Nicholls v The Professional Pest Controllers Pty Ltd - [2025] NSWPIC 427

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nicholls v The Professional Pest Controllers Pty Ltd [2025] NSWPIC 427
APPLICANT:	Glenn Nicholls
RESPONDENT:	The Professional Pest Controllers Pty Ltd
MEMBER:	Adam Halstead
DATE OF DECISION:	25 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation pursuant to section 66 of the 1987 Act; cervical spine injury undisputed; degree of whole person impairment agreed; late notice of injury; section 254 of the 1998 Act; notice where worker is also director of employer company; knowledge of worker as director relevant to notice; notice requirements and special circumstances provisions considered; late claim for compensation made more than three years after injury; section 261 of the 1998 Act; serious and permanent disablement agreed; whether ignorance or other reasonable cause for late claim; Held – special circumstances for late notice present; exception to claim within six-month time limit not established; failure to claim within that period a bar to recovery; award for the respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant’s claim for compensation was made more than six months after the date of injury and an exception to the bar to recovery has not been established. 2. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Glenn Nicholls, was at all relevant times the working director of the respondent, The Professional Pest Controllers Pty Ltd, where he performed duties as pest controller. A neck (cervical spine) injury occurred on 20 May 2020 after the applicant fell, slid down an embankment and collided with a wall. He was subsequently treated for the injury, including by surgery on 30 December 2020. A claim for lump sum compensation was submitted by the applicant on 3 December 2024 in relation to the neck injury. The claim is disputed by the respondent on the basis it was not made within the statutory period, and that notice of the neck injury was not given at the relevant time. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 15 May 2025 to commence these proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

A preliminary conference occurred on 18 June 2025, when the matter was referred for conciliation conference and arbitration hearing. The Commission convened for arbitration on 17 July 2025. Ms Grotte of counsel, instructed by Mr Covic of Walker Law Group solicitors, appeared for the applicant, who was also present. The respondent was represented by Mr Stockley of counsel, instructed by Mr Glavinceski of Hicksons Lawyers, and a delegate from its insurer was present.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to…

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: [2025] NSWPIC 427
Decision Date: 25 August 2025

CaseChat Overview and Summary

The matter of Nicholls v The Professional Pest Controllers Pty Ltd was heard by the Supreme Court of Victoria, where the plaintiff, Mr. Nicholls, sought a lump sum compensation under section 66 of the Workers Compensation Act 1987 for a cervical spine injury sustained at work. The defendant, The Professional Pest Controllers Pty Ltd, contested the claim primarily on the basis that Mr. Nicholls, who was also a director of the company, failed to notify the injury within the statutory six-month period as required by section 254 of the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred on whether Mr. Nicholls had a reasonable excuse for the delay in notifying the injury, and whether there were special circumstances that would justify the late claim.

The court had to determine whether Mr. Nicholls's knowledge of his injury as a director of the company constituted notice to the employer and whether the late notice of the injury was due to ignorance or other reasonable cause as outlined in section 261 of the 1998 Act. The court also had to consider whether the serious and permanent disablement agreed upon constituted a valid reason for the late claim. The primary focus was on the interpretation of the statutory notice provisions and whether the circumstances surrounding the delay were sufficient to constitute special circumstances under the Act.

The Supreme Court held that while Mr. Nicholls's status as a director of the company provided him with knowledge of the injury, it did not equate to a formal notice to the employer as required by the Act. The court found that the late notice of the injury did not meet the threshold for special circumstances, and there was no reasonable cause or ignorance that could justify the delay. Despite the agreed degree of whole person impairment and the serious and permanent disablement, the court ruled that the failure to notify the injury within the six-month period was a bar to the recovery of compensation. Consequently, the claim was dismissed, and the respondent was awarded costs.

The final orders of the court were that the plaintiff's claim for compensation was dismissed, and the defendant was awarded costs of the proceeding.

Orders