McCormick v Mt Pleasant Stud Farm Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

McCormick v Mt Pleasant Stud Farm Pty Ltd [2021] NSWDC 415

Hearing dates:

17 August 2021

Date of orders:

19 August 2021

Decision date:

19 August 2021

Jurisdiction:

Civil

Before:

Sidis ADCJ

Decision:

See paragraph 49

Catchwords:

WORK ACCIDENT – leave to proceed out of time – work injury damages – point at which notice of intention to claim work injury damages should be made – application for leave to commence claim where statement of claim filed more than 6 years after work place injury

Legislation Cited:

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act1998 (NSW)

Cases Cited:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Gower v State of New South Wales [2018] NSWCA 132

Holt v Wynter [2000] NSWCA 128; (2000) NSWLR 128

Itex Graphix Pty Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207

Salido v The Nominal Defendant (1993) 32 NSWLR 524

South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477

Category:

Procedural rulings

Parties:

Mr S McCormick (applicant)
Mt Pleasant Stud Farm Pty Ltd (respondent)

Representation:

Counsel:
Mr W Fitzsimmons SC and Ms S Warren for the applicant
Ms T Berberian and Mr R Perla for the respondent

Solicitors:
Lough & Wells Lawyers for the applicant
Leigh Virtue and Associates for the respondent

File Number(s):

2021/00015061

Judgment

1. Sean McCormick, the applicant in this matter, was injured when he fell from a horse in the course of his employment as farm manager by the respondent, Mount Pleasant Stud Farm Pty Limited.

2. The accident occurred on 29 December 2014. The applicant suffered injuries to his neck, back and right shoulder. Ongoing treatment of the injuries included surgery to repair the right rotator cuff and biceps and ultrasound injections in an attempt to relieve shoulder and neck pain.

3. The applicant developed gastrointestinal symptoms that medical opinion related to the use of pain relieving medication relied upon by the applicant. A gastroscopy was performed on 19 October 2018.

4. Medical records indicate that the applicant continued to suffer from significant pain and discomfort from the time of the accident to the date of the hearing of his application.

5. The applicant lodged a workers compensation claim on 30 December 2014. He took a holiday but upon his return to work he was certified unfit to perform all of his duties. His employment was terminated on 13 February 2015. He has not, to date, returned to work.

6. S 151D of the Workers Compensation Act 1987 required that a claim in respect of these injuries be made within 3 years of the date of injury. A statement of claim was filed on the applicant’s behalf on 18 January 2021 which, disregarding the periods of suspension provided for in the workers compensation legislation, was more than 6 years from the date of injury and 3 years out of time.

7. The application for leave to bring proceedings out of time…