A night-filler who injured his back from continuous awkward motions required of his role over the entire period of employment has succeeded in striking out a retail giant’s argument that may have sunk his claim.
Daniel Smith’s application for worker’s compensation – accepted by Woolies – referred to a discrete injury occurring at its Taigum store in March 2012.
But when his Notice of Claim for Damages was lodged, it referred to “work practices over the whole period performing night fill work” of which, the tasks referred to in the application for compensation “were representative”.
Smith’s subsequent reliance on the discrete March 2012 injury in his June 2014 lawsuit, prompted a defence from the fresh food people that because such injury (as opposed to the OPT injury) had not been part of the pre-court process, that part of the claim was invalid.
Woolies further argued at a formal mediation between the parties that – because of such non-compliance – any claim for the discrete injury was now statute-barred.
On application to strike out that defence to the $750k lawsuit as contrary to decided law, Judge William Everson agreed, noting the defence had “no arguable basis”.
He quoted colleague judge John McGill ruling in another case concerning the same grocer on an identical point that “what matters for the purposes of determining whether the injury is one referred to in the notice of assessment is whether it is the same piece of physical damage to the body which is being spoken about.”
“In circumstances where it is clear that there has only been one injury, the date stated for the injury in the notice of assessment is irrelevant.”
Judge Everson struck out Woolworth’s assertions and because “the legally unsustainable claims had no arguable basis and caused unreasonable delay” he ordered the food chain pay Smith’s legal costs on an indemnity basis.