Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.