Dunstan v El-Gra Engineering Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dunstan v El-Gra Engineering Pty Ltd [2025] NSWPIC 297
APPLICANT:	Dunstan
RESPONDENT:	El-Gra Engineering Pty Ltd
MEMBER:	Adam Halstead
DATE OF DECISION:	25 June 2025
CATCHWORDS:	Workplace Injury Management and Workers Compensation Act 1998; six-month period for making a claim for workers compensation under section 261; claim made more than six months after injury but within three years; claim may be accepted if late claim due to ignorance, mistake or other reasonable cause; onus on applicant to establish state of knowledge; Held – more likely than not applicant decided to pursue other legal rights instead of making a claim for workers compensation; applicant failed to establish with evidence his state of knowledge within the relevant six-month period; award respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Marcus Dunstan, was employed by the respondent, El-Gra Engineering Pty Ltd, as its production manager. While making a delivery for the respondent on 30 May 2020, the applicant was struck by some farm equipment when unloading the freight and was injured. The extent of the injuries received by the applicant is contentious. A claim for lump sum workers compensation was made by the applicant on 24 May 2023 based on 22% whole person impairment, including for injury to his left shoulder. The claim is disputed by the respondent in relation to whether it was made within the allowable time and on the claimed injury to the applicant’s left shoulder.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 18 February 2025, initiating these proceedings.

PROCEDURE BEFORE THE COMMISSION

The matter was before the Commission for arbitration hearing on 16 May 2025. Mr Horan of counsel, instructed by Turner Freeman Lawyers, appeared for the applicant, who was also present. The respondent was represented by Mr Stiles of counsel, instructed by Lee Legal, a solicitor firm. An officer of the respondent’s insurer was present at the hearing.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues for determination by the Commission are whether:
(a) the claim for compensation was made within the period provided by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and, if so
(b) the applicant suffered a left shoulder injury on 30 May 2020.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply lodged by the respondent and attachments (Reply);
(c)    Application to Lodge Additional Documents submitted by the applicant on
26 March 2025 (ALAD-1), and
(d)    Application to Lodge Additional Documents submitted by the applicant on
13 May 2025 (ALAD-2).
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

