Australia, July 10 -- New South Wales Land and Environment Court issued text of the following judgement on June 11:

1. The plaintiff brings an application for leave, nunc pro tunc, pursuant to s 151D of the Workers Compensation Act 1987 (NSW), to commence and maintain these proceedings more than three years after the date of the injury upon which he sues.

2. In his Statement of Claim, the plaintiff alleges injury suffered on 4 March 2021 in the course of his employment with Plus Form Aust Pty Ltd (Plus Form). Because Plus Form is said to be in liquidation, the plaintiff sues its workers compensation insurer. [1]

3. The plaintiff alleges that on the day in question, when working as a formworker with Plus Form, he suffered injury to his neck, lower back and right shoulder whilst attempting to remove a formwork component, known as a "Z-bar", which had become stuck in concrete. It is alleged the plaintiff suffered what is described as a jolting injury, when a nut attached to the Z-bar snapped in the process of the plaintiff applying force to it. The plaintiff pleads a number of particulars of negligence which, in broad terms, involve failure to provide a safe system of work, failure to properly train and instruct the plaintiff, and vicarious liability for the employee responsible for the Z-bar becoming stuck in concrete.

4. It is not controversial that, when allowance is made for the periods when time does not run pursuant to s 151DA of the Workers Compensation Act, these proceedings were commenced about 12 weeks outside the three-year period prescribed in s 151D.

5. Section 151D falls into that category of limitation provision which provides the Court with a discretion to forestall the operation of the prescribed period. However, unlike some statutes, there is no prescription of the criteria to be considered in the exercise of that discretion. Section 151D simply provides that a claim for work injury damages cannot be commenced more than three years after the date of injury "except with the leave of the court".

6. There have been a number of authorities over the years dealing with the considerations which inform the application of s 151D. Practical guidance on dealing with the task at hand is provided by Basten JA in Gower v State of NSW [2018] NSWCA 132 at [4], where his Honour isolated three propositions an applicant must establish in order to obtain leave, namely:

1) That there is a sufficient and satisfactory explanation for each period of delay.

2) That there is a reasonably arguable cause of action against the defendant.

3) That the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1975beb4fb422dad360be4a0)

Disclaimer: Curated by HT Syndication.