Fugar v Western Earthmoving Pty Ltd

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.