Thompson v Kimberly-Clark Australia P/L [2005] NSWSC 172

Thompson v Kimberly-Clark Australia P/L [2005] NSWSC 172

Although the plaintiff was claiming work injury damages, the WorkCover Guidelines and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) require a claim declaration to be signed by the worker and do not provide for the dependants of a deceased worker to make a claim or sign the declaration. The definition of worker is clear and should not be extended. There was therefore no requirement for the widow to make a claim before filing the statement of claim, and the defendant's motion to dismiss failed.

Jurisdiction
Australia
Judgment Date
14 March 2005
Procedural Posture
Notice of Motion to Dismiss Statement of Claim in Work Injury Damages Proceedings / Notice of Motion Filed 7 September 2004
Outcome
Defendant's notice of motion dismissed; defendant ordered to pay the plaintiff's costs as agreed or assessed.
Legal Topics
['pre Filing Claims Procedure Under Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)' 'whether Widow/dependants Must Make a Claim Before Commencing Court Proceedings' 'dismissal of Statement of Claim']
['workers Compensation' 'work Injury Damages' 'civil Procedure'] ['pre Filing Claims Procedure Under Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)' 'whether Widow/dependants Must Make a Claim Before Commencing Court Proceedings' 'dismissal of Statement of Claim']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion to Dismiss Statement of Claim in Work Injury Damages Proceedings / Notice of Motion Filed 7 September 2004

Legal Issues

  1. 1 ['Whether under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) the plaintiff was obliged to make a claim prior to commencing court proceedings.' 'Whether the claims procedure requiring a declaration signed by the worker applies to the widow of a deceased worker bringing proceedings for nervous shock and under the Compensation to Relatives Act 1987 (NSW).']

Ratio Decidendi

Although the plaintiff was claiming work injury damages, the WorkCover Guidelines and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) require a claim declaration to be signed by the worker and do not provide for the dependants of a deceased worker to make a claim or sign the declaration. The definition of worker is clear and should not be extended. There was therefore no requirement for the widow to make a claim before filing the statement of claim, and the defendant's motion to dismiss failed.

Court Disposition

Defendant's notice of motion dismissed; defendant ordered to pay the plaintiff's costs as agreed or assessed.

Orders

  • ["The defendant's notice of motion filed 7 September 2004 is dismissed." "The defendant is to pay the plaintiff's costs as agreed or assessed."]