The decision in Abreu v Thomas Peacock & Sons Pty
Ltd  WADC 31 was summarised in our article of 19 April
The decision is currently being appealed to the Full Court of
the Supreme Court; we highlight below the implications of that
decision in the event the Appeal is upheld:
In limited circumstances in which the former Section 93K(4)
(before the recent amendments of 31 August 2011) of the
Workers' Compensation and Injury Management Act 1981
(WA) would apply, that section operates as an independent
limitation period and ousts the three year time period requirement
provided for under the Limitation Act 2005 (WA);
As such, a worker would be entitled to satisfy the provisions
of Section 93K(4) at what appears to be any time after the injury
and then file a writ of summons, provided they have complied with
the requirements of the former section;
Importantly Section 93K(4) has subsequently been amended so it
is unclear if the Abreu decision would apply to the new
requirements relating to seeking an award of common law
We are currently acting in a another matter for a WA self
insurer in an application for summary judgment in the District
Court at Perth in relation to a worker's writ of summons which
was filed prior to her complying with Section 93K(4), that is,
before she made a valid election to retain the right to seek
The argument is that the action should be dismissed as a Court
does not have jurisdiction to award damages and thus the action
would fail at trial; further the 3 year limitation period has
Abreu and the matter we are acting on outlined above will shed
light on the implications and application of the "new"
Section 93K(4) as well as the implications of that section in its
We will keep you updated as to further developments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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