Pearce v Integra Coal Operations Pty Ltd - [2014] NSWSC 561

Supreme Court

New South Wales

Medium Neutral Citation: Pearce v Integra Coal Operations Pty Ltd [2014] NSWSC 561
Hearing dates: 2 April 2014
Decision date: 13 May 2014
Before: Rothman J
Decision:
1. Pursuant to s 151D of the Workers Compensation Act 1987 leave granted to the plaintiff, Michael Jason Pearce, to commence court proceedings for damages, in respect of the injury said to have been suffered by Mr Pearce on or about 11 October 2006, by relying on the Statement of Claim (or any subsequently allowed pleading) filed 24 April 2013;The aforesaid extension of time operates nunc pro tunc;
2. The plaintiff shall pay the defendants costs of and incidental to the motion for extension of time;
3. The parties have liberty to apply on two days' notice for any different or special order for costs.

Catchwords: LIMITATION OF ACTIONS - Workers Compensation Act 1987, s 151D - Extension of period by leave of court - Exercise of discretion - justice of the case - lack of prejudice to defendant or effect on fair trial - plaintiff's solicitor's professional and personal circumstances causes delay, together with necessity to brief alternate counsel - stabilisation of injury or symptoms
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Category: Interlocutory applications
Parties: Michael Jason Pearce (Plaintiff)
Integra Coal Operations Pty Ltd (Defendant)
Representation: Counsel:
L. T. Grey (Plaintiff)
J. Gleeson SC/ with P. Menary (Defendant)
Solicitors:
Ross Pfenningwerth (Plaintiff)
Norton Rose Fullbright (Defendant)

File Number(s): 2013/126419
Publication restriction: None

Judgment

HIS HONOUR: The interlocutory issue with which the Court must deal is the question of an extension of time. The substantive proceedings concern an allegation that the plaintiff, Mr Pearce, suffered a work injury whilst employed at an underground colliery for the defendant, Integra Coal Operations Pty Ltd (Integra). The incident occurred on 11 October 2006. A Statement of Claim was filed on 24 April 2013. It is necessary to deal with the circumstances leading up to the filing of the Statement of Claim.

Facts

The incident which it is said gave rise to the injury is that the plaintiff injured his back, which was caused by a requirement to lift heavy steel bars attached to chains, forming part of the coalface cutting machinery. The circumstances of that lifting are irrelevant for the interlocutory purposes. The weight of the bars and chains are, it is alleged, greater than any one person could be expected to lift in safety.

Particulars have been filed in accordance with the Uniform Civil Procedure Rules 2005, as has an expert report. The damages claimed are significant, if there were liability.

Prior to the date of the injury, Mr Pearce suffered some problems with his back, seemingly as a result of the requirement to wear an equipment belt weighing approximately 15 kilograms.…

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.

Continue reading Pearce v Integra Coal Operations Pty Ltd

Details

AGLC: Pearce v Integra Coal Operations Pty Ltd [2014] NSWSC 561
Case: [2014] NSWSC 561
Decision Date: 13 May 2014

CaseChat Overview and Summary

In the case of Pearce v Integra Coal Operations Pty Ltd, the applicant sought an extension of time for the limitation period under the Workers Compensation Act 1987 to bring an action for damages against the respondent. The applicant, who had previously suffered injuries, was unable to commence proceedings within the statutory timeframe due to delays caused by his solicitor's personal and professional circumstances and the need to brief alternate counsel. The application for an extension of time hinged on the applicant's argument that the delay was justified by the stabilisation of his injury or symptoms, and that no prejudice would result to the respondent or affect the fairness of the trial.

The court had to determine whether the applicant had satisfied the criteria for an extension of time under section 151D of the Workers Compensation Act 1987. The primary considerations were the justice of the case, the lack of prejudice to the respondent, and whether the applicant's circumstances warranted an extension. The court also examined the stabilisation of the applicant's injury or symptoms and the necessity for briefing alternate counsel. The court held that the applicant had demonstrated that the delay was not due to any fault or neglect on his part and that the extension of time was just and equitable. The court found that the respondent would not be prejudiced and that the applicant's injury or symptoms had stabilised, which justified the extension of time.

The court granted the applicant's application for an extension of time, finding that the applicant had met the criteria under section 151D of the Workers Compensation Act 1987. The court emphasised the importance of the applicant's circumstances, the stabilisation of his injury or symptoms, and the lack of prejudice to the respondent. The court's decision allowed the applicant to proceed with his action for damages against the respondent within the extended period. The court's reasoning and outcome highlight the importance of considering the justice of the case and the individual circumstances of the applicant when determining whether to grant an extension of time under the Workers Compensation Act 1987.

Orders