As a threshold issue, the parties request the Commission determine whether the claim for compensation was made by the applicant during the time provided by s 261 of the 1998 Act, which requires it be made within six months after the date of injury.
The six-month limit can be extended to three years if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”.[1] It is undisputed the applicant made a claim outside the required six-month period but within three years from the date of his injury.
[1] Section 261(4) of the 1998 Act.
The applicant bears the onus of proving, on the balance of probabilities, that his failure to make the claim within the six-month period was due to “ignorance, mistake, … or other reasonable cause”.[2] In Gregson v L & MR Dimasi Pty Ltd[3] (Gregson) Burke J said:[4]
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
[2] Absence from New South Wales is not a relevant consideration in this case.
[3] [2000] NSWCC 47.
[4] At [61].
In Westlake v Sydney Symphony Subscribers Committee,[5] O’Grady DP considered Gregson and said:
“It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to ‘ignorance’ of the matters enunciated by Burke J in Gregson.
There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.”[6]
[5] [2009] NSWWCCPD 12 (Westlake).
[6] Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 [65]-[66].
In Burke v Suncorp Staff Pty Ltd[7] Snell DP confirmed a member’s findings that a worker being aware of workers compensation but not pursuing those entitlements was “a different proposition from being ignorant of the existence of those rights”.
[7] [2021] NSWPICPD 6 at [25].
The applicant made two statements about being injured on 30 May 2020 and that also relate to his disputed claim, initially that of 31 July 2023[8] as well as a supplementary statement dated 17 February 2025.[9]
[8] ARD p 1.
[9] ARD p 7.
It is uncontroversial that when delivering farm machinery for the respondent, the applicant was assisting with unloading while a tractor operated by Howard Williams was lifting the equipment out of the delivery vehicle. During the lifting process a slippage or something similar occurred that resulted in an object striking the applicant causing injury.
In his first statement, the applicant recounted:[10]
“37. Although the injury was reported to my employer I didn’t put though [sic, presumably ‘through’] workers compensation at the time because I thought I wouldn’t need to because I’d get better. I was not expecting a permanent severe injury.
38. Then it was my friendship with my boss Elton that made me reluctant to make a claim.”
[10] ARD p 5.
The applicant had been unable to work in June 2020 due to injury and took sick leave from work. According to his evidence:[11]
“28. …I did not think to claim for my inability to work from a workers compensation insurer because I had sick leave and was getting paid from my employer. I naively assumed I would get better and was just happy to use some leave and get back to work.”
[11] ARD p 8.
At some point after being injured, and during 2020, the applicant decided to obtain legal advice about his injury:[12]
“36. My boss Elton only ever encouraged me to make a claim against the farmer Howard Williams. This is why I initially reached out to a lawyer for advice. I reached out and made an enquiry with Ross Golotta of Golottas Solicitors for advice on trying to recoup the money I was out-of-pocket for associated with the treatment of my work injuries. This was my main goal for getting advice. It was to see if I could be reimbursed by Howard Williams for the money I had to spend on treatment.
37. Because my employer wasn't there with me when I was unloading the products I didn't really think or understand that I had a right to claim workers compensation. My thoughts have been to attempt to claim compensation from the farmer because he was with me when the accident happened. I was on his property, and I believed it was his fault the accident happened. So, I thought that's who should have to pay for my injuries.
38. I had a consultation with Ross Golotta on 26 November 2020. He did not tell me about limitation periods during that conference. I just had to tell him about my accident, and I gave him the farmer, Howard Williams contact details. The focus was on claiming against the farmer and not workers compensation. I did not receive a letter of advice form [sic] Ross Golotta about workers compensation entitlements or limitation periods.”
[12] ARD p 9.
The handwritten file note apparently made by Mr Golotta solicitor is in evidence and is dated 26 November 2020.[13] There are also copies of various emails between the applicant and Mr Golotta in evidence. That is the limit of the evidence available as to what transpired between them, other than from the applicant, because Mr Golotta has since died. Those documents record that the applicant provided an account of his injury to Mr Golotta in the 26 November 2020 conference and that the applicant was advised to arrange a referral to an orthopaedic specialist.[14] The file note in evidence does not record the nature of the claim intended at that time or advice given about that by Mr Golotta to the applicant.
[13] ALAD-2 p 2.
[14] ALAD-2 p 6.
There are several email communications between the applicant and Mr Golotta following their conference that refer to medical documents and related matters. It would seem that Mr Golotta had been instructed to make a claim against the farmer, Mr Williams, because on 14 January 2021 he sent a letter with notice that his firm acted for the applicant and that requested details of Mr Williams’ public liability insurer. In the following months there were further communications between Mr Golotta and the applicant about medical evidence.
On 18 March 2022 Mr Golotta advised the applicant that he should seek advice from another law firm because the barrister intended to be retained was unable to act in the matter on a speculative basis, and in those circumstances, Mr Golotta was unable to continue. The other, recommended, law firm was understood to be able to act on a ‘no win no fee’ basis. In his 21 March 2022 email, the applicant replied to Mr Golotta that:[15]
“(This May 30^th it will have been two years since the accident. Granted it took me 6+ months to do anything about it. I thought it would heal, so I gave it time). It dose [sic] not seem right that my life has changed, and the person that coursed [sic] it has lost nothing. (Even if it was an accident)”
[15] ALAD-2 p 8.
That email is consistent with the applicant’s statement evidence that:[16]
“41. I also recall speaking on the phone with Ross [Golotta] around the time he emailed me to say he wouldn't act any further for me. During that phone call Ross mentioned workers compensation and said that I should claim workers compensation and that if I didn't, he would not act on a no-win no-fee basis in the claim against the farmer. He didn't tell me about limitation periods in that phone call. I didn't want to take Ross up on the suggestion to lodge workers compensation because I thought the farmer should be responsible considering it was the farmer that was involved in my accident. Also I still foolishly thought I could get better and didn't want to jeopardise my career and friendship with Elgra.”
