Saad v J Robins & Sons Pty Limited - [2003] NSWCA 87

CITATION: Saad v J Robins & Sons Pty Limited [2003] NSWCA 87

HEARING DATE(S): 12/03/03

JUDGMENT DATE:
17 April 2003

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Santow JA at 3

DECISION: Appeal allowed.

CATCHWORDS: WORKERS COMPENSATION ACT - election to receive lump sum compensation -leave to revoke earlier election, so as to allow claim for common law damages -further material deterioration in the person's medical condition - WORKERS COMPENSATION ACT - leave to commence common law proceedings out of time - lengthy delay - evidence explaining delay - presumptive prejudice only

LEGISLATION CITED: Motor Accidents Act 1988 (NSW) s52(4)
Workers' Compensation Act 1987 (NSW) s151A(5); s151D; s151E; 151W

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Halt v Wynter (2000) 49 NSWLR 128
Itek Graphix Pty Ltd v Elliot (2001) 54 NSWLR 207
McLean v Sydney Water Corporation ([2001] NSWCA 122
Salido v Nominal Defendant (1993) 32 NSWLR 524
Scaltrito v NRMA Insurance Ltd [2003] NSWCA 63
State of NSW v Taylor (2000) 204 CLR 461

PARTIES :
Hasan Saad (Appellant)
J Robins & Sons Pty Limited (ACN 000 005 005) (Respondent)

FILE NUMBER(S): CA 40278/02

COUNSEL: K Rewell, SC/ J De Berg (Appellant)
R Page (Respondent)

SOLICITORS: Shaw McDonald Pty Ltd (Appellant)
Dexter Healey (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 12316/01

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

CA 40278/02
DC 12316/01

MASON P
HODGSON JA
SANTOW JA
17 APRIL 2003

Hasan SAAD v J ROBINS & SONS PTY LIMITED

Catchwords

WORKERS COMPENSATION ACT

– election to receive lump sum compensation –leave to revoke earlier election, so as to allow claim for common law damages –further material deterioration in the person’s medical condition

– leave to commence common law proceedings out of time – lengthy delay – evidence explaining delay - presumptive prejudice only

Facts

On 29 October 1990 the Appellant injured his right wrist in accident while at work for the Respondent. The injury was later diagnosed as a fracture of the carpal scaphoid bone. The Appellant required surgery on his wrist. This treatment was not successful. In 1996 the Appellant accepted lump sum compensation under the Workers Compensation Act 1987 (NSW). During the period and until 17 June 2001, the Appellant remained employed by the Respondent. The Appellant had continued to consult medical practitioners about his injury following the settlement in 1996. It was clear from the reports that the Appellant continued to suffer disabilities in his right wrist and that his condition worsened over time, with further complications developing in his arm and elbow.

In November 2001, the Appellant filed a Statement of Claim in the District Court seeking common law damages. Prior to filing the Statement of Claim, the Appellant made an application under s151A of the Act for leave to revoke his earlier election to claim lump sum compensation in respect of the injury.

The Judge at first instance dismissed the application for leave to revoke the earlier election, thus barring…

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: [2003] NSWCA 87
Decision Date: 17 April 2003

CaseChat Overview and Summary

The case of *Saad v J Robins & Sons Pty Limited* concerned an appeal to the New South Wales Court of Appeal. The appellant, Mr. Saad, had previously elected to receive lump sum compensation under the *Workers Compensation Act 1987* (NSW) following a workplace injury. He subsequently sought leave to revoke this election to pursue a claim for common law damages, citing a further deterioration in his medical condition. He also sought leave to commence common law proceedings out of time.

The primary legal issues before the Court of Appeal were whether Mr. Saad should be granted leave to revoke his earlier election for lump sum compensation and whether he should be permitted to commence common law proceedings out of time. These issues required the court to consider the principles governing the revocation of such elections and the criteria for granting leave to proceed with common law claims after the statutory time limits had expired, particularly in light of a significant delay and the appellant's worsening medical condition.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in refusing leave. The court applied the principles established in cases concerning the revocation of lump sum elections, noting that such revocation is generally permissible where there has been a significant deterioration in the worker's medical condition and where the employer has not been unduly prejudiced. Regarding the claim out of time, the court acknowledged the lengthy delay but found that the evidence provided by Mr. Saad adequately explained the reasons for this delay. The court also held that any prejudice to the respondent was presumptive only and had not been demonstrated to be substantial. The court ultimately determined that it was in the interests of justice to grant Mr. Saad leave to pursue his common law claim.

Orders

Orders of the court

Appeal allowed.

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.

CITATION:	Saad v J Robins & Sons Pty Limited [2003] NSWCA 87
HEARING DATE(S):	12/03/03
JUDGMENT DATE:	17 April 2003
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Santow JA at 3
DECISION:	Appeal allowed.
CATCHWORDS:	WORKERS COMPENSATION ACT - election to receive lump sum compensation -leave to revoke earlier election, so as to allow claim for common law damages -further material deterioration in the person's medical condition - WORKERS COMPENSATION ACT - leave to commence common law proceedings out of time - lengthy delay - evidence explaining delay - presumptive prejudice only
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW) s52(4) Workers' Compensation Act 1987 (NSW) s151A(5); s151D; s151E; 151W
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Halt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliot (2001) 54 NSWLR 207 McLean v Sydney Water Corporation ([2001] NSWCA 122 Salido v Nominal Defendant (1993) 32 NSWLR 524 Scaltrito v NRMA Insurance Ltd [2003] NSWCA 63 State of NSW v Taylor (2000) 204 CLR 461
PARTIES :	Hasan Saad (Appellant) J Robins & Sons Pty Limited (ACN 000 005 005) (Respondent)
FILE NUMBER(S):	CA 40278/02
COUNSEL:	K Rewell, SC/ J De Berg (Appellant) R Page (Respondent)
SOLICITORS:	Shaw McDonald Pty Ltd (Appellant) Dexter Healey (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12316/01
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