The decision of Gower v State of NSW [2018] NSWCA 132 (https://www.caselaw.nsw.gov.au/decision/5b232159e4b09e996307018d) has understandably sent a few shockwaves through plaintiff law firms with workers compensation clients.

Summary
In the decision, 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.

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 permanent impartment 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 an 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 as assumedly he was waiting for his condition to stabilise.

Implications
There are three things plaintiff firms can take away from the decision:

1. Negligence investigations must be made at the workers compensation stage. You cannot allow these investigations to be done only when the claimant has reached more than 15% whole person impairment. The NSWCA considered the plaintiff’s case to be weak. By the time of the special leave application, a key witness had died and important documents had been destroyed. Had the plaintiff conducted proper investigations, obtained witness statements, which would have strengthened the case, the decision may well have been different.

2. A greater sense of urgency for workers compensation matters to reach the 15% whole person impairment threshold needs to be had. Matters cannot be allowed to drift beyond the three year limitation date.

3. A section 282 Notice can and should be given of a potential work injury damage claim prior to the claimant reaching 15%. At [104] JA White stated:

As noted above, a notice of claim for work injury damages can be given notwithstanding that the worker has not been assessed to have suffered a degree of permanent impairment of at least 15 per cent. Moreover, as adverted to below, the fact that a formal notice of claim for work injury damages can only be made if the worker is in a position to give a notice of claim for lump sum compensation, does not mean that a worker contemplating bringing a claim for work injury damages cannot give informal notice of that intention conditionally on the worker’s obtaining an assessment of permanent impairment that would satisfy the threshold imposed by s 151H. That was not done in this case. The significance of this should be considered in conjunction with consideration of the strength of Mr Gower’s claim and evidence of actual or presumed prejudice to the respondent in having a fair trial 15 years or so after the event.

By Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
Web: www.mcauleyhawach.com.au
Email: reception@mcauleyhawach.com.au

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