Young v Reece Australia Pty Limited - [2018] NSWDC 465

District Court

New South Wales

Medium Neutral Citation: Young v Reece Australia Pty Limited [2018] NSWDC 465
Hearing dates: 1 August 2018
Date of orders: 01 August 2018
Decision date: 01 August 2018
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
I grant leave to the plaintiff to commence proceedings for work injury damages arising out of the accident on 29 May 2013 as on 19 April 2018.
Costs in the cause
Catchwords:
TORTS - WORK INJURIES DAMAGES CLAIM – LIMITATIONS - Application to extend limitation period under Workers Compensation Act 1987, s151D.
Arguable cause of action - Plaintiff out of time by 81 weeks but half that period explained by need to reach agreement that plaintiff had WPI of 15% or more. Balance of time spent complying with statutory requirements before commencement of Court proceedings. Potentially large claim for a worker who had beforehand lost 4 digits of left hand and in subsequent accident lost about 30% of use of right hand.
Legislation Cited: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gower v The State of New South Wales [2018] NSWCA 132
Prince Alfred College Incorporated v ADC [2016] HCA 37
Category: Procedural and other rulings
Parties: Philip Young (Plaintiff)
Reece Australia Pty Limited (Defendant)
Representation:
Counsel:
Mr P Menary (Plaintiff)
Mr S Flett (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Bartier Perry Lawyers (Defendant)

File Number(s): 2018/00124420
Publication restriction: Nil

Judgment

HIS HONOUR: This is an application under s 151D of the Workers Compensation Act 1987 ("the 1987 Act"). There is no dispute that the plaintiff was injured on 29 May 2013 at his employer's place of business at Gateshead near Newcastle. There is no dispute the plaintiff fractured a number of parts of his right wrist. At that time the plaintiff was aged 46 years. The plaintiff has been paid either wages or workers compensation payments up until today's date. On 19 April 2018 the plaintiff filed a statement of claim, claiming work injury damages. Under s 151D of the 1987 Act, an action is to be commenced within three years of the occurrence of the injury unless the Court grants leave otherwise. The three-year limitation period expired on 29 May 2016. The defendant filed a defence on 7 May 2018. Plea numbered 9 is this:

"Further and in the alternative, as a complete defence to the claim, the Defendant says that the Plaintiff is precluded from commencing these proceedings, pursuant to the terms of s 151D of the Workers Compensation Act 1987."

That led to the plaintiff's filing a notice of motion on 18 June 2018 seeking an order, nunc pro tunc, that the plaintiff have leave to commence the proceedings on 18 June 2018.
The application before me is relatively simple. The plaintiff swore an affidavit on 18 June 2018. That is exhibit A-A. To it are annexed a number of documents. The plaintiff was not required…

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: [2018] NSWDC 465
Decision Date: 01 August 2018

CaseChat Overview and Summary

The plaintiff in this case, Young, sought to extend the limitation period under the Workers Compensation Act 1987, section 151D, to commence proceedings for work injury damages arising from an accident on 29 May 2013. Young was out of time by 81 weeks but explained that half of this period was due to the need to reach an agreement that Young had a whole person impairment (WPI) of 15% or more. The balance of time was spent complying with statutory requirements before the commencement of court proceedings. The plaintiff had previously lost four digits of their left hand and subsequently lost about 30% of the use of their right hand in a subsequent accident.

The court was required to determine whether the plaintiff's application for an extension of the limitation period was justified and whether the plaintiff's explanation for the delay was sufficient. The court also had to consider the potential size of the claim and the plaintiff's previous injuries.

The court granted the plaintiff leave to commence proceedings for work injury damages arising out of the accident on 29 May 2013 as on 19 April 2018. The court found that the plaintiff's explanation for the delay was reasonable and that the balance of the time was spent complying with statutory requirements. The court also noted that the plaintiff had a potentially large claim for a worker who had beforehand lost four digits of their left hand and in a subsequent accident lost about 30% of the use of their right hand. The court found that the plaintiff's previous injuries did not affect the outcome of the application for an extension of the limitation period. The court also ordered costs in the cause.

Orders

Orders of the court

I grant leave to the plaintiff to commence proceedings for work injury damages arising out of the accident on 29 May 2013 as on 19 April 2018.

Costs in the cause

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:	Young v Reece Australia Pty Limited [2018] NSWDC 465
Hearing dates:	1 August 2018
Date of orders:	01 August 2018
Decision date:	01 August 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I grant leave to the plaintiff to commence proceedings for work injury damages arising out of the accident on 29 May 2013 as on 19 April 2018. Costs in the cause
Catchwords:	TORTS - WORK INJURIES DAMAGES CLAIM – LIMITATIONS - Application to extend limitation period under Workers Compensation Act 1987, s151D. Arguable cause of action - Plaintiff out of time by 81 weeks but half that period explained by need to reach agreement that plaintiff had WPI of 15% or more. Balance of time spent complying with statutory requirements before commencement of Court proceedings. Potentially large claim for a worker who had beforehand lost 4 digits of left hand and in subsequent accident lost about 30% of use of right hand.
Legislation Cited:	Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gower v The State of New South Wales [2018] NSWCA 132 Prince Alfred College Incorporated v ADC [2016] HCA 37
Category:	Procedural and other rulings
Parties:	Philip Young (Plaintiff) Reece Australia Pty Limited (Defendant)
Representation:	Counsel: Mr P Menary (Plaintiff) Mr S Flett (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) Bartier Perry Lawyers (Defendant)
File Number(s):	2018/00124420
Publication restriction:	Nil