Merton v Manildra Energy Australia Pty Ltd [2013] NSWSC 1482

Merton v Manildra Energy Australia Pty Ltd [2013] NSWSC 1482

The discretion to extend time should be exercised because the plaintiff had made clear from an early stage that he wished to bring proceedings against Park, was prevented from doing so until he obtained evidence satisfying the 15 percent whole person impairment threshold and completed statutory pre-filing steps, the delay in obtaining psychiatric evidence was adequately explained by the plaintiff's PTSD and associated avoidance symptoms, and there was no evidence of prejudice to Park, which had known of the claim and had been joined in the proceedings for years.

Jurisdiction
Australia
Judgment Date
11 October 2013
Procedural Posture
Application for Leave Pursuant to S151 D of the Workers Compensation Act 1987 to Commence Proceedings for Damages Against Employer After the 3 Year Limitation Period / Notice of Motion Seeking Extension of Time; Principal Judgment Granting Extension
Outcome
Extension of time granted.
Legal Topics
['extension of Time' 'workers Compensation Act 1987 S151 D' 'whole Person Impairment Threshold' 'forensic Prejudice' 'post Traumatic Stress Disorder as Explanation for Delay']
['workers Compensation' 'limitation of Actions' 'negligence' 'work Injury Damages'] ['extension of Time' 'workers Compensation Act 1987 S151 D' 'whole Person Impairment Threshold' 'forensic Prejudice' 'post Traumatic Stress Disorder as Explanation for Delay']

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Procedural Posture

Application for Leave Pursuant to S151 D of the Workers Compensation Act 1987 to Commence Proceedings for Damages Against Employer After the 3 Year Limitation Period / Notice of Motion Seeking Extension of Time; Principal Judgment Granting Extension

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under s151D of the Workers Compensation Act 1987 to commence damages proceedings against Park more than 3 years after the injury was received.' "Whether the delay in commencing proceedings was satisfactorily explained by the plaintiff's inability to obtain the required whole person impairment assessment and by his psychiatric condition." 'Whether granting the extension would cause significant prejudice to Park.']

Ratio Decidendi

The discretion to extend time should be exercised because the plaintiff had made clear from an early stage that he wished to bring proceedings against Park, was prevented from doing so until he obtained evidence satisfying the 15 percent whole person impairment threshold and completed statutory pre-filing steps, the delay in obtaining psychiatric evidence was adequately explained by the plaintiff's PTSD and associated avoidance symptoms, and there was no evidence of prejudice to Park, which had known of the claim and had been joined in the proceedings for years.

Court Disposition

Extension of time granted.

Orders

  • ['Grant the plaintiff an extension of time within which to commence proceedings against Park up to and including 12 February 2013.' "The plaintiff's costs of this application are to be the plaintiff's costs in the cause."]