Kennards Hire Pty Ltd v Koufu [2005] NSWCA 413

New South Wales Court of Appeal

CITATION: Kennards Hire Pty Ltd v Koufu [2005] NSWCA 413

HEARING DATE(S): 1 November 2005

JUDGMENT DATE: 1 November 2005

JUDGMENT OF: Mason P at 1; Tobias JA at 2; Brownie AJA at 33

DECISION: Appeal dismissed with costs

CATCHWORDS: WORKERS' COMPENSATION – Claim for common law damages – Whether worker entitled to commence within 6 months of injury – Legislative objective of delaying commencement of proceedings – Exception where liability denied – Whether employer had denied liability – Whether denial "unequivocal" – Workers' Compensation Act 1987 s 151C

Motor Accidents Act 1988 LEGISLATION CITED: Workers Compensation Act 1987

Lampson (Australia) Pty Limited v Mackay [2004] NSWCA 152 CASES CITED: Sydney Ports Corporation v Collins; National Direct Imaging Pty Limited v Lamy (2003) 56 NSWLR 232 Taylor v Francoif (1990) 19 NSWLR 444

Kennards Hire Pty Limited PARTIES: Michael Koufu

FILE NUMBER(S): CA 40732/04

A: M Elkaim SC / M Gollam COUNSEL: R: R Turner SC / S Walsh

A: Lander & Rogers, Sydney SOLICITORS: R: O'Neill Marengo, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13171/01

LOWER COURT JUDICIAL OFFICER: O'Toole DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40732/04

MASON P TOBIAS JA BROWNIE AJA

Tuesday 1 November 2005 KENNARDS HIRE PTY LIMITED v MICHAEL KOUFU Judgment 1 MASON P: I agree with Tobias JA. 2 TOBIAS JA: At all material times the respondent was employed by the appellant. On 31 August 2001 he was injured in the course of that employment. He apparently made a claim for workers' compensation which was accepted by the appellant's workers' compensation insurer, NRMA Workers' Compensation (New South Wales) No 2 Pty Limited (the insurer), in a letter from the insurer to the respondent dated 18 September 2001. The author of that letter, Mr James Murphy, was described in the letter on the insurer's letterhead as a Senior Claims Officer. 3 On or about 19 November 2001 the respondent instructed Ms Tracey Lynn O'Neill of O'Neill Marengo, Lawyers, to act on his behalf in relation to the accident. She appreciated that because of imminent legislative amendments to the Workers' Compensation Act 1987 (the Act) governing modified common law damages which were to come into force on 27 November 2001, any proceedings under the existing law required the filing of an ordinary statement of claim on or before 26 November 2001. 4 Ms O'Neill was also aware of the terms of the then s 151C of the Act which relevantly provided as follows: "(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer. (2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs: (a) the employer denies all liability in respect of the injury, (b) the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted." 5 Given that less than six months had passed since the notice of the respondent's injuries had been given to the appellant (the accident only having occurred on 31 August 2001), Ms O'Neill was conscious of the fact that she could only commence court proceedings on behalf of the respondent for damages in respect of his injuries if the appellant or its insurer denied all liability in respect of those injuries within the meaning of s 151C(2)(a). 6 With this in mind and having been provided by the respondent with Mr Murphy's letter to him of 18 September 2001, she telephoned Mr Murphy on 22 November 2001 and, according to [4] of her affidavit sworn 11 May 2004 and read before the primary judge, she asked Mr Murphy the direct and specific question, "Will the insurer be admitting to breach of duty of care and negligence on behalf of the defendant?".