McCarthy v Coles Supermarkets Australia Pty Ltd - [2024] NSWDC 63

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
Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104

Category: Procedural rulings
Parties: Nadia McCarthy (Plaintiff)
Coles Supermarket Australia Pty Ltd (Defendant)
Representation:
Counsel:
Mr R Taylor (for the Plaintiff)
Mr Iain Todd (for the Defendant)
Solicitors:
Withstand Lawyers (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s): 2023/00258967
Publication restriction: Nil

JUDGMENT

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.
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.
The defendant opposes the plaintiff’s application for leave to commence proceedings out of time.

Workers Compensation Act 1987 s 151D

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…

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.

Keep reading for free

Create a free CaseChat account to read McCarthy v Coles Supermarkets Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWDC 63
Decision Date: 14 March 2024

CaseChat Overview and Summary

Nadia McCarthy applied for leave to commence proceedings out of time against Coles Supermarkets Australia Pty Ltd for damages arising from an injury sustained during her employment. The application was heard in the Supreme Court of Queensland. The dispute centered on the statutory three-year limitation period for bringing common law actions for damages under the Workers Compensation Act 1987, and whether the applicant's circumstances justified an extension of that period under section 151D.

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

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.

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 Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104
Category:	Procedural rulings
Parties:	Nadia McCarthy (Plaintiff) Coles Supermarket Australia Pty Ltd (Defendant)
Representation:	Counsel: Mr R Taylor (for the Plaintiff) Mr Iain Todd (for the Defendant) Solicitors: Withstand Lawyers (Plaintiff) Hall and Wilcox (Defendant)
File Number(s):	2023/00258967
Publication restriction:	Nil