[16] ARD p 9.
There can be little doubt from his evidence that the applicant considered that Mr Williams caused his injuries and should be the party responsible and that he did not want to make a claim on his employer (the respondent). This was confirmed by the applicant when reciting events at the time of retaining his next solicitor:[17]
“46. On 6 June 2022 I had a conference with Turner Freeman Lawyers. I was told I could make a claim for workers compensation benefits. However, I told Turner Freeman Lawyers that I did not want to sue my employer. I was scared that would hurt my employer's business and my relationship with my bosses. I didn't want Elton and Graeme's business to be ruined by me and I did not want to do anything to hurt our relationship. I hoped I could work at some point like I use to and I thought I had a claim against the farmer. I held the farmer responsible for my injuries because he didn't listen to me on the day.
47.    I had used up my sick leave and my boss was still paying me some money when I couldn't work because of my pain. He obviously knew the reason I was off work. They were helping me out, so I didn't want to do anything to jeopardise that. I thought by making a workers compensation claim it would mean that the businesses premiums would go up and I was worried about that increased cost affecting my bosses who I thought of as friends or even family. I wanted to get back to working with them and having a relationship with them as previously.
48.    I was very reluctant to claim workers compensation. I was still employed by Elgra at the time and was being treated well. I thought this would mean suing my employer and taking money from them directly. I didn't want to do this. I was reluctant to do anything which would jeopardise my relationship with my employer or put a financial strain on them. My employer had been good to me so I thought I should be good to them in return.
49.    I did not want to claim compensation from my bosses at Elgra initially because they were being good to me and letting me have time off work for my pain and even helped loan me money for my surgery. Looking back, I was naive and foolish. I had a close relationship with Elton and Graeme before all of this and I thought of Graeme and Elton like family. We had been to family events including weddings together. I always thought we would protect each other and look out for each other – because that was what I was doing for them. I was trying to look out for them by trying to push through my pain and keep working for them and not claim workers compensation. We were friends and I had been part of the family business for so long. I didn't realise all the legal requirements associated with being hurt at work and needing to ensure insurers were put on formal notice of a work injury within certain time frames. Elton and Graeme were aware of my injuries and helping me and I thought that was enough.”
[17] ARD p 10.
The available evidence is consistent with the premise that the applicant did not want to make a claim on the respondent in relation to his injuries. A series of SMS messages, said to be between the applicant and Graeme Robinson (a director of the respondent) are in evidence.[18] It is uncontentious that those communications occurred from 23 to 30 May 2023. In a message on 23 May 2023, the applicant stated:[19]
“… My neck negotiations happened today
My solicitor is saying I have to go workers comp?
I was always going the farmer!!!!!
… dude I don’t want to screw you!!!!!!!!!!
…
It is not what I was after. (But after clearing $13K was way lower than what I have spent on my operation). That’s where they got to in pre-negotiations.
I’m not out to rip anyone off!! If ya premiums go up I’ll help reimburse ya (off the books)
I feel like a …. but is 2/3 out of my hands”
[18] Reply p 41 (note that a proper, legible copy of that page was tendered at hearing).
[19] Reply p 41 at [1].
In a message on 24 May 2023 the applicant stated:[20]
[20] Reply p 41 at [3].
“…
Later I get a phone call from [his solicitor] saying she is going to put a claim in with work cover. (I told her that when I went to you I told her I did not want to go that way!)
She then tells me it will help in 2 ways.
1. It might get rejected. If this happens it helps my case against the farmer. (I don’t see how?!)
2. Work cover accepts the claim.
Then I told her I never wanted to go work cover. (It is in her notes) it was not work that caused the accident it was the farmer.
…”
The applicant goes on to refer to locating legal assistance from Golottas Solicitors and that the firm “didn’t want to take the case unless I go with a workers comp claim”. The applicant then reiterates that it “was NEVER my intention to go that way” [emphasis in original], referring to workers compensation.
It is apparent the applicant considered himself to be an integral part of the respondent’s business:[21]
“50. Additionally, before my accident happened Graeme was away for a period and I had been working as a key member of the team at Elgra, helping Elton out a lot. Elton trusted me and I trusted him and the business to always do the right thing by me. Graeme was away for a while after my accident happened. I do not know how long…”
[21] ARD p 11.
In addition to his close relationship with the directors, which he considered akin to family,[22] the applicant believed his injuries would be temporary:[23]
“51. I have always been optimistic about my recovery. I naively thought everything would heal and get better with time and with surgery. After I was told about the right to lodge a worker's compensation claim, I still didn't want to do it because I knew I had the option too to claim against Howard Williams for my loss and treatment expenses, and this is what I chose to do. I was still employed with Elgra and they knew I was getting advice on claiming compensation from Howard.”
[22] ARD p 10 and Reply p 41 at [5].
[23] ARD p 11.
It is though unclear from the entirety of the applicant’s evidence when it was that he “was told about the right to lodge a worker's compensation claim”. What is clear though is that the applicant was determined to pursue Mr Williams for causing the injuries. That the applicant had knowledge of his option to make a claim for workers compensation but did not do so for reasons associated with the nature of his employment and his relationship with the respondent’s directors is also supported by the timing of his claim:[24]
“39. I left the employ of El-gra Engineering early May 2023 and lodged a workers compensation claim when I left employment.”
[24] ARD p 5.

