Daniel v Holroyd City Council - [2016] NSWDC 239

District Court

New South Wales

Medium Neutral Citation: Daniel v Holroyd City Council [2016] NSWDC 239
Hearing dates: 30 September 2016
Date of orders: 12 October 2016
Decision date: 12 October 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
The plaintiff’s application be dismissed

Catchwords: Torts – negligence – work injury claim – leave sought to revoke election under Section 151A of the Workers Compensation Act 1987 (NSW)
Legislation Cited: Workers Compensation Act 1987 (NSW)
Cases Cited: New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15
Corcoran v Tyre Marketers Australia [2001] NSWCA 300
Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87
Category: Procedural and other rulings
Parties: David Aaron Daniel (Plaintiff)
Holroyd City Council (Defendant)
Representation:
Counsel:
B Hughes SC and T Meakes (Plaintiff)
C Tanner (Defendant)
Solicitors:
Gorman Jones Lawyers (Plaintiff)
Bartier Perry (Defendant)

File Number(s): 2016/00155621

Judgment

The plaintiff by way of Summons filed 20 May 2016 seeks orders in the following terms:

“1. Pursuant to Schedule 6, Part 18C, Clause 9(3) of the Workers Compensation Act 1987 and also pursuant to 151A of the Workers Compensation Act 1987 (as at 13 June 2000) that the election made by virtue of his acceptance of payment pursuant to s67 of the Workers Compensation Act 1987 thereby preclude him from claiming common law damaged [sic] from his employer, Holroyd City Council, be revoked and
2. Pursuant to S151D of the Workers Compensation Act 1987, leave of the Court be granted to commence proceedings in this matter.”

At the beginning of the hearing of the Summons the parties indicated that the application would initially only be made in relation to obtaining the leave of the Court to revoke the election under Section 151A of the Workers Compensation Act 1987 (NSW) (“WCA”) as it stood at the relevant time and that the application under Section 151D(2) of the WCA would await the outcome of the leave to revoke application. The hearing proceeded on that basis.
The election in the present case was made by the plaintiff on 17 November 1994 (Exhibit 1, page 29) when the plaintiff elected to claim permanent loss compensation under Sections 66 and 67 of the WCA by accepting payment in relation to that election from the defendant.

Relevant legislation

Section 151A of the WCA relevantly provided as at 1994 as follows:

"(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:
(a) permanent loss compensation in respect of the injury, and
(b) damages in respect of the injury from the employer liable to pay that compensation,

but is required to elect whether to claim that permanent loss compensation or those damages.
...
(5) If:
(a) a person elects to claim permanent loss compensation in respect of an injury, and
(b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the…

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 Daniel v Holroyd City Council

Details

AGLC: Daniel v Holroyd City Council [2016] NSWDC 239
Case: [2016] NSWDC 239
Decision Date: 12 October 2016

CaseChat Overview and Summary

The plaintiff, Daniel, brought a claim against Holroyd City Council, alleging negligence in relation to a workplace injury he suffered. The matter was heard in the District Court of New South Wales. The plaintiff sought leave to revoke an election he had previously made under Section 151A of the Workers Compensation Act 1987 (NSW). This section allows an injured worker to elect to bring a personal injury claim in tort against a third party, rather than relying solely on the workers compensation scheme.

The court was tasked with determining whether the plaintiff could revoke the election he had previously made under Section 151A, and if so, whether leave should be granted for such revocation. The legal issues before the court included the proper interpretation of Section 151A and whether the plaintiff's circumstances justified allowing him to revoke his earlier election. The court had to consider the legislative intent behind Section 151A, the principles of estoppel, and the potential impact of allowing the revocation on the workers compensation scheme.

The court found that the plaintiff's application to revoke his election under Section 151A should be dismissed. The court held that the statutory scheme was intended to provide a clear and exclusive remedy for workers' compensation claims, and allowing revocation of the election would undermine this purpose. The court also found that the plaintiff's arguments did not sufficiently demonstrate any exceptional circumstances that would warrant permitting the revocation. Therefore, the court concluded that the plaintiff's application should be dismissed.

Orders

Orders of the court

The plaintiff’s application be dismissed

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:	Daniel v Holroyd City Council [2016] NSWDC 239
Hearing dates:	30 September 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	The plaintiff’s application be dismissed
Catchwords:	Torts – negligence – work injury claim – leave sought to revoke election under Section 151A of the Workers Compensation Act 1987 (NSW)
Legislation Cited:	Workers Compensation Act 1987 (NSW)
Cases Cited:	New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87
Category:	Procedural and other rulings
Parties:	David Aaron Daniel (Plaintiff) Holroyd City Council (Defendant)
Representation:	Counsel: B Hughes SC and T Meakes (Plaintiff) C Tanner (Defendant) Solicitors: Gorman Jones Lawyers (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2016/00155621