Franco v Workers Compensation Nominal Insurer - [2020] NSWSC 915

Supreme Court

New South Wales

Medium Neutral Citation: Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915
Hearing dates: 10 June 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), leave is granted to the plaintiff to commence her claim for work injury damages;
(2) A declaration that Subdiv 2, Div 3, Pt 17 of the Workers Compensation Regulation 2016 (NSW) does not apply to the costs of the motion pursuant to the effect of cl 98 of the Regulation;
(3) The defendant is to pay the plaintiff’s costs of and incidental to the motion;
(4) The substantive hearing remains listed for hearing on 3 August 2020 with an estimate of three days.

Catchwords:
LIMITATION OF ACTIONS – Personal Injury – workplace injury – s 151D of Workers’ Compensation Act 1987 – whether significant forensic disadvantage – plaintiff is exception to general rule and should be granted leave.

Legislation Cited:
Workers Compensation Act 1987 (NSW), ss 151, 151A, 151C, 151D, 151DA, 151E, 151H, Pt 5 Div 2 & 3
Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3 Subdiv 2
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 313, 319, Pt 7

Cases Cited:
Ballantyne v Workcover Authority of NSW (2007) 5 DDCR 97; [2007] NSWCA 239
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Christakos Transport Pty Ltd (in Liq) v Croft [2005] NSWCA 472
Delta Pty Ltd v Whitefield [2004] NSWCA 220
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143
Itek Graphix Pty Limited v Elliott (2001) 54 NSWLR 207; [2001] NSWCA 442
Jones v Bellgrove Properties Ltd (1949) 2 KB 700
McLean v Sydney Water Corporation [2001] NSWCA 122
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1; [1976] HCA 20
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62
RB Policies at Lloyd’s v Butler (1950) 1 KB 76
Re Coldham; ex parte Brideson (1989) 166 CLR 338; [1989] HCA 2
Rutter v New South Wales [2005] NSWCA 231
Salido v Nominal Defendant (1993) 32 NSWLR 524
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21

Category: Procedural and other rulings
Parties: Marina Franco (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)
Representation:
Counsel:
R De Meyrick & J Mrsic (Plaintiff)
S Kettle (Defendant)
Solicitors:
Grieve Watson Kelly Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2019/210260

Judgment

HIS HONOUR: The plaintiff, Marina Franco, seeks leave of the Court to commence proceedings later than three years after the date on which the injury relevant to the proceedings occurred. The time limit for the commencement of court proceedings against an employer,…

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: [2020] NSWSC 915
Decision Date: 17 July 2020

CaseChat Overview and Summary

Franco, a former employee, brought a claim against the Workers Compensation Nominal Insurer for injuries sustained during his employment. The dispute centred on whether the statutory limitation period under section 151D of the Workers’ Compensation Act 1987 had expired, barring his claim. The case was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the plaintiff, Franco, should be granted leave to bring his claim outside the statutory limitation period. The court needed to determine if there were exceptional circumstances that warranted an exception to the general rule, such as a significant forensic disadvantage experienced by Franco.

The court examined the statutory framework and case law to assess whether Franco's situation constituted a significant forensic disadvantage. It considered factors such as the delay in bringing the claim, the reasons for the delay, and the impact of this delay on Franco's ability to present his case. The court also took into account the provisions of section 151D, which provides that a claim for damages must be brought within three years of the injury occurring. The court held that Franco's circumstances did indeed present a significant forensic disadvantage, which justified an exception to the limitation period. Consequently, the court found that Franco was an exception to the general rule and should be granted leave to bring his claim.

In light of its findings, the court ruled in favour of Franco, granting him leave to proceed with his claim despite the statutory limitation period having expired. The court emphasised that this decision was based on the exceptional nature of Franco's circumstances, which warranted an exception to the general rule. This outcome ensures that justice is served by allowing Franco to pursue his claim, taking into account the significant forensic disadvantage he faced.

Orders