation Nominal Insurer and the defendant filed in this Court on 9 July 2014 (the Consent Judgment).

6. The plaintiff was called to give evidence before me on 2 September 2019 and was cross-examined.

Facts

7. The following facts are taken from the plaintiff’s affidavit, the plaintiff’s evidence, the Plaintiff’s Statement, the Chronology and the defendant’s documentary evidence.

8. In 1998 the plaintiff left school in Year 11. After leaving school he completed a pre-apprenticeship in mechanics. From 2000 until the end of 2010 he worked in a variety of different roles. For each of those positions he received on-the-job training and qualifications.

9. In or about September 2010 the plaintiff’s mother was diagnosed with terminal cancer. The plaintiff believed that she had…