Saad v J Robins & Sons Pty Limited

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.