Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189

District Court New South Wales

Medium Neutral Citation: Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189 Hearing dates: 15, 16, 21, 22 & 26 August 2013 Decision date: 27 August 2013 Before: Neilson DCJ Decision: I grant leave to the plaintiff to commence proceedings in this Court pursuant to section 151(2) of the Workers Compensation Act 1987 on 9 May 2012 I order that the plaintiff pay the defendant's costs of the notice of motion Catchwords: CIVIL - Personal injury - Workers compensation - Limitation period - Plaintiff commenced proceedings against defendant for workplace related injuries - Defendant relies upon s 151D in defence to whole of claim - Plaintiff brings notice of motion seeking leave to continue proceedings - Question whether three year limitation period had expired - Whether limitation period runs from accrual of cause of action or date of injury of plaintiff - Question of when plaintiff became aware she was required to seek leave to commence proceedings against former employer at common law - Question of whether injuries suffered were "a result of the nature and conditions of the plaintiff's employment" - Whether type of work which plaintiff did for earlier consecutive employer caused or materially contributed to plaintiff's injury - Whether defendant prejudiced by fact that ability to pursue cross-claim against earlier employer is negated because records either lost or destroyed - Evidence of witnesses as to system of work at defendant's premises - Whether defendant prejudiced by effluxion of time and evidentiary deficiencies - Question of delay since defendant's insurer declined workers compensation claim and plaintiff's commencing a common law action - Issue of conduct of plaintiff's solicitor Legislation Cited: Workers Compensation Act 1987 s 151D Workplace Injury Management and Workers Compensation Act 1998 s 318 Cases Cited: Afarin v Excelior Pty Limited [2013] NSWDC 65 Benton v QBE Workers Compensation (NSW) Ltd [2013] NSWDC 107 Braserio v Zodhope Pty Ltd (Sorby DCJ, unreported, 28 March 2013) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Creevey v Barrois [2005] NSWCA 264 Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 GIO General Limited v Love [2009] NSWCA 269 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 Opoku v P & M Quality Smallgoods Pty Limited & Ors [2012] NSWSC 478 Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71 Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253 The Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347 Simpson or Thom v Sinclair [1917] AC127 at 192; (1917) 10 BWCC 220 at 235 Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 Category: Interlocutory applications Parties: Heather Feltham (Plaintiff) Workers Compensation Nominal Insurer (Defendant) Representation: Mr J Wilson (Plaintiff) Ms M Dulhunty (Defendant) Stacks/The Law Firm (Plaintiff) DLA Piper (Defendant) File Number(s): 2012/147664