Kotevski v Esselte Australia Pty Ltd

CITATION:	Kotevski v Esselte Australia P/L [2005] NSWCA 126
HEARING DATE(S):	Tuesday 12 April, 2005
JUDGMENT DATE:	12 April 2005
JUDGMENT OF:	Tobias JA at 1; Young CJ in Eq at 34; Brownie AJA at 35
DECISION:	Appeal dismissed with costs

CATCHWORDS:	WORKERS COMPENSATION - Limitation period - Whether s 15 of Workers Compensation Act applied to deem date of employee's injury for purpose of limitation provision - Scope of words "for the purposes of this Act" in s 15(1)(a) - Whether s 15 relevant to common law rights or only relevant for purposes of determining liability for statutory compensation - Workers Compensation Act 1987 ss 15, 16, 17, 151D(2)
LEGISLATION CITED:	Workers Compensation Act 1987 Workplace Injury Management Act and Workers Compensation Act 1998
CASES CITED:	Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56 University of New England v Larsen-Walsh [2000] NSWCA 363 OP Industries Pty Limited v MMI Workers Compensation (NSW) Limited (1998) 17 NSWCCR 193 National Transport Insurance Limited v Chalker [2005] NSWCA 62
PARTIES:	Boris Kotevski Esselte Australia Pty Limited
FILE NUMBER(S):	CA 40231/04
COUNSEL:	A: J E Rowe / J A Darvall R: W Kearns SC
SOLICITORS:	A: Markahm Geikie Farrugia, Liverpool R: Hicksons, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	6404/02
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ

CA 40231/04
DC 231/01

TOBIAS JA
YOUNG CJ in EQ
BROWNIE A-JA

Tuesday 12 April 2005

BORIS KOTEVSKI v ESSELTE AUSTRALIA PTY LIMITED

Judgment

1 TOBIAS JA: In this matter the appellant sued the respondent for damages in respect of injuries allegedly sustained by him as a result of the nature and conditions under which he was required to work whilst in the respondent's employ between 1988 and August 1999.

2 The appellant commenced his action by the filing of a statement of claim in the District Court on 22 November 2001. By its defence, the respondent relied upon s 151D(2) of the Workers Compensation Act 1987 (the Act) which provided as follows:

"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 more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."

3 The respondent submitted before the primary judge that the appellant was entitled to rely only upon injuries received by him within the three years prior to 22 November 2001, that is, on and after 23 November 1998. After considering the medical evidence and assuming, without actually deciding, that the evidence given on behalf of the appellant was to be preferred, the primary judge held that the injuries complained of by the appellant were in fact sustained prior to 23 November 1998. Accordingly, as the appellant had failed to satisfy his Honour on the balance of probabilities that he had sustained any injury for which he was entitled…