The Supreme Court of NSW has recently allowed a plaintiff leave to commence her claim for work injury damages 13 years after the expiry of the limitation date.
In the decision of Franco v Workers Compensation Nominal Insurer  NSWSC 915, the worker suffered her injury in the course of her work on 28 December 2003 when she bent down under a bench to retrieve drums of olives.
On 2 May 2018, a Certificate of Determination in Workers Compensation proceedings determined her as suffering from a 15% whole person impairment. Proceedings were commenced on 7 July 2019.
The defendant relied upon section 151D Workers Compensation Act 1987 (NSW), that the claim was statute barred as proceedings were being brought more than 3 years after the date of injury.
The court allowed the plaintiff leave to commence her claim for work injury damages pursuant to section 151D(2) of Workers Compensation Act 1987 (NSW).
The reasons of which were summarised at 58:
“For the foregoing reasons, and bearing in mind the four rationales for limitation periods, the Court is of a view that the circumstances of the plaintiff are a justifiable exception to the proposition that the limitation period should, prima facie, be given effect. The most important aspects of those circumstances are: the fact that the legislation precluded any claim for common law damages in workplace injury proceedings prior to 2 May 2018; the availability of a director of the then employer who is able to give evidence as to the role of the plaintiff, and the instruction and training given to shop assistants performing the function of the plaintiff; and the possible availability of other witnesses. Further, the medical issues from 2003 until the present are available to the defendant as a consequence of the workers’ compensation claims and payments.”
The decision is a curious one particularly given the recent decision of Gower v State of NSW  NSWCA 132 where the NSW Court of Appeal dismissed an appeal for an extension of a statutory limitation period to bring a claim for work injury damages 10 years after the limitation period expired.
In Gower, the appellant plaintiff was struck by a soccer ball thrown by a student at the high school where he was employed. He suffered from a psychological injury as a result. He underwent various assessments and on 13 May 2014, received a medical assessment certificate finding his degree of whole permanent impairment was at least 15%.
Proceedings were commenced and the employer relied upon s 151D of the Workers Compensation Act, a claim must be brought within three years after the date of injury except with the leave of the court. The plaintiff appealed and was unsuccessful at first instance on appeal.
The plaintiff incorrectly assumed that he could not commence proceedings until he had a medical assessment giving him a degree of permanent impairment of at least 15%. The plaintiff delayed having his degree of permanent impairment assessed. Assumedly he was waiting for his condition to stabilise.
At  White JA made it quite clear that a notice of claim can be brought of a work injury damages claim notwithstanding that the worker has not been assessed as over 15% WPI.
The recent decision of Franco does not consider Gower at all and has caused confusion in respect to section 151D of the Workers Compensation Act 1987.
It will be interesting to see whether there is an appeal.
By Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
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