Forbes v Nepean Transport Pty Ltd [2024] NSWDC 467

Forbes v Nepean Transport Pty Ltd [2024] NSWDC 467

The plaintiff provided an adequate and reasonable explanation for the delay in commencing proceedings, as he was unaware of his right to bring a claim and could not satisfy the legislative impairment threshold until 2022. Once able, he acted without delay. While the defendant established some actual and presumed prejudice due to missing documents and faded memories, this was not sufficient to demonstrate that a fair trial was unlikely. The plaintiff has a reasonably arguable case supported by expert and medical evidence, and the defendant can adduce oral and documentary evidence for its defence. Leave is therefore granted under s 151D(2) of the Workers Compensation Act 1987 (NSW) and...

Parties
Plaintiff/applicant: Christopher Forbes; Defendant/respondent: Nepean Transport Pty Ltd
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Civil / Application for Leave to Commence and Maintain Proceedings Out of Time Under S 151 D(2) of the Workers Compensation Act 1987 (nsw)
Outcome
Plaintiff granted leave to commence and maintain proceedings out of time; costs in the cause.
Legal Topics
Application for Extension of Limitation Period, Work Injury Damages, Explanation for Delay, Presumed and Actual Prejudice, Costs
Workers Compensation Negligence Personal Injury Civil Procedure Application for Extension of Limitation Period Work Injury Damages Explanation for Delay Presumed and Actual Prejudice +1 more

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Parties

Christopher Forbes

Plaintiff/applicant

Nepean Transport Pty Ltd

Defendant/respondent

Procedural Posture

Civil / Application for Leave to Commence and Maintain Proceedings Out of Time Under S 151 D(2) of the Workers Compensation Act 1987 (nsw)

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to commence and maintain proceedings out of time under s 151D(2) of the Workers Compensation Act 1987 (NSW)
  2. 2 Whether there is an adequate explanation for delay in commencing proceedings
  3. 3 Whether the defendant would suffer actual or presumed prejudice such as to render a fair trial unlikely

Ratio Decidendi

The plaintiff provided an adequate and reasonable explanation for the delay in commencing proceedings, as he was unaware of his right to bring a claim and could not satisfy the legislative impairment threshold until 2022. Once able, he acted without delay. While the defendant established some actual and presumed prejudice due to missing documents and faded memories, this was not sufficient to demonstrate that a fair trial was unlikely. The plaintiff has a reasonably arguable case supported by expert and medical evidence, and the defendant can adduce oral and documentary evidence for its defence. Leave is therefore granted under s 151D(2) of the Workers Compensation Act 1987 (NSW) and...

Court Disposition

Plaintiff granted leave to commence and maintain proceedings out of time; costs in the cause.

Orders

  • The plaintiff is granted leave, nunc pro tunc, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) to commence and maintain these proceedings against the defendant.
  • The costs of this application are to be costs in the cause.