District Court
New South Wales
- Amendment notes
Medium Neutral Citation: McCarthy v Coles Supermarkets Australia Pty Ltd [2024] NSWDC 63 Hearing dates: 29 February 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Civil Before: Cole DCJ Decision: (1) Nadia McCarthy has leave, pursuant to s 151D of the Workers Compensation Act 1987, to commence proceedings in this Court for damages against Coles Supermarkets Australia Limited more than three years after the date on which she was allegedly injured on 1 April 2016.
(2) The time for the filing of the Statement of Claim is extended to 15 August 2023.
(3) The costs of the application for leave will be costs in the cause.
Catchwords: WORKERS COMPENSATION — Common law remedies — Three-year time limit after date of injury to commence proceedings for damages – application under s 151D Workers Compensation Act 1987 for leave to commence proceedings out of time.
Legislation Cited: Workers Compensation Act 1987 (NSW)
Workplace Injury Management Act 1998 (NSW)
Cases Cited: Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Category: Procedural rulings Parties: Nadia McCarthy (Plaintiff)
Coles Supermarket Australia Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
Mr R Taylor (for the Plaintiff)
Mr Iain Todd (for the Defendant)
Withstand Lawyers (Plaintiff)
Hall and Wilcox (Defendant)
File Number(s): 2023/00258967 Publication restriction: Nil
JUDGMENT
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By Notice of Motion filed on 13 December 2023, Ms McCarthy (‘the plaintiff’) has applied for leave, under s 151D of the Workers Compensation Act 1987, to commence proceedings in negligence, seeking damages against Coles Supermarkets Australia Limited (‘the defendant’), more than three years after the date of the incident which would form the basis for the proceedings. A pre-filing statement was served on 26 April 2023 and the Statement of Claim in the matter was filed on 15 August 2023.
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The plaintiff was employed by the defendant in a supermarket in Queanbeyan, New South Wales when, on 1 April 2016, at about 9:45pm, it is alleged that it was necessary for her to walk through an area in which a cleaner had poured water containing detergent and, possibly, other cleaning chemicals. The plaintiff alleges that she slipped and fell whilst walking through the area, injuring her left hip and her lower back.
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The defendant opposes the plaintiff’s application for leave to commence proceedings out of time.
Workers Compensation Act 1987 s 151D
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The Workers Compensation Act 1987 provides, in s 151D and s 151DA:
151D Time limit for commencement of court proceedings against employer for damages
(1) (Repealed)
(2) 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 Limitation Act 1969 does not…
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- Case
- [2024] NSWDC 63
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicant's case met the criteria for an extension of time as outlined in section 151D. This included whether there was a sufficient reason for the delay, whether there was a real prospect of the applicant succeeding on the merits, and whether the applicant had acted with diligence in pursuing their claim. The applicant argued that her delay was due to a combination of factors, including emotional trauma, lack of understanding of her legal rights, and ongoing medical treatment. The respondent contended that the application should be dismissed as the applicant had not demonstrated sufficient reason for the delay, nor had she acted with requisite diligence.
The court found that the applicant's emotional trauma and lack of understanding of her legal rights constituted sufficient reason for the delay. The court also found that the applicant had a real prospect of success on the merits and had acted with diligence in pursuing her claim. The court granted the application for leave to commence proceedings out of time and extended the time for filing the Statement of Claim to 15 August 2023. The court also ordered that the costs of the application for leave would be costs in the cause.
Orders
Orders of the court
(1) Nadia McCarthy has leave, pursuant to s 151D of the Workers Compensation Act 1987, to commence proceedings in this Court for damages against Coles Supermarkets Australia Limited more than three years after the date on which she was allegedly injured on 1 April 2016.
(2) The time for the filing of the Statement of Claim is extended to 15 August 2023.
(3) The costs of the application for leave will be costs in the cause.
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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