Section 151D: A tale of two applications

  • Newsletter Article
  • Published 16.11.2020
Cavanagh v Manning Valley Race Club Ltd (NSWDC 2020) 
Hawley v Wesley Community Services Ltd (NSWDC 2020) 

Key Takeaways

When seeking leave to pursue a work injury damages claim under s151D of the Workers Compensation Act 1987, a worker needs to ensure they provide sufficient evidence to support their application.

Brief Facts

S151D was recently considered by His Honour Russell J of the NSWDC in two separate decisions. Leave under s151D was granted by His Honour in one matter, but was refused in the other.

In Cavanagh, the worker was injured in February 2011. The worker alleged injury as a result of having to continually rotate his head and upper body whilst driving a tractor in the course of his employment. 

The worker satisfied the 15% WPI threshold to pursue a work injury damages claim in October 2019. A Statement of Claim was filed in April 2020. The employer filed its defence the following month, denying negligence and pleading that the proceedings had been brought out of time pursuant to s151D. The worker sought leave to commence proceedings by way of Notice of Motion filed in July 2020.

In Hawley, the worker was employed as an Assistant in Nursing. The worker was injured in August 2011 whilst lifting a patient. In February 2020, the defendant conceded that the worker had satisfied the 15% WPI threshold. The worker thereafter sought leave to commence proceedings out of time by way of a Notice of Motion filed in August 2020.

Judgment

Cavanagh

Russell J was ultimately satisfied that the worker had provided a reasonable explanation for the delay in commencing proceedings. Having regard to the NSWCA’s decision in Gower v State of NSW (NSWCA 2018), His Honour outlined what the courts will consider in determining whether or not to grant leave, including:

  • whether the worker’s case is weak;
  • whether there is actual prejudice to the employer arising from the delay; and
  • whether the worker should have given an earlier notice of intention to make a work injury damages claim.

His Honour considered that there was sufficient evidence to support the worker’s assertion that he was required to rotate his body whilst operating the tractor. His Honour did not consider the presumptive prejudice pleaded by the employer to be a significant bar to the worker’s application, as the tractor and leveller were still available to be inspected, and the persons upon whose statements the employer had relied upon were also still available. 

It was further noted that the worker did not wait until being certified with at least 15% WPI before giving notice of his intention to bring a work injury damages claim. Indeed, written notice was served on the employer 21 months prior to his 15% WPI certification and as such, His Honour did not consider that the worker should have realistically given notice any earlier than he did.

Accordingly, leave was granted to the worker to pursue his claim out of time pursuant to s151D. 

Hawley

Emphasising the worker’s onus of convincing the court to exercise its discretion under s151D, Russell J dismissed the worker’s Notice of Motion. A primary reason for the refusal to grant leave was the lack of evidence adduced by the worker with respect to liability for her alleged injuries. In addition, the worker also failed to explain her diligence (or lack thereof) in pursuing her claim. The absence of evidence was so great that His Honour was unable to form an adequate view either way as to whether the delay made the chances of a fair trial unlikely.

Accordingly, leave was refused to the worker to pursue her claim out of time pursuant to s151D.

Implications

A worker cannot simply rely upon a delay in the certification of their WPI as a means of circumventing the 3-year limitation period under s151D. A worker must adduce evidence that goes to the crux of their cause of action as well as evidence that shows they should not have realistically given notice earlier than they did. Both Cavanagh and Hawley emphasise the inviolability of a plaintiff’s onus of proof under s151D.

Adele Fletcher

Partner

P: 02 8257 5708

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