Cox v Workers Compensation Nominal Insurer - [2016] NSWDC 233

District Court

New South Wales

Medium Neutral Citation: Cox v Workers Compensation Nominal Insurer [2016] NSWDC 233
Hearing dates: 5 August 2016
Date of orders: 05 August 2016
Decision date: 05 August 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Orders (1) and (2) as sought in the notice of motion filed 22 April 2016

Catchwords: CIVIL – Limitations – Action for damages for personal injury – Industrial accident – Workers Compensation Act 1987 s 151D(2) – Application nearly 6 years after expiration of limitation period – Delay explained by requirements of workers compensation legislation – Actual employer wound up – Whether defendant prejudiced because of loss of documents.
Legislation Cited: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Service v MacDougall [2011] NSWDC 66
Category: Procedural and other rulings
Parties: Jeffrey Noel Cox (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)
Representation: Mr I Roberts SC (Plaintiff)
Mr P Minary (Plaintiff)
Mr P Perry (Defendant)

File Number(s): 2015/356747
Publication restriction: No

Judgment

HIS HONOUR: This is an application under s 151D of the Workers Compensation Act 1987. By a statement of claim filed on 4 December 2015, the plaintiff claims damages for personal injury which he sustained in the course of his employment on or about 1 April 2005. Under s 151D(2), a person to whom compensation is payable under the Workers Compensation Act 1987 is not entitled to commence court proceedings for damages in respect of the injury concerned against his employer, who is liable pay to the compensation, more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. There is no dispute that the plaintiff was injured on 1 April 2005, arising out of and in the course of his employment with Illawarra Stevedores Pty Ltd. The three-year limitation period expired on 1 April 2008. The plaintiff accordingly seeks leave nunc pro tunc to extend the time within which to commence his action up until 4 December 2015, when it was actually commenced.
The Workers Compensation legislation provides that, during certain periods, time does not run for the calculation of the three-year limitation period. MFI 2 is a schedule headed “Synopsis” prepared by learned counsel for the plaintiff, indicating when time was not running. According to that synopsis, time did not run between 12 November 2012 and 12 January 2013 because there was a medical dispute in the Workers Compensation Commission about whether the plaintiff had permanent impairment in excess of the threshold. The relevant provision is s 151DA(1)(a) of the Workers Compensation Act 1987. It is also clear that time did not run between 20 February 2013 and 20 March 2014 because there was a delay in determining the work injury damages claim following the time that the plaintiff provided all relevant particulars. The appropriate legislative provision is…

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.

Continue reading Cox v Workers Compensation Nominal Insurer

Details

AGLC: Cox v Workers Compensation Nominal Insurer [2016] NSWDC 233
Case: [2016] NSWDC 233
Decision Date: 05 August 2016

CaseChat Overview and Summary

In the matter of Cox v Workers Compensation Nominal Insurer, the plaintiff sought damages for personal injury sustained in an industrial accident. The defendant, Workers Compensation Nominal Insurer, contested the claim on the basis that the action was brought beyond the limitation period specified in the Workers Compensation Act 1987. The case was heard in the relevant court of first instance, where the primary issue revolved around whether the delay in bringing the action was justified under the provisions of the Workers Compensation Act. The court had to determine if the delay, which occurred nearly six years after the expiration of the limitation period, could be excused due to the requirements of the workers compensation legislation, specifically s 151D(2), and whether the defendant had been prejudiced by the loss of documents due to the actual employer winding up.

The court examined the statutory provisions and the facts surrounding the delay, particularly focusing on the obligations under the workers compensation legislation that required the plaintiff to pursue compensation through the workers compensation scheme before bringing an action in tort. The court also considered the impact of the employer’s winding up on the availability of documents and whether this had prejudiced the defendant’s ability to defend the claim. The primary legal issue was whether the delay was justified under the circumstances and whether the defendant could demonstrate sufficient prejudice to warrant dismissal of the plaintiff's claim.

In its reasoning, the court found that the plaintiff's delay in bringing the action was indeed justified by the statutory requirements under the Workers Compensation Act. The court held that the plaintiff had fulfilled the necessary preconditions set out by the legislation before bringing the tort action. Additionally, the court noted that while the actual employer had wound up, this did not result in significant prejudice to the defendant’s ability to defend the claim. Consequently, the application to dismiss the action on the grounds of limitation was dismissed. The court ordered the proceeding to continue, allowing the plaintiff’s claim to proceed to trial.

Orders

Orders of the court

Orders (1) and (2) as sought in the notice of motion filed 22 April 2016

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cox v Workers Compensation Nominal Insurer [2016] NSWDC 233
Hearing dates:	5 August 2016
Date of orders:	05 August 2016
Decision date:	05 August 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Orders (1) and (2) as sought in the notice of motion filed 22 April 2016
Catchwords:	CIVIL – Limitations – Action for damages for personal injury – Industrial accident – Workers Compensation Act 1987 s 151D(2) – Application nearly 6 years after expiration of limitation period – Delay explained by requirements of workers compensation legislation – Actual employer wound up – Whether defendant prejudiced because of loss of documents.
Legislation Cited:	Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Service v MacDougall [2011] NSWDC 66
Category:	Procedural and other rulings
Parties:	Jeffrey Noel Cox (Plaintiff) Workers Compensation Nominal Insurer (Defendant)
Representation:	Mr I Roberts SC (Plaintiff) Mr P Minary (Plaintiff) Mr P Perry (Defendant)
File Number(s):	2015/356747
Publication restriction:	No