CITATION: Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 HEARING DATE(S): 12/03/03 JUDGMENT DATE:
17 April 2003JUDGMENT 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; 151WCASES 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 461PARTIES :
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 12316/0117 APRIL 2003MASON P
HODGSON JA
SANTOW JA
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
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…
Keep reading for free
Create a free CaseChat account to read Saad v J Robins & Sons Pty Limited 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2003] NSWCA 87
- Decision Date
CaseChat Overview and Summary
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.