Nicholls v The Professional Pest Controllers Pty Ltd [2025] NSWPIC 427

Link to decision  Link to video

Key takeaways

A claim for lump sum compensation was successfully defended by relying on the notice provisions detailed in sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

Brief facts

The applicant was a working director of the respondent. He sustained a cervical spine injury when he fell and slid down an embankment before colliding with a wall on 20 May 2020. The applicant came to surgery on 30 December 2020.

The applicant lodged a claim for lump sum compensation on 3 December 2024. The claim was disputed on the basis that the applicant did not make his claim within the statutory period, relying on sections 254 and 261 of the 1998 Act.

Judgment

Section 261 of the 1998 Act requires a claim for compensation to be made within six months after the date of injury. The six-month limit can be extended to three years if the failure to make a claim ‘was occasioned by ignorance, mistake, absence from the State or other reasonable cause’. Notably, the applicant has the onus of proving, on the balance of probabilities, that the failure to make the claim was due to ‘ignorance…or other reasonable cause’.

The Member accepted the respondent’s submissions that the applicant had knowledge of workers compensation claims because he was subsequently involved in that process in relation to a lower back injury (which was the subject of a separate claim). The lower back injury was after the neck injury, but, in the Member’s own words, demonstrated the applicant’s knowledge of workers compensation claims relatively soon after his cervical spine injury. Therefore, the Member was not satisfied that the applicant’s ignorance was a valid reason to overcome section 261 of the 1998 Act.

The Member noted that the applicant raised an alternative argument that there were other reasonable causes for his failure to make a claim within the requisite period. This included dealing with his lower back injury, which he considered to be a priority at the time. However, the Member noted that the lower back injury occurred well after the six-month period and could not have been a factor at the relevant time.

The Member held that the applicant had not satisfied the requirements of sections 254 and 261, so issued an award for the respondent.

Implications

A respondent’s reliance upon sections 254 and 261 when raising a dispute on a claim is usually in the alternative to another dispute. However, this case highlights that such a defence can, and should be, relied upon when presented with the right set of factual circumstances.