Sukumar v Weir Minerals Australia Limited

District Court

New South Wales

Medium Neutral Citation:

Sukumar v Weir Minerals Australia Limited [2019] NSWDC 48

Hearing dates:

26, 27 February 2019

Date of orders:

08 March 2019

Decision date:

08 March 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Grant leave to the plaintiff nunc pro tunc to commence these proceedings on 20 June 2018.
(2)   Judgment for the plaintiff against the defendant for $448,483.04.
(3)   Order that each party pay his or its own costs of the proceedings.
(4)   Grant leave to approach my Associate within 7 days if either party wishes to seek a different costs order.

Catchwords:

TORTS – negligence – plaintiff slipped on mixture of swarf, coolant and oil leaking from employer’s machine – injury to right shoulder, lumbar spine and knee – proceedings commenced more than 3 years after date of injury – whether leave of the court should be given to bring proceedings out of time – what is fair and just in the circumstances – whether reasonable explanation for delay provided- whether defendant has suffered prejudice - s 151D Workers Compensation Act 1987

 

TORTS – negligence – claim for work injury damages must be referred to mediation before proceedings can be commenced – mediation unsuccessful - no mediation certificate provided – s 318A(4), 318B(2) and 318E(4) Workplace Injury Management and Workers Compensation Act 1998

 

TORTS – liability - negligence – contributory negligence

TORTS – damages – past economic loss – future economic loss – must have at least 15% whole person impairment – s 151G and s 151H(1) Workers Compensation Act 1987

Legislation Cited:

Civil Liability Act 2002
Dust Diseases Tribunal Regulation 2013
Workers Compensation Act 1987
Workers Compensation Regulation 2016
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Egri v DRG Australian Limited [1988] 19 NSWLR 600
Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447
Itek Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Salido v Nominal Defendant (1993) 32 NSWLR 524
South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Wilkinson v Perisher Blue Pty Limited [2012] NSWCA 250

Category:

Principal judgment

Parties:

Sundara Sukumar (Plaintiff)
Weir Minerals Australia Limited (Defendant

Representation:

Counsel:
L King SC with I Judd (Plaintiff)
L Robison (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Barker Henley (Defendant)

File Number(s):

2018/198046

Judgment

Introduction

1. On 2 February 2012 the plaintiff was injured while working at the defendant’s factory. He slipped on the floor near the milling machine which he was operating. He injured his right shoulder, his lumbar spine and his right knee.

2. By a Statement of Claim filed on 20 June 2018 the plaintiff alleges that the defendant was negligent and that such negligence caused injury, disability and loss. Such a claim is governed by Pt 5 Div 3 of the Workers Compensation Act 1987 (the 1987 Act).

3. By s 151D of the 1987 Act a person is not entitled to commence court proceedings for such damages more than three years…