Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915

Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915

Leave was granted because, although there had been substantial delay, the plaintiff was legally precluded from bringing a work injury damages claim until a 15% whole person impairment determination was made on 2 May 2018, the defendant's claimed forensic disadvantage was significantly reduced by the availability of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Work Injury Damages Limitation Application / Notice of Motion Seeking Leave to Commence Proceedings More Than Three Years After Injury
Outcome
Leave granted to commence the work injury damages claim; costs awarded to the plaintiff; substantive hearing remained listed.
Legal Topics
['work Injury Damages' 'extension of Time' 'permanent Impairment Threshold' 'forensic Disadvantage' 'workplace Injury']
['workers Compensation' 'personal Injury' 'limitation of Actions'] ['work Injury Damages' 'extension of Time' 'permanent Impairment Threshold' 'forensic Disadvantage' 'workplace Injury']

Source-derived case record

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Procedural Posture

Work Injury Damages Limitation Application / Notice of Motion Seeking Leave to Commence Proceedings More Than Three Years After Injury

Legal Issues

  1. 1 ['Whether leave should be granted under s 151D(2) of the Workers Compensation Act 1987 (NSW) to commence work injury damages proceedings more than three years after the injury.' 'Whether the delay caused significant forensic disadvantage to the defendant.' "Whether the plaintiff's inability to commence proceedings before a 15% whole person impairment assessment made her case a justifiable exception to the limitation period."]

Ratio Decidendi

Leave was granted because, although there had been substantial delay, the plaintiff was legally precluded from bringing a work injury damages claim until a 15% whole person impairment determination was made on 2 May 2018, the defendant's claimed forensic disadvantage was significantly reduced by the availability of a director of the employer to give evidence about the plaintiff's role, training and instructions, and the defendant had access to medical and workers compensation material from the time of the injury. In those circumstances the plaintiff was a justifiable exception to the limitation period and it was fair and just to permit the claim to proceed.

Court Disposition

Leave granted to commence the work injury damages claim; costs awarded to the plaintiff; substantive hearing remained listed.

Orders

  • ['Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), leave is granted to the plaintiff to commence her claim for work injury damages.' 'A declaration that Subdiv 2, Div 3, Pt 17 of the Workers Compensation Regulation 2016 (NSW) does not apply to the costs of the motion pursuant to the effect of cl 98...