Consideration and findings

The applicant contends there was ignorance, mistake and/or other reasonable cause for not making a claim for workers compensation within the required six-month period. His evidence is explicit on some matters, such as that he wanted to pursue Mr Williams as a person responsible for his injuries, which is understandable given the circumstances, rather make a workers compensation claim against his employer. It is however distinctly vague on others, specifically the discussions with Mr Golotta and the nature of any advice he may have given to the applicant, and indeed the instructions that were given by the applicant to the solicitor.
It was submitted that the applicant gave a full account to Mr Golotta on 26 November 2020 during their conference. That submission is accepted to the extent the “full account” relates to the circumstances of injury; it is evident from the file note. The submission also suggested that there was no advice given to the applicant about workers compensation rights, including about time limits, because there was no record of such advice in the file note.
The submission is rejected as to the latter. While there is a full account of the incident that cause the applicant’s injury, there is very limited record of what advice was given other than about recommendation to obtain medical evidence. It should not be assumed that because it was not recorded in the file note that other advice was not given, that other discussion did not occur or that the applicant did not give specific instructions to Mr Golotta.

It is evident the applicant did give Mr Golotta instructions to pursue a claim against Mr Williams. The 14 January 2021 letter from the solicitor to Mr Williams is evidence of those instructions, yet that was not recorded in the file note. I am therefore satisfied other matters may also have been discussed between the applicant and Mr Golotta that do not necessarily appear in the file note.
The applicant’s statement and related evidence is consistent, he did not want to act against his employer by way of a workers compensation claim. There were various reasons for his stance, that included the nature of his relationship with the respondent’s directors, but most importantly he was emphatic that Mr Williams was the person liable for his injury. It is evident that he was equally insistent with his instructions to Mr Golotta to pursue Mr Williams rather than make a claim for workers compensation. It is unnecessary to draw any inference on that point, because the evidence is clear by way of the 14 January 2021 Golotta letter to Williams.
It is also relevantly noted that it is not the applicant’s evidence that he did not receive advice about his workers compensation rights from Mr Golotta. The applicant’s evidence is only that he was not given advice about limitation periods at the 26 November 2020 conference. He does not say that workers compensation was not discussed. The issue of whether Mr Golotta may have given advice to the applicant about time limits, but just not during the conference, is also left open.
The applicant must unequivocally establish that he was ignorant of his workers compensation rights within the six-month period provided by s 261 of the 1998 Act. His evidence does not do that. It is vague about the issue and non-specific.
On the claim of mistake, it was submitted the applicant may have understood that informing his employer of the injury was sufficient for the purposes of making a claim and he was therefore he was mistaken about the requirements. His own evidence is to the contrary.
It appears very likely that the applicant had no intention or desire to make a workers compensation claim against the respondent. On this issue, although it is not limited to the following, a selection of his evidence on this point is that he “never wanted to go work cover”, that it “was NEVER my intention to go that way” [emphasis in original] and he was “very reluctant to claim workers compensation”, apparently because he “was always going the farmer”. In relation to his discussions with the solicitor, the applicant “didn't want to take [Mr Golotta] up on the suggestion to lodge workers compensation because [the applicant] thought the farmer should be responsible considering it was the farmer that was involved in [the applicant’s] accident”.
This all is all persuasive evidence that indicates the applicant was aware of the availability of workers compensation rights but chose instead to actively pursue Mr Williams. It was a course that was open to the applicant to pursue, and there is no criticism of him for doing so, it is also consistent with the instructions given to Mr Golotta as confirmed in the 14 January 2021 letter to Mr Williams. I do not accept there was a mistake, the balance of the evidence indicates it was an intentional and informed decision not to make a claim for workers compensation.
