Case Update – Implications of Not Filing Pre-filing Defence within 42 Days

In Elhawat v Workers Compensation Nominal Insurer [2025], the NSW Court of Appeal has clarified the interpretation of Section 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The Court ruled that a Defendant who fails to serve a pre-filing defence within the required 42-day period is barred from raising a defence of contributory negligence in subsequent proceedings.

The Court emphasised that contributory negligence is an aspect of liability, not merely damages, and allowing such a defence would undermine the purpose of the pre-filing process, which aims to encourage full disclosure and facilitate settlement before litigation.

This decision reinforces the importance of adhering to statutory pre-filing procedures in work injury damages claims.

For legal practitioners, this case reinforces the need for diligence and organisational processes (triple check deadlines are diarised) to ensure that the procedural requirements are met to avoid any limitations on the ability to defend your client’s claim.