District Court
New South Wales
Medium Neutral Citation: Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189 Hearing dates: 15, 16, 21, 22 & 26 August 2013 Decision date: 27 August 2013 Before: Neilson DCJ Decision: I grant leave to the plaintiff to commence proceedings in this Court pursuant to section 151(2) of the Workers Compensation Act 1987 on 9 May 2012
I order that the plaintiff pay the defendant's costs of the notice of motion
Catchwords: CIVIL - Personal injury - Workers compensation - Limitation period - Plaintiff commenced proceedings against defendant for workplace related injuries - Defendant relies upon s 151D in defence to whole of claim - Plaintiff brings notice of motion seeking leave to continue proceedings - Question whether three year limitation period had expired - Whether limitation period runs from accrual of cause of action or date of injury of plaintiff - Question of when plaintiff became aware she was required to seek leave to commence proceedings against former employer at common law - Question of whether injuries suffered were "a result of the nature and conditions of the plaintiff's employment" - Whether type of work which plaintiff did for earlier consecutive employer caused or materially contributed to plaintiff's injury - Whether defendant prejudiced by fact that ability to pursue cross-claim against earlier employer is negated because records either lost or destroyed - Evidence of witnesses as to system of work at defendant's premises - Whether defendant prejudiced by effluxion of time and evidentiary deficiencies - Question of delay since defendant's insurer declined workers compensation claim and plaintiff's commencing a common law action - Issue of conduct of plaintiff's solicitor Legislation Cited: Workers Compensation Act 1987 s 151D
Workplace Injury Management and Workers Compensation Act 1998 s 318Cases Cited: Afarin v Excelior Pty Limited [2013] NSWDC 65
Benton v QBE Workers Compensation (NSW) Ltd [2013] NSWDC 107
Braserio v Zodhope Pty Ltd (Sorby DCJ, unreported, 28 March 2013)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Creevey v Barrois [2005] NSWCA 264
Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244
GIO General Limited v Love [2009] NSWCA 269
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656
Opoku v P & M Quality Smallgoods Pty Limited & Ors [2012] NSWSC 478
Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71
Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253
The Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347
Simpson or Thom v Sinclair [1917] AC127 at 192; (1917) 10 BWCC 220 at 235
Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354Category: Interlocutory applications Parties: Heather Feltham (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)Representation: Mr J Wilson (Plaintiff)
Ms M Dulhunty (Defendant)
Stacks/The Law Firm (Plaintiff)
DLA Piper (Defendant)
File Number(s): 2012/147664
Judgment
On 9 May 2012 the plaintiff, Ms Heather Feltham, filed a statement…
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Details
- Case
- [2013] NSWDC 189
- Decision Date
CaseChat Overview and Summary
In the case of Feltham v Workers Compensation Nominal Insurer, the plaintiff sought to commence proceedings against the defendant for injuries sustained in a workplace incident. The defendant defended the claim by invoking the limitation period under section 151D, arguing that the plaintiff's three-year limitation period had expired. The plaintiff, in response, sought leave to continue the proceedings under section 151(2) of the Workers Compensation Act 1987.
The court needed to determine several legal issues, including whether the limitation period began at the time of the plaintiff's injury or when the cause of action accrued. The court also had to decide when the plaintiff became aware of the need to seek leave to proceed against the former employer at common law. Additionally, the court considered whether the injuries were a result of the nature and conditions of the plaintiff's employment and whether work performed for an earlier consecutive employer contributed to the injury. The court also examined whether the defendant was prejudiced by the plaintiff's inability to pursue a cross-claim against the earlier employer due to lost or destroyed records.
The court held that the limitation period runs from the accrual of the cause of action, which in this case was when the plaintiff became aware of the need to seek leave to proceed against the former employer at common law. The court found that the plaintiff's injuries were a result of the nature and conditions of her employment, and that the work performed for the earlier employer did not cause or materially contribute to the injury. The court further determined that the defendant was not prejudiced by the inability to pursue a cross-claim against the earlier employer due to lost or destroyed records. The court granted leave to the plaintiff to commence proceedings in this Court on 9 May 2012 and ordered that the plaintiff pay the defendant's costs of the notice of motion.
The court needed to determine several legal issues, including whether the limitation period began at the time of the plaintiff's injury or when the cause of action accrued. The court also had to decide when the plaintiff became aware of the need to seek leave to proceed against the former employer at common law. Additionally, the court considered whether the injuries were a result of the nature and conditions of the plaintiff's employment and whether work performed for an earlier consecutive employer contributed to the injury. The court also examined whether the defendant was prejudiced by the plaintiff's inability to pursue a cross-claim against the earlier employer due to lost or destroyed records.
The court held that the limitation period runs from the accrual of the cause of action, which in this case was when the plaintiff became aware of the need to seek leave to proceed against the former employer at common law. The court found that the plaintiff's injuries were a result of the nature and conditions of her employment, and that the work performed for the earlier employer did not cause or materially contribute to the injury. The court further determined that the defendant was not prejudiced by the inability to pursue a cross-claim against the earlier employer due to lost or destroyed records. The court granted leave to the plaintiff to commence proceedings in this Court on 9 May 2012 and ordered that the plaintiff pay the defendant's costs of the notice of motion.
Orders
Orders of the court
I grant leave to the plaintiff to commence proceedings in this Court pursuant to section 151(2) of the Workers Compensation Act 1987 on 9 May 2012
I order that the plaintiff pay the defendant's costs of the notice of motion
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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