McCarthy v Coles Supermarkets Australia Pty Ltd
[2024] NSWDC 63
At a glance
Source factsCourt
District Court of NSW
Decision date
2024-02-29
Source
Original judgment source is linked above.
Judgment (12 paragraphs)
JUDGMENT
- By Notice of Motion filed on 13 December 2023, Ms McCarthy ('the plaintiff') has applied for leave, under s 151D of the Workers Compensation Act 1987, to commence proceedings in negligence, seeking damages against Coles Supermarkets Australia Limited ('the defendant'), more than three years after the date of the incident which would form the basis for the proceedings. A pre-filing statement was served on 26 April 2023 and the Statement of Claim in the matter was filed on 15 August 2023.
- The plaintiff was employed by the defendant in a supermarket in Queanbeyan, New South Wales when, on 1 April 2016, at about 9:45pm, it is alleged that it was necessary for her to walk through an area in which a cleaner had poured water containing detergent and, possibly, other cleaning chemicals. The plaintiff alleges that she slipped and fell whilst walking through the area, injuring her left hip and her lower back.
- The defendant opposes the plaintiff's application for leave to commence proceedings out of time.
Workers Compensation Act 1987 s 151D
- The Workers Compensation Act 1987 provides, in s 151D and s 151DA: 151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned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 more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017. 151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D - (a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or Note - Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D. (a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or (a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or (a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or (b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current. (2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first. (3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act. (4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker. (5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the medical assessor has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable. (6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.