Kennards Hire Pty Ltd v Koufu - [2005] NSWCA 413

CITATION:
Kennards Hire Pty Ltd v Koufu [2005] NSWCA 413

HEARING DATE(S):
1 November 2005

JUDGMENT DATE:

1 November 2005

JUDGMENT OF:
Mason P at 1; Tobias JA at 2; Brownie AJA at 33

DECISION:
Appeal dismissed with costs

CATCHWORDS:
WORKERS’ COMPENSATION – Claim for common law damages – Whether worker entitled to commence within 6 months of injury – Legislative objective of delaying commencement of proceedings – Exception where liability denied – Whether employer had denied liability – Whether denial “unequivocal” – Workers’ Compensation Act 1987 s 151C

LEGISLATION CITED:
Motor Accidents Act 1988
Workers Compensation Act 1987

CASES CITED:
Lampson (Australia) Pty Limited v Mackay [2004] NSWCA 152
Sydney Ports Corporation v Collins; National Direct Imaging Pty Limited v Lamy (2003) 56 NSWLR 232
Taylor v Francoif (1990) 19 NSWLR 444

PARTIES:
Kennards Hire Pty Limited
Michael Koufu

FILE NUMBER(S):
CA 40732/04

COUNSEL:
A: M Elkaim SC / M Gollam
R: R Turner SC / S Walsh

SOLICITORS:
A: Lander & Rogers, Sydney
R: O'Neill Marengo, Sydney

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 13171/01

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

CA 40732/04

MASON P
TOBIAS JA
BROWNIE AJA
Tuesday 1 November 2005

KENNARDS HIRE PTY LIMITED v MICHAEL KOUFU

Judgment

1 MASON P: I agree with Tobias JA.

2 TOBIAS JA: At all material times the respondent was employed by the appellant. On 31 August 2001 he was injured in the course of that employment. He apparently made a claim for workers’ compensation which was accepted by the appellant’s workers’ compensation insurer, NRMA Workers’ Compensation (New South Wales) No 2 Pty Limited (the insurer), in a letter from the insurer to the respondent dated 18 September 2001. The author of that letter, Mr James Murphy, was described in the letter on the insurer’s letterhead as a Senior Claims Officer.

3 On or about 19 November 2001 the respondent instructed Ms Tracey Lynn O’Neill of O’Neill Marengo, Lawyers, to act on his behalf in relation to the accident. She appreciated that because of imminent legislative amendments to the Workers’ Compensation Act 1987 (the Act) governing modified common law damages which were to come into force on 27 November 2001, any proceedings under the existing law required the filing of an ordinary statement of claim on or before 26 November 2001.

4 Ms O’Neill was also aware of the terms of the then s 151C of the Act which relevantly provided as follows:

"(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

(2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs:

(a) the employer denies all liability in respect of the injury,

(b) the employer admits partial liability in respect of the…

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: [2005] NSWCA 413
Decision Date: 1 November 2005

CaseChat Overview and Summary

Kennards Hire Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the District Court which had allowed Mr Koufu to commence proceedings for common law damages for a workplace injury. The central dispute concerned whether Mr Koufu was entitled to commence his claim within the six-month period prescribed by section 151C of the *Workers’ Compensation Act 1987* (NSW), which generally delays the commencement of such proceedings.

The primary legal issue before the Court of Appeal was whether Kennards Hire had unequivocally denied liability for Mr Koufu’s injury, thereby creating an exception to the statutory six-month waiting period. This required the court to consider the nature and effect of the communications between the parties and to determine if they amounted to a clear and unambiguous rejection of responsibility for the injury sustained by Mr Koufu.

The Court of Appeal affirmed the District Court's finding that Kennards Hire had indeed denied liability. The court reasoned that the legislative objective of section 151C is to encourage early settlement and avoid premature litigation, but this objective is overridden where an employer's conduct demonstrates a clear refusal to accept responsibility. The communications from Kennards Hire were found to be sufficiently unequivocal to satisfy the exception, meaning Mr Koufu was not bound by the usual six-month waiting period. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kennards Hire Pty Ltd v Koufu [2005] NSWCA 413
HEARING DATE(S):	1 November 2005
JUDGMENT DATE:	1 November 2005
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Brownie AJA at 33
DECISION:	Appeal dismissed with costs

CATCHWORDS:	WORKERS’ COMPENSATION – Claim for common law damages – Whether worker entitled to commence within 6 months of injury – Legislative objective of delaying commencement of proceedings – Exception where liability denied – Whether employer had denied liability – Whether denial “unequivocal” – Workers’ Compensation Act 1987 s 151C
LEGISLATION CITED:	Motor Accidents Act 1988 Workers Compensation Act 1987
CASES CITED:	Lampson (Australia) Pty Limited v Mackay [2004] NSWCA 152 Sydney Ports Corporation v Collins; National Direct Imaging Pty Limited v Lamy (2003) 56 NSWLR 232 Taylor v Francoif (1990) 19 NSWLR 444
PARTIES:	Kennards Hire Pty Limited Michael Koufu
FILE NUMBER(S):	CA 40732/04
COUNSEL:	A: M Elkaim SC / M Gollam R: R Turner SC / S Walsh
SOLICITORS:	A: Lander & Rogers, Sydney R: O'Neill Marengo, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13171/01
LOWER COURT JUDICIAL OFFICER:	O'Toole DCJ