Fugar v Western Earthmoving Pty Ltd - [2019] NSWDC 395

District Court

New South Wales

Medium Neutral Citation: Fugar v Western Earthmoving Pty Ltd [2019] NSWDC 395
Hearing dates: 2 August 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to commence and maintain the present proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff’s cause of action arose between October 2011 and 19 October 2015, such leave is extended to 15 April 2019, the date on which the plaintiff’s statement of claim was filed;

2. The defendant should pay the plaintiff’s costs of the notice of motion;
3. Liberty to apply on 3 days’ notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS – work injury damages – claim of bullying and harassment causing the plaintiff to incur severe psychological injury and consequent work incapacity – grant leave to maintain out of time proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW)
Legislation Cited: Workers Compensation Act 1987 (NSW), s 151D, s 151DA
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Gower v State of New South Wales [2018] NSWCA 132
Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Category: Procedural and other rulings
Parties: Leanne Maree Fugar (Plaintiff)
Western Earthmoving Pty Ltd (Defendant)
Representation:
Counsel:
Mr H Marshall SC with Mr P Menary (Plaintiff)
Mr I Todd (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
TurksLegal (Defendant)

File Number(s): 2019/117252
Publication restriction: None

Judgment

Notice of motion

The plaintiff, Ms Leanne Fugar, brings this notice of motion filed on 29 April 2019 pursuant to s 151D of the Workers Compensation Act 1987 (NSW). She seeks leave to maintain the proceedings although they were filed out of time.

The substantive proceedings and the procedural context

The plaintiff’s substantive claim, which was filed on 15 April 2019, seeks damages for significant psychological injuries which she claims are due to alleged breach of duty of care on the part of her employer, the defendant, Western Earthmoving Pty Ltd. The plaintiff claims that those injuries occurred due to the nature and conditions of her employment with the defendant between October 2011 and 19 October 2015.
The defendant denies that it employed the plaintiff. However, it admits that it paid the plaintiff to work as a personal carer for Mr Walter Ragg, now deceased, the founder of the defendant company. Before his death, and whilst the plaintiff worked as his carer, the deceased had dementia and exhibited challenging behaviours. The defendant admits the plaintiff has incurred…

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 Fugar v Western Earthmoving Pty Ltd

Details

AGLC: Fugar v Western Earthmoving Pty Ltd [2019] NSWDC 395
Case: [2019] NSWDC 395
Decision Date: 09 August 2019

CaseChat Overview and Summary

In the case of Fugar v Western Earthmoving Pty Ltd, the plaintiff sought to bring a claim for damages arising from injuries sustained while employed by the defendant. The injuries were allegedly the result of bullying and harassment by a supervisor, leading to severe psychological harm and consequent incapacity to work. The dispute reached the court to determine whether the plaintiff's claim was time-barred under the statutory limitation period, and if not, whether the court should exercise its discretion to allow the out-of-time proceedings under section 151D of the Workers Compensation Act 1987 (NSW).

The legal issues before the court were whether the plaintiff's cause of action was statute-barred under the standard limitation period for work injury claims and, if so, whether the court should exercise its discretion to permit the late filing of the proceedings under the provisions of section 151D. The court had to consider the nature and extent of the psychological injury, the delay in bringing the claim, and any mitigating circumstances that might justify extending the limitation period.

The court found that the plaintiff's cause of action had indeed accrued between October 2011 and 19 October 2015, placing it outside the standard three-year limitation period. However, the court was satisfied that the plaintiff had exercised reasonable diligence in bringing the claim and that the delay was not attributable to any fault on their part. The court further considered the severe psychological harm suffered by the plaintiff and the circumstances surrounding the delay, which included the plaintiff's inability to recognise the full extent of their injuries and the need for psychiatric treatment. The court concluded that the public policy considerations underpinning section 151D warranted the granting of leave to maintain the proceedings.

In granting the leave, the court also ordered the defendant to pay the plaintiff's costs of the notice of motion and provided liberty to apply for further or other orders on three days' notice. This decision underscores the importance of considering individual circumstances and the impact of psychological injuries in determining whether to permit out-of-time claims under workers compensation legislation.

Orders

Orders of the court

1. Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to commence and maintain the present proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff’s cause of action arose between October 2011 and 19 October 2015, such leave is extended to 15 April 2019, the date on which the plaintiff’s statement of claim was filed;

2. The defendant should pay the plaintiff’s costs of the notice of motion;

3. Liberty to apply on 3 days’ notice if further or other orders are required.

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:	Fugar v Western Earthmoving Pty Ltd [2019] NSWDC 395
Hearing dates:	2 August 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to commence and maintain the present proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff’s cause of action arose between October 2011 and 19 October 2015, such leave is extended to 15 April 2019, the date on which the plaintiff’s statement of claim was filed; 2. The defendant should pay the plaintiff’s costs of the notice of motion; 3. Liberty to apply on 3 days’ notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS – work injury damages – claim of bullying and harassment causing the plaintiff to incur severe psychological injury and consequent work incapacity – grant leave to maintain out of time proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW)
Legislation Cited:	Workers Compensation Act 1987 (NSW), s 151D, s 151DA Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Gower v State of New South Wales [2018] NSWCA 132 Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Sydney City Council v Zegarac (1998) 43 NSWLR 195
Category:	Procedural and other rulings
Parties:	Leanne Maree Fugar (Plaintiff) Western Earthmoving Pty Ltd (Defendant)
Representation:	Counsel: Mr H Marshall SC with Mr P Menary (Plaintiff) Mr I Todd (Defendant) Solicitors: Turner Freeman (Plaintiff) TurksLegal (Defendant)
File Number(s):	2019/117252
Publication restriction:	None