Gosbell v ADI Ltd & Anor [2001] NSWSC 354

Gosbell v ADI Ltd & Anor [2001] NSWSC 354

Exhibit A confirmed the plaintiff's understanding of advice and instructions to issue common law proceedings, but lacked any express content showing that an irrevocable election was then being made to institute proceedings for damages for non-economic loss as a sequential step before commencing proceedings. The plaintiff therefore did not discharge the onus of proving a written election under s 45 before commencement of the proceedings.

Jurisdiction
Australia
Judgment Date
25 May 2001
Procedural Posture
Proceedings for Recovery of Damages for Workplace Injury / Separate Question Heard by Consent Pursuant to Pt 31 of the Supreme Court Rules 1970 After First Defendant's Notice of Motion Seeking Summary Relief
Outcome
The separate question was answered no: the plaintiff had not elected in writing under s 45 prior to commencement of the proceedings.
Legal Topics
['election Under S 45 of the Safety, Rehabilitation and Compensation Act 1988' 'bar to Actions Under S 44 of the Safety, Rehabilitation and Compensation Act 1988' 'separate Question' 'written Election Before Commencement of Proceedings']
['common Law' 'workers Compensation' 'personal Injury'] ['election Under S 45 of the Safety, Rehabilitation and Compensation Act 1988' 'bar to Actions Under S 44 of the Safety, Rehabilitation and Compensation Act 1988' 'separate Question' 'written Election Before Commencement of Proceedings']

Case Brief

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Procedural Posture

Proceedings for Recovery of Damages for Workplace Injury / Separate Question Heard by Consent Pursuant to Pt 31 of the Supreme Court Rules 1970 After First Defendant's Notice of Motion Seeking Summary Relief

Legal Issues

  1. 1 ['Whether the Plaintiff elected in writing to institute an action or proceeding against the Commonwealth, the Commonwealth Authority or the licensed corporation under s 45 of the Safety, Rehabilitation & Compensation Act, 1988 prior to the commencement of these proceedings.' 'Whether the letter signed by the plaintiff on 9/1/2001 satisfied the requirements of an express written election under s 45.']

Ratio Decidendi

Exhibit A confirmed the plaintiff's understanding of advice and instructions to issue common law proceedings, but lacked any express content showing that an irrevocable election was then being made to institute proceedings for damages for non-economic loss as a sequential step before commencing proceedings. The plaintiff therefore did not discharge the onus of proving a written election under s 45 before commencement of the proceedings.

Court Disposition

The separate question was answered no: the plaintiff had not elected in writing under s 45 prior to commencement of the proceedings.

Orders

  • ['The first defendant is to have the costs of the special question.' 'Otherwise the question of costs is reserved.' 'The Exhibits may be returned.']