Abdulbaki v South Western Sydney Area Health Service [1999] NSWSC 911

New South Wales Supreme Court CITATION : Abdulbaki v South Western Sydney Area Health Service [1999] NSWSC 911 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11991/1998 HEARING DATE(S) : 26 August 1999 JUDGMENT DATE : 9 September 1999

Nora Abdulbaki (Plaintiff) PARTIES : v South Western Sydney Area Health Service (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr P W Neil SC/Mr R Taylor (Plaintiff) Mr M J Jenkins (Defendant) SOLICITORS : G H Healey & Co (Plaintiff) William K Chambers - G I O Australia Ltd (Defendant) CATCHWORDS : Leave to commence proceedings; discretionary power; no question of principle. ACTS CITED : Workers Compensation Act 1987, S 151D (2). CASES CITED : N/A DECISION : See paragraphs 22-24.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 9 SEPTEMBER 1999

11991/1998 NORA ABDULBAKI v SOUTH WESTERN SYDNEY AREA HEALTH SERVICE JUDGMENT 1 These proceedings were commenced by Summons filed on 17 August 1998. The plaintiff seeks inter alia relief under s 151D (2) of the Workers Compensation Act 1987 (the Act). 2 The hearing took place on 26 August 1999. In support of the application, the plaintiff relied on affidavits sworn by both herself and her solicitors. She was cross-examined. She tendered documentary material. The defendant did not adduce any evidence. 3 In 1987, the plaintiff commenced employment at Lidcombe Hospital as a catering assistant (in the kitchen area). Whilst carrying out her work duties she suffered injury on 30 October 1994. She slipped on a wet floor and sustained injuries (inter alia to her neck, lower back, right shoulder and right arm). Subsequently, she also suffered from referred pain in the right arm and the right leg. Material relating to her medical condition (including a number of reports) may be found in the affidavits. For the purposes of this judgment, it is not necessary to recount the detail of that material. 4 She has said that she fell in an area adjacent to the washing up area in the kitchen. She has said that there was quite a bit of water and soap on the floor. She has also said that a rubber mat had been removed from the floor area and had not been replaced at the time of the incident. 5 On or about 1 November 1994, an Accident/Incident Reporting Form was completed and a claim for compensation was made to the insurer of the employer. Initially, she had some time off from work. Attempts were made to return to work on light duties. She was paid worker's compensation benefits. She ceased work altogether in April or May 1995. She has not worked since that date. Her employment has been terminated. She continues to receive worker's compensation payments. As at October 1998, the total gross compensation payments were $133,779. 6 She initially saw her solicitor on or about 1 May 1995. In one of her affidavits, she deposes to the following:- "I was advised by my solicitor that when my condition stabilised and doctors were able to assess levels of permanent disability and impairment and loss of use, I may be entitled to claim benefits under the Workers Compensation Act pursuant to Section 66 and Section 67. I was also advised that the circumstances of my accident may have involved negligence on the part of my employer but that no decision could be made with regard or to whether or not to commence proceedings until my condition had stabilised and whether or not I decided to have further operative treatment in the near future."