Sukumar v Weir Minerals Australia Limited [2019] NSWDC 48

District Court New South Wales

Medium Neutral Citation: Sukumar v Weir Minerals Australia Limited [2019] NSWDC 48 Hearing dates: 26, 27 February 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Grant leave to the plaintiff nunc pro tunc to commence these proceedings on 20 June 2018. (2) Judgment for the plaintiff against the defendant for $448,483.04. (3) Order that each party pay his or its own costs of the proceedings. (4) Grant leave to approach my Associate within 7 days if either party wishes to seek a different costs order. Catchwords: TORTS – negligence – plaintiff slipped on mixture of swarf, coolant and oil leaking from employer's machine – injury to right shoulder, lumbar spine and knee – proceedings commenced more than 3 years after date of injury – whether leave of the court should be given to bring proceedings out of time – what is fair and just in the circumstances – whether reasonable explanation for delay provided- whether defendant has suffered prejudice - s 151D Workers Compensation Act 1987

TORTS – negligence – claim for work injury damages must be referred to mediation before proceedings can be commenced – mediation unsuccessful - no mediation certificate provided – s 318A(4), 318B(2) and 318E(4) Workplace Injury Management and Workers Compensation Act 1998

TORTS – liability - negligence – contributory negligence

TORTS – damages – past economic loss – future economic loss – must have at least 15% whole person impairment – s 151G and s 151H(1) Workers Compensation Act 1987 Legislation Cited: Civil Liability Act 2002 Dust Diseases Tribunal Regulation 2013 Workers Compensation Act 1987 Workers Compensation Regulation 2016 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Egri v DRG Australian Limited [1988] 19 NSWLR 600 Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447 Itek Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Salido v Nominal Defendant (1993) 32 NSWLR 524 South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Wilkinson v Perisher Blue Pty Limited [2012] NSWCA 250 Category: Principal judgment Parties: Sundara Sukumar (Plaintiff) Weir Minerals Australia Limited (Defendant Representation: Counsel: L King SC with I Judd (Plaintiff) L Robison (Defendant)