Hughes v Impulse Entertainment Pty Ltd & WorkCover
Queensland  QDC 21
This recent case provides a definitive answer to a question that
has arisen numerous times in practice, but has never been answered
judicially: Does non-compliance with the 60 day time limit in
section 302(2) of the Workers' Compensation &
Rehabilitation Act (WCRA) prevent a claimant from pursuing a
common law damages claim where the claim has otherwise been brought
within the limitation period set by the Limitation of Actions
Act 1974 (LAA)?
The answer, put simply, is 'no'. That had also been
assumed to be the case, on the basis that a claimant could simply
serve another notice of claim and re-start the pre-proceedings
process afresh. However, two contrary arguments existed:
Re-starting the claim would be an abuse of process. Alternatively,
section 302(2) created a new limitation period, overriding the one
in the LAA.
The Court had previously considered the situation where a claim
had been brought more than 60 days after the compulsory conference
and outside the limitation period set by the LAA: Narayan v
S-Pak Pty Ltd. The Chief Justice determined in that case
non-compliance with the equivalent provision under the
WorkCover Queensland Act 1996 was fatal and the Court
lacked the jurisdiction to provide relief.
This case was complicated by the fact that it involved an over a
period of time injury. The first part of that period fell more than
three years before the date that the claim and statement of claim
were filed. The parties accepted that the first period was now out
of time, applying the principles in Narayan's case. The
defendants sought to have that part of the claim struck out.
However, his Honour Judge Robin QC was not prepared to do so,
presumably without first giving the claimant the opportunity to
apply for an extension order under section 31 of the LAA.
This decision should provide some comfort to claimants (and
their lawyers). It should also confirm the flavour of previous
advice by insurance lawyers on this point.
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There is no protection for injured workers with a partial work capacity but the employer can't provide suitable duties.
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