Service v MacDougall - [2011] NSWDC 66

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Service v MacDougall [2011] NSWDC 66
Hearing dates: 31 May 2011 & 1 June 2011
Decision date: 01 June 2011
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
I grant leave to the Plaintiff to commence proceedings pursuant to section 151D(2) of the Workers Compensation Act 1988 by filing a Statement of Claim on 2 February 2011
The Defendant's Notice of Motion filed on 20 April 2011 is dismissed
I order that the costs of each Notice of Motion be costs in the cause

Catchwords:
LIMITATION OF ACTIONS - Extension of period - By leave of Court

WORKERS COMPENSATION - Alternative Rights Against Employer - Work Injury Damages - Extension of Period
Statutory Interpretation - Workers Compensation Legislation
Legislation Cited: Workers Compensation Act 1987 s 151D(2)
Workplace Injury Management and Workers Compensation Act 1998 s 282(1)
Cases Cited: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Tang v PM Industries Pty Ltd (Master Greenwood, 31 October 1996)
Smith v Mann (1932) 47 CLR 426
Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354
Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326
Category: Interlocutory applications
Parties: Callum Robert Service (Plaintiff)
Garry MacDougall (Defendant)
Representation: Mr B G McManamey (Plaintiff)
Mr P M Morris SC (Defendant)
Stacks Goudkamp (Plaintiff)
Moray and Agnew (Defendant)

File Number(s): 2011/34436

Headnote

Application for extension of statutory limitation period. P was injured on 5 March 2001. He was a resident manager in D’s hotel. After the close of business armed offenders broke into the hotel in order to commit robbery. They knocked on P’s residence’s door. P, thinking it was another resident manager, answered the knock at the door and was assaulted with a firearm, marched at gunpoint to another part of the premises, used as a hostage to obtain keys from the other resident manager and tied up. The offenders used keys to open the hotel’s safe. P had two weeks sick leave and some counselling and then returned to work. He had developed PTSD. A month or two later his duties were changed and he lost the benefit of free accommodation. PTSD was diagnosed on 13 April 2006 and because of symptoms P resigned his employment on 24 August 2007. He made a claim for workers compensation on 2 October 2008, consulted a solicitor on 8 October 2008 and gave notice of a claim for work injury damages on 7 April 2009. He was certified as having 15% WPI by a Medical Appeal Panel, but had no entitlement to any lump sum compensation under Workers Compensation Act 1987, s 66.

Held:

It was fair and just that P be entitled to bring proceedings and leave was granted under section 151D(2) of the Workers Compensation Act 1987.

Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 applied.

Tang v PM Industries Pty Ltd (Master Greenwood, 31 October 1996) referred to.

D alleged he was prejudiced…

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 Service v MacDougall

Details

AGLC: Service v MacDougall [2011] NSWDC 66
Case: [2011] NSWDC 66
Decision Date: 01 June 2011

CaseChat Overview and Summary

The matter before the court involved the plaintiff, Service, and the defendant, MacDougall. The plaintiff sought to commence proceedings for damages due to a work-related injury, asserting that the statutory limitation period for such claims should be extended. The dispute centred on whether the plaintiff was entitled to an extension of time to file a claim under the Workers Compensation Act 1988. The case was heard in the Supreme Court of Victoria.

The primary legal issues for the court to determine were whether the plaintiff's application for an extension of time to commence proceedings was valid under section 151D(2) of the Workers Compensation Act 1988 and whether the plaintiff's claim for damages related to a work injury could proceed despite the statutory limitation period having expired. Additionally, the court had to interpret the relevant statutory provisions to ascertain whether the plaintiff's application met the criteria for an extension of time.

The court found that the plaintiff had demonstrated sufficient grounds for seeking an extension of the limitation period. The plaintiff had acted promptly and diligently in pursuing the claim, and the defendant had not been prejudiced by the delay. The court also noted that the statutory provisions should be interpreted in a manner that aligns with the legislative intent to provide fair and just outcomes for workers who have suffered injuries. Consequently, the court granted the plaintiff leave to commence proceedings and dismissed the defendant's motion. The court further ordered that the costs of each Notice of Motion be costs in the cause.

The orders of the court allowed the plaintiff to file a Statement of Claim on 2 February 2011 and dismissed the defendant's motion filed on 20 April 2011. Additionally, the court ruled that the costs of each Notice of Motion be borne by the parties in accordance with the outcome of the proceedings.

Orders

Orders of the court

I grant leave to the Plaintiff to commence proceedings pursuant to section 151D(2) of the Workers Compensation Act 1988 by filing a Statement of Claim on 2 February 2011

The Defendant's Notice of Motion filed on 20 April 2011 is dismissed

I order that the costs of each Notice of Motion be costs in the cause

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Service v MacDougall [2011] NSWDC 66
Hearing dates:	31 May 2011 & 1 June 2011
Decision date:	01 June 2011
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I grant leave to the Plaintiff to commence proceedings pursuant to section 151D(2) of the Workers Compensation Act 1988 by filing a Statement of Claim on 2 February 2011 The Defendant's Notice of Motion filed on 20 April 2011 is dismissed I order that the costs of each Notice of Motion be costs in the cause
Catchwords:	LIMITATION OF ACTIONS - Extension of period - By leave of Court WORKERS COMPENSATION - Alternative Rights Against Employer - Work Injury Damages - Extension of Period Statutory Interpretation - Workers Compensation Legislation
Legislation Cited:	Workers Compensation Act 1987 s 151D(2) Workplace Injury Management and Workers Compensation Act 1998 s 282(1)
Cases Cited:	Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Tang v PM Industries Pty Ltd (Master Greenwood, 31 October 1996) Smith v Mann (1932) 47 CLR 426 Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354 Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326
Category:	Interlocutory applications
Parties:	Callum Robert Service (Plaintiff) Garry MacDougall (Defendant)
Representation:	Mr B G McManamey (Plaintiff) Mr P M Morris SC (Defendant) Stacks Goudkamp (Plaintiff) Moray and Agnew (Defendant)
File Number(s):	2011/34436