In the recent decision of Donoso v Blacktown City Council  NSWDC 656, the Court granted the plaintiff leave to commence proceedings against his former employer, in which the statutory limitation period had expired. The injury occurred when the applicant was working as a cleaner when a table fell from a stack of tables and struck him, causing injuries to his wrist, shoulder, and head. The proceedings were commenced just over a year after the expiration of the limitation period, with the applicants counsel identifying a period of 6 to 7 months for the delay, in which the court stated at  as being: ‘not an overly substantial period of delay’.
This statutory limitation period is found in s151D of the Workers Compensation Act 1987 (NSW), and unless leave is granted by the court, a claim for work injury damages cannot be commenced following a period of three years after which the injury was received.
The court discussed principles that are applicable for applications of this nature, which are largely guided by the decision of Gower. As per Abadee DCJ at :
‘The main considerations in the application, apparent from Gower, concern whether adequate explanation has been given for the delay (including whether the limitation period has been deliberately run down), the apparent strength of the case, and the extent of actual prejudice to the respondent (some prejudice being presumed). It is trite that the applicant carries the onus of proving the entitlement for leave.’
When discussing the principles above, His Honour found that the applicant’s submissions amounted to a satisfactory explanation of the delay, and leave was granted. It is noteworthy that the Court took into consideration the fact that the respondent had been put on notice in regard to the medical history of the applicant for a significant time before the commencement of the proceedings. This is important, not only in terms of the urgency required of plaintiff firms in workers compensation matters, but additionally, noting the plaintiff can give notice of a workers compensation claim prior to the assessment of 15% whole person impairment. Whether formally, or informally on the condition that the threshold is satisfied.
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
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