NSW Caselaw
Reported Decision: 74 NSWLR 229
New South Wales Court of Appeal
CITATION: Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326
HEARING DATE(S): 16/04/08 [then written submissions]
JUDGMENT DATE: 28 November 2008
JUDGMENT OF: Beazley JA at 1; Young CJ in Eq at 102; Grove J at 186
1. Leave to appeal granted. 2. Notice of appeal to be filed within seven days. 3. Appeal allowed. DECISION: 4. Orders of Balla DCJ set aside. 5. In lieu, order that the opponent's claim for work injury damages be dismissed. 6. Order that the opponent pay the claimant's costs of the appeal. 7. Order that the opponent receive a certificate under the Suitors' Fund Act 1951.
CATCHWORDS: WORKERS COMPENSATION- Opponent worker claims work injury damages- Opponent did not make a claim for lump sum compensation before or at the same time as required by s 280A WIM Act 1998- Whether primary judge in error in finding that the opponent did not have to comply with s 280A and Ch 7 procedural provisions because he had no entitlement to lump sum compensation- Whether primary judge in error in finding that in any event, the opponent had abandoned any such lump sum claim- Held that in the light of Sch 6 Pt 18C Workers Compensation Act, Ch 7 procedural provisions apply equally to existing claims prior to 2001 amendments- Legislative scheme is focussed on the making of a claim, rather than on one's entitlement or likelihood to succeed- Section 280A acts as gateway to ensure work injury claims cannot succeed unless the plaintiff has suffered permanent impairment in excess of 15%- Statutory obligation to make a claim cannot be avoided by abandonment.
Interpretation Act 1987, s 35 Statute of Frauds 1677 (Eng) 24 Car II c 3 LEGISLATION CITED: Workers Compensation Act 1987, ss 2A, 66, 67, 149, 151, 151A, 151B, 151C, 151D, 151DA, 151E, 151F, 151G, 151H, 151L, Sch 6 Pt 18C cl 8 Workers Compensation Legislation Amendment Act 2001 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 4, 7, 41, 43, 44, 45, 47, 250, 251, 259, 260, 261, 262, 263, 280A, 281, 282, 283, 285, 286, 312, 313, 314, 315, 318A, 318D, 320, 321, 322, 323, 325, 326
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