Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189

Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189

Leave to commence proceedings under s 151D(2) of the Workers Compensation Act 1987 is required and granted because, applying binding authority, the limitation period runs from the date of injury (26 October 2001) and not from the later assessment of permanent impairment. While there was delay attributable largely to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 August 2013
Procedural Posture
Interlocutory Application / Application for Leave to Commence Proceedings Out of Time
Outcome
Leave to commence proceedings granted; plaintiff to pay defendant's costs of the notice of motion.
Legal Topics
['limitation Period' 'workplace Injury' 'extension of Time' 'negligence' 'psychological Injury' 'amendment of Pleadings' 'prejudice' 'cross Claim Rights' 'delay in Proceedings' 'conduct of Solicitor']
['civil Law' 'personal Injury' 'workers Compensation'] ['limitation Period' 'workplace Injury' 'extension of Time' 'negligence' 'psychological Injury' 'amendment of Pleadings' 'prejudice' 'cross Claim Rights' 'delay in Proceedings' 'conduct of Solicitor']

Source-derived case record

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Procedural Posture

Interlocutory Application / Application for Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether leave should be granted to commence proceedings outside the three-year limitation period under s 151D(2) of the Workers Compensation Act 1987' 'When the limitation period commences' 'Whether the plaintiff reached the statutory threshold for WPI' 'Whether the defendant suffered significant prejudice due to delay' 'Whether former employment contributed to injury' "Impact of conduct and delay by plaintiff's solicitor"]

Ratio Decidendi

Leave to commence proceedings under s 151D(2) of the Workers Compensation Act 1987 is required and granted because, applying binding authority, the limitation period runs from the date of injury (26 October 2001) and not from the later assessment of permanent impairment. While there was delay attributable largely to the plaintiff’s solicitor and some evidence has become unavailable due to effluxion of time, the defendant did not suffer significant prejudice making a fair trial unlikely, and the plaintiff was not personally responsible for the delay. The amendment of pleadings to correct the employment period and other procedural changes were appropriate and did not cause material...

Court Disposition

Leave to commence proceedings granted; plaintiff to pay defendant's costs of the notice of motion.

Orders

  • ['Leave granted to plaintiff to commence proceedings in this Court pursuant to section 151D(2) of the Workers Compensation Act 1987 on 9 May 2012.' 'Plaintiff to pay defendant’s costs of the notice of motion.']