Cipriano v Sew Eurodrive Pty Ltd - [2016] NSWSC 1630

Supreme Court

New South Wales

Medium Neutral Citation: Cipriano v Sew Eurodrive Pty Ltd [2016] NSWSC 1630
Hearing dates: 3, 4 November 2016
Date of orders: 18 November 2016
Decision date: 18 November 2016
Jurisdiction: Common Law
Before: Fagan J
Decision:
1. The summons is dismissed.
2. The plaintiff is to pay the defendant’s costs of the summons.

Catchwords:
WORKERS COMPENSATION – application for leave to revoke election to receive permanent loss compensation – whether no reasonable cause to believe further deterioration would occur – Workers Compensation Act 1987 (NSW), s 151A
WORKERS COMPENSATION – limitation period – extension of time – claim 19 years out of time – prejudice to defendant – whether delay made the chances of a fair trial unlikely – Workers Compensation Act 1987 (NSW), s 151D
Legislation Cited: Motor Accidents Act 1988 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465
Corcoran v Tyre Marketers Australia [2001] NSWCA 300
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15
Roads and Traffic Authority v Malcolm (1996) 13 NSWCCR 272
Saad v J Robins & Sons Pty Limited [2003] NSWCA 87
Salido v Nominal Defendant (1993) 32 NSWLR 524
Category: Principal judgment
Parties: Anthony Cipriano (Plaintiff)
Sew Eurodrive Pty Ltd (Defendant)
Representation:
Counsel:
Ms Elizabeth Welsh (Plaintiff)
Mr Paul Stockley (Defendant)
Solicitors:
Mr Bandeli Hagipantelis, Brydens Compensation Lawyers (Plaintiff)
Mr Stephen Lee, Lee Legal Group (Defendant)

File Number(s): 2015/294920

Judgment

The plaintiff was an employee of the defendant when on 1 October 1994 he suffered an injury to his lumbar spine. The injury was sustained either as he bent over to commence lifting an electric motor or a component, or when he was actually lifting an electric motor. This occurred in the course of the plaintiff’s duties as a process worker in the defendant’s workshop at Wetherill Park in metropolitan Sydney. The plaintiff was 19 years of age at the time.
By summons filed 9 October 2015 the plaintiff seeks leave pursuant to s 151A(5) of the Workers Compensation Act 1987 (NSW) (“the Act”) to revoke an election he made on 21 April 1997 to receive permanent loss compensation for his injury, as provided for under the Act. If leave is granted to revoke then he seeks further leave pursuant to s 151D to bring an action against the defendant at common law, out of time, for damages for negligence.

The plaintiff’s election for statutory compensation

As in force in April 1997, s 151A required the plaintiff to make an election between alternate claims he might pursue in respect of a workplace injury. The relevant subsections were in these terms:

“(2) A person to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1630
Decision Date: 18 November 2016

CaseChat Overview and Summary

The case of Cipriano v Sew Eurodrive Pty Ltd involved a dispute concerning workers' compensation. The applicant, Cipriano, sought leave to revoke an election made to receive permanent loss compensation under the Workers Compensation Act 1987 (NSW). The matter was before the Industrial Commission of New South Wales. The applicant argued that there was no reasonable cause to believe that further deterioration would occur, which would justify revoking the election. The employer, Sew Eurodrive Pty Ltd, opposed the application on the grounds that allowing such a revocation would be an abuse of process.

The primary legal issue before the court was whether the applicant had provided sufficient grounds to justify revoking the election to receive permanent loss compensation. The court also needed to consider whether the claim, which was 19 years out of the statutory limitation period, could be extended due to the applicant's delay. The employer argued that any extension of the limitation period would prejudice the defendant, making the chances of a fair trial unlikely. The relevant sections of the Workers Compensation Act 1987 (NSW) that the court had to interpret were sections 151A and 151D.

The court examined the provisions of section 151A, which allows for the revocation of an election to receive permanent loss compensation if there is no reasonable cause to believe that further deterioration will occur. The court also considered section 151D, which provides for the extension of the limitation period if the delay has not prejudiced the defendant and the chances of a fair trial are not unlikely. After evaluating the evidence and arguments presented by both parties, the court determined that the applicant had not demonstrated sufficient grounds to justify revoking the election. Additionally, the court found that the delay in filing the claim had prejudiced the employer, making the chances of a fair trial unlikely. Consequently, the application for leave to revoke the election was dismissed.

The final orders of the court were that the application for leave to revoke the election to receive permanent loss compensation was dismissed, and no extension of the limitation period was granted.

Orders