Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009

Rosalina Bastolini Thompson v Kimberly-Clark Australia Pty Ltd [2005] NSWSC 1009

Mrs Thompson’s statement of claim, to the extent that it pleaded a cause of action under the Compensation to Relatives Act, is invalid and must be struck out as it did not comply with procedural requirements in Chapter 7 as those requirements apply to such statutory claims. Her claim for nervous shock, however, is not captured by those provisions and may proceed.

Jurisdiction
Australia
Judgment Date
07 October 2005
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court (master) Decision
Outcome
Appeal upheld in part.
Legal Topics
['compensation to Relatives Act Claims' 'work Injury Damages' 'procedural Compliance Under Workplace Injury Management and Workers Compensation Act' 'nervous Shock Claims']
['tort Law' 'statutory Interpretation' 'workers Compensation'] ['compensation to Relatives Act Claims' 'work Injury Damages' 'procedural Compliance Under Workplace Injury Management and Workers Compensation Act' 'nervous Shock Claims']

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court (master) Decision

Legal Issues

  1. 1 ['Whether Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 applies to a dependant’s statutory claim under the Compensation to Relatives Act' 'Whether procedural non-compliance invalidates proceedings for work injury damages' 'Whether a claim for nervous shock by a third party is governed by Chapter 7 of the Act']

Ratio Decidendi

Mrs Thompson’s statement of claim, to the extent that it pleaded a cause of action under the Compensation to Relatives Act, is invalid and must be struck out as it did not comply with procedural requirements in Chapter 7 as those requirements apply to such statutory claims. Her claim for nervous shock, however, is not captured by those provisions and may proceed.

Court Disposition

Appeal upheld in part.

Orders

  • ['Appeal upheld in part.' 'So much of the Statement of Claim as is solely relevant to a Compensation to Relatives Act action is struck out.' 'Leave granted to Mrs Thompson to file an Amended Statement of Claim within 28 days, pleading an action for damages for mental or nervous shock arising out of her husband’s...