Australia: Welcome decision for employers as worker's late claim for damages is rejected - 27 January 2016

Last Updated: 28 January 2016
Article by Robert Tidbury

In the recent decision of Dent v Langs Building Supplies Pty Ltd [2015] QSC 368, the Supreme Court of Queensland dismissed a worker's application for an extension of the statutory limitation period in respect of her belated claim for damages, arising from personal injuries allegedly sustained in her employment at the respondent's building