Mansour Taouk v Maroun Taouk & Anor (Trading as E & MT Plumbing) ABN 51 021 843 766

[2010] NSWCA 372

NSW Court of Appeal

Built by Barristers,
For Australian Law.

1. Workers Compensation
1. claim by injured worker against his former employer seeking damages for injuries sustained in a work accident - time limitation
1. leave of the court required for proceedings brought more than three years after the date the injury was received
1. inability of respondents to pursue a cross-claim for contribution against third party because the limitation period had expired

An employer's loss, through a worker's unexplained delay, of a viable and realistic claim for contribution against a joint tortfeasor under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) can constitute significant prejudice justifying refusal of leave under s 151D(2) of the Workers Compensation Act 1987 (NSW), applying [name withheld] v [name withheld].
A claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) has a different subject matter from a contribution claim under the 1946 Act. The former concerns statutory compensation paid, with a six-year limitation running from each payment; the latter concerns the employer's liability for modified common law damages. Absent evidence showing the two claims would yield materially the same recovery, an employer's failure to pursue indemnity does not show that the loss of the contribution claim caused no prejudice.
A contention that a respondent would never have pursued a contribution claim will not be entertained if raised for the first time on appeal, where the respondent might have led evidence to meet it at first instance ([name withheld] v Gundowda Pty Ltd). Absent evidence, no adverse inference arises from the respondent's failure to seek a s 151Z(1)(d) indemnity.