Mechanic Wins Injury Damages Claim Even Though Pursued Claim out of Time

PUBLISHED 08 Feb 2013

Our client had sustained serious injuries during the course of his employment as a mechanic with a reputable car retailer in the Highlands. The injury sustained was a long time ago being in April 2001.

To pursue a common law negligence claim, a worker is required to establish an impairment level of 15% whole person impairment (WPI). However, the workers compensation insurer had not conceded that our client established the necessary threshold of at least 15%WPI.

In order to have this very issue determined, we had made an Application in the Workers Compensation Commission solely in relation to a threshold dispute. An assessment with an Approved Medical Specialist (AMS) was organised and after viewing all relevant medical evidence, statements and other necessary information we had submitted, AMS determined that our client did have an impairment level satisfying the threshold of 15%WPI.

Our office received this in early November 2011 so we immediately commenced the process of pursuing a work injury damages common law claim for negligence. The injury initially occurred in 2001 so considering the extensive delay in pursuing the claim it was important to act quickly .

There is a legal requirement that Common Law negligent claims be commenced within 3 years from the date of injury. In this instance it was already over 10 years.

The obvious dispute that arose was the failure to prosecute a claim within the required 3 year limitation period. Furthermore, the insurer disputed the claim as they say they were prejudiced due to the extensive delay. Their argument is that due to the extensive delay, they are unable to obtain appropriate evidence to defend the claim.

The claim was progressed as quickly as possible despite ongoing disputes and objections from the insurer. Eventually, the parties agreed to a mediation which took place in January 2013 and successfully resolved for a figure of $237,500.00.

A very satisfactory result considering the claim’s history and difficulties including the extensive delay in commencing a claim, doubts about liability on negligence and the insurer’s hard stance on defending. With perseverance and knowledge in getting around all hurdles, we had achieved a very successful outcome, an outcome which in normal circumstances would not have been possible.

Not withstanding difficulties that may arise we at Gerard Malouf and Partners Workers Compensation Lawyers ensure that we are pro active and fight to get the best possible result for our clients. In this particular instance our lawyer Mr George Cham maintained an aggressive and positive approach  which resulted in a great result for our client.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.