Salvatore La Malfa v Arnotts Biscuits Ltd - [2016] NSWDC 104

District Court

New South Wales

Medium Neutral Citation: Salvatore La Malfa v Arnotts Biscuits Ltd [2016] NSWDC 104
Hearing dates: 18 – 19 May 2016
Date of orders: 10 June 2016
Decision date: 10 June 2016
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Notice of motion dismissed

Catchwords: TORTS – WORKPLACE INJURY – effect of recovery of damages from employer on payment of compensation – common law and other liability;
LIMITATION PERIOD – leave to revoke election under s 151A – leave to extend time under s 151D of the Workers Compensation Act 1987(NSW)
Legislation Cited: Limitation Act 1969 (NSW) s 26
Workers Compensation Act 1987 (NSW) ss 151A, 151D
Workers Compensation (Benefits) Amendment Act 1989 (NSW)
Workers Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 282, 314
Workers Legislation Further Amendment Act 2001 (NSW)
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Corcoran v Tyre Marketers Australia [2001] NSWCA 300
Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Itek Graphix Pty Limited v Elliott [2001] NSWCA 442
Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR 430
Rutter v The State of New South Wales [2005] NSWCA 231
State of New South Wales v Taylor (2001) 204 CLR 461
Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254
The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Uniting Church in Australia Property Trust (NSW) t/as
Woodfield Retirement Village v Judith Lea [2002] NSWCA 55
Warner v Simpson [1959] 1 QB 97
Category: Procedural and other rulings
Parties: Mr Salvatore La Malfa (Plaintiff)
Arnotts Biscuits Ltd (Defendant)
Representation:
Counsel:
Mr D Stanton (Applicant)
Mr H Halligan (Respondent)
Solicitors:
Sanford Legal (Applicant)
Hicksons Lawyers (Respondent)

File Number(s): 2014/19202
Publication restriction: Nil

Judgment

By statement of claim filed 21 January 2014, the Plaintiff, Mr Salvatore La Malfa brings proceedings for work injury damages in respect of an injury said to have occurred in the course of his employment with the Defendant, Arnotts Biscuits Pty Ltd on 11 July 1989. The statement of claim alleges that on the said date, he was using a tyre lever to remove a rubber tyre from a metal rim using a “Ritch” tyre changer. Whilst applying force against the lever, he asserts that the locking pins on the tyre changer sheared off, and that he lost balance causing him to fall to the ground. [1] The Defence alleged that the Plaintiff is not entitled to recover damages against the Defendant, inter alia, by reason of s 151A of the Workers Compensation Act 1987 (NSW), [2] as was in force prior to 1 January 2012; and also because of s 151D of the same Act. In these circumstances, the Plaintiff moved the Court by motion filed 15 April 2014 for:-

leave to revoke a previous election to receive lump sum compensation orders made on 13 June 1985;

leave to enable commencement of the proceedings (being acknowledged that the commencement was out of time); and

various…

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: [2016] NSWDC 104
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case involved Salvatore La Malfa, the plaintiff, and Arnotts Biscuits Ltd, the defendant, with the dispute centred on the effect of a recovery of damages from the employer on the payment of compensation under common law and other liabilities. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to recover damages from the defendant, which included the recovery of compensation paid by the defendant under the Workers Compensation Act 1987(NSW). The plaintiff also sought leave to revoke an election under section 151A and an extension of time under section 151D of the same Act.

The legal issues that the court had to determine were whether the plaintiff was entitled to recover damages from the defendant for the injuries sustained, and if so, whether the recovery of damages from the defendant affected the payment of compensation under common law and other liabilities. Additionally, the court needed to determine whether the plaintiff was entitled to leave to revoke an election under section 151A and an extension of time under section 151D of the Workers Compensation Act 1987(NSW).

The court found that the plaintiff was not entitled to recover damages from the defendant for the injuries sustained. The court held that the recovery of damages from the defendant did not affect the payment of compensation under common law and other liabilities. Furthermore, the court held that the plaintiff was not entitled to leave to revoke an election under section 151A and an extension of time under section 151D of the Workers Compensation Act 1987(NSW). Consequently, the notice of motion was dismissed.

Orders

Orders of the court

Notice of motion dismissed

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.

Medium Neutral Citation:	Salvatore La Malfa v Arnotts Biscuits Ltd [2016] NSWDC 104
Hearing dates:	18 – 19 May 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Notice of motion dismissed
Catchwords:	TORTS – WORKPLACE INJURY – effect of recovery of damages from employer on payment of compensation – common law and other liability; LIMITATION PERIOD – leave to revoke election under s 151A – leave to extend time under s 151D of the Workers Compensation Act 1987(NSW)
Legislation Cited:	Limitation Act 1969 (NSW) s 26 Workers Compensation Act 1987 (NSW) ss 151A, 151D Workers Compensation (Benefits) Amendment Act 1989 (NSW) Workers Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 282, 314 Workers Legislation Further Amendment Act 2001 (NSW)
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Pty Limited v Elliott [2001] NSWCA 442 Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR 430 Rutter v The State of New South Wales [2005] NSWCA 231 State of New South Wales v Taylor (2001) 204 CLR 461 Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Uniting Church in Australia Property Trust (NSW) t/as Woodfield Retirement Village v Judith Lea [2002] NSWCA 55 Warner v Simpson [1959] 1 QB 97
Category:	Procedural and other rulings
Parties:	Mr Salvatore La Malfa (Plaintiff) Arnotts Biscuits Ltd (Defendant)
Representation:	Counsel: Mr D Stanton (Applicant) Mr H Halligan (Respondent) Solicitors: Sanford Legal (Applicant) Hicksons Lawyers (Respondent)
File Number(s):	2014/19202
Publication restriction:	Nil