Donoso v Blacktown City Council [2020] NSWDC 656

District Court New South Wales

Medium Neutral Citation: Donoso v Blacktown City Council [2020] NSWDC 656 Hearing dates: 30 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 53-54 Catchwords: WORKERS COMPENSATION – application for leave to extend time to commence proceeding – work injury damages – explanation for delay Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 72, 73 Workers Compensation Act 1987 (NSW), ss 66A, 151D, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 282 Cases Cited: Brisbane South Regional Health Authority v Taylor 1996) 186 CLR 541 Gower v State of New South Wales [2018] NSWCA 132 Holt v Wynter (2000) 49 NSWLR 128 Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 Category: Procedural and other rulings Parties: Mr J Donoso (Plaintiff/Application) Blacktown City Council (Defendant/Respondent) Representation: Counsel: Mr J Dodd for the plaintiff/applicant Mr A Combe for the defendant/respondent

Solicitors: NSW Compensation Lawyers for the plaintiff/applicant Sparke Helmore Lawyers for the defendant/respondent File Number(s): 2020/125473 Publication restriction: Nil

Judgment

BACKGROUND 1. This is an application by the plaintiff, as applicant, for leave to commence a proceeding, nunc pro tunc, against the defendant (respondent) under s 151D(2) of the Workers Compensation Act 1987 (NSW) ('the Act'). 2. The respondent put submissions which, if accepted, would incline the Court to reject the application. 3. The applicant is now 62 years old. He was born in Chile. From 1988 to 2011, he was employed by Bonds T-shirts as a machine operator and part time as a cleaner. He commenced employment with the respondent as a cleaner in October 2011. 4. By his Statement of Claim, dated 27 April 2020, the applicant seeks damages for personal injury which he says was suffered on 16 April 2016 in the Bowman Hall in the Civic Centre when he was a cleaner employed by the respondent. He asserts that he was injured in the course of moving a timber table from a stack of tables stacked vertically against a wall when another table in the stack fell over and struck him. He asserts that his physical injuries were to his left wrist (requiring surgery, but still manifesting symptoms), his left shoulder, head injury and surgical scarring. 5. The particulars of negligence stated are alleged to include a failure to warn the plaintiff of danger; a failure to take adequate precautions for his safety; and failing to provide a safe work place. Somewhat more specifically, it is alleged that the respondent had failed to secure the stack of tables, such as by providing cleats on the floor and failing to stabilize the stack of tables. Reliance is also placed on the alleged breach of an Australian Standard relating to the storage of material. 6. The heads of damages claimed in the Statement of Particulars include past loss of income (including damages under Fox v Wood principles and loss of superannuation benefits), and future loss of earning capacity. 7. The respondent filed a Defence on 26 May 2020, by which it disputes liability, denies the injuries and also pleads contributory negligence.