Blanche v North Parkes Limited [2008] NSWDC 175

Blanche v North Parkes Limited [2008] NSWDC 175

Leave was granted because the plaintiff's delay was reasonably explained by the ongoing instability of his injury and the need to ascertain whole person impairment, the delay after expiry of the limitation period was relatively short, the plaintiff appeared to have suffered significant consequences, and the fourth defendant did not establish that it could not secure a fair trial. Consequently, the fourth defendant's dismissal motion failed.

Jurisdiction
Australia
Judgment Date
31 July 2008
Procedural Posture
Civil; Work Injury Damages Proceeding / Plaintiff's Motion for Leave Pursuant to S 151 D of the Workers Compensation Act 1987 to Commence Proceedings Out of Time; Fourth Defendant's Motion to Dismiss the Statement of Claim as Against It
Outcome
Plaintiff's motion granted; fourth defendant's motion dismissed; costs of both motions to be costs in the cause.
Legal Topics
['leave to Commence Proceedings Out of Time' 'work Injury Damages' 'whole Person Impairment' 'delay' 'fair Trial Prejudice' 'costs in the Cause']
['workers Compensation' 'civil Procedure' 'limitation of Actions'] ['leave to Commence Proceedings Out of Time' 'work Injury Damages' 'whole Person Impairment' 'delay' 'fair Trial Prejudice' 'costs in the Cause']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil; Work Injury Damages Proceeding / Plaintiff's Motion for Leave Pursuant to S 151 D of the Workers Compensation Act 1987 to Commence Proceedings Out of Time; Fourth Defendant's Motion to Dismiss the Statement of Claim as Against It

Legal Issues

  1. 1 ['Whether leave should be granted pursuant to s 151D of the Workers Compensation Act 1987 for the plaintiff to commence proceedings against the fourth defendant outside the three year time limit.' "Whether the plaintiff's delay was satisfactorily explained by the instability of his injury and delay in assessment of whole person impairment." 'Whether the fourth defendant would be unable to secure a fair trial because a nominated fellow employee had no memory of the incident.' "Whether the fourth defendant's motion to dismiss should be granted if leave was refused."]

Ratio Decidendi

Leave was granted because the plaintiff's delay was reasonably explained by the ongoing instability of his injury and the need to ascertain whole person impairment, the delay after expiry of the limitation period was relatively short, the plaintiff appeared to have suffered significant consequences, and the fourth defendant did not establish that it could not secure a fair trial. Consequently, the fourth defendant's dismissal motion failed.

Court Disposition

Plaintiff's motion granted; fourth defendant's motion dismissed; costs of both motions to be costs in the cause.

Orders

  • ["On the plaintiff's motion filed on 11 April 2008: Leave is granted pursuant to s 151D of the Workers Compensation Act 1987 to the plaintiff to commence proceedings against Capena Contracting Pty Limited." 'The leave granted is to be exercised by not later than 18.8.08.' 'Liberty to apply to vary this date.' 'Costs...