As to the submission about the applicant being mistaken about presumed healing from his injury, the provision at s 261 of the 1998 Act refers to ignorance and mistake about workers compensation rights. This was made clear by Burke J in Gregson when reference was made to “rights deriving from the Act and the obligations imposed by it”. Any mistaken belief the applicant may have had about the nature of his injury or related medical issues would only be relevant in as far considering his rights under the 1998 Act, which is not the submission that has been made. Rather the submission is about a mistake on presumed medical recovery, which is not grounds under s 261.
It was further submitted for the applicant there were other reasonable causes for his failure to make a claim within the requisite period that included the nature of his friendship with his employer and that Mr Golotta did not provide appropriate advice on 26 November 2020.
As to the first, there was clearly a very close relationship between the applicant and his employer, but for the reasons outlined already, I consider the applicant took a considered and informed decision to not pursue the respondent at an earlier time preferring a claim against Mr Williams. It seems that only after the claim against Mr Williams for whatever reason stalled,[25] that the applicant decided to revise his approach some years later. That occurred significantly after the six-month period for a workers compensation claim expired.
[25] Reply p 41 at [1].
In relation to the submission the applicant did not obtain appropriate advice from Mr Golotta on 26 November 2020, it is unclear what advice was given because it was not recorded in the file note. There were clearly discussions had, and instructions given, that do not appear in the file note given the events and action that followed, including the 14 January 2021 letter to Mr Williams.
It is more likely than not on the available evidence that the applicant gave instructions to Mr Golotta to the pursue the person the applicant considered responsible, Mr Williams. The applicant’s own evidence weighs in favour of there having been discussion about options, including workers compensation, but that the applicant was adamant for a claim against the “farmer”, that is, Mr Williams. After all, according to the applicant the “focus was on claiming against the farmer and not workers compensation”. There can be little doubt from his evidence that the applicant considered that it was Mr Williams who caused his injuries and that should be held to account. There was also evidence from the applicant that Mr Golotta had discussed workers compensation with him,[26] albeit later, in relation to proceeding further. I consider it to be unlikely the topic had not also been discussed between them earlier.
[26] ARD p 9 at [41].
It should also be recalled that the reason the applicant initially gave for not making a claim for workers compensation was that he assumed he would “get better” rather than there being any indication of not being aware of his right to do so. This further suggests the applicant was aware of his ability to make a workers compensation claim, even before pursuing Williams. It also demonstrates one of the various reasons offered by the applicant for not making an early claim for workers compensation.
The applicant’s evidence does not adequately address his state of knowledge about his workers compensation rights during the relevant period, that is, within the six months following injury on 30 May 2020. It is vague and insufficiently specific in relation to that period. He refers with precision only to not being given advice on time limits on a specific occasion. What else he may have known or been advised on about workers compensation rights is not disclosed or properly addressed.
It is more likely than not on the evidence that is before the Commission that the applicant was aware of workers compensation rights but decided not to pursue those entitlements rather than being ignorant of the existence of those rights or having made some mistake about them.
I do not consider the applicant has established to the required standard that he was ignorant or mistaken about his workers compensation rights or that there was some other reasonable cause for not pursuing those rights. The onus is upon the applicant to prove the state of his knowledge for his claim to be accepted outside the statutory six-month period. He has failed to do so.

SUMMARY

The applicant did not make a claim for compensation within the required period. There is no basis for his claim to be accepted outside that period because he has not established to the required standard ignorance, mistake or other reasonable cause that would allow for that to occur. The must be an award for the respondent accordingly.

[2025] NSWPIC 297

25 June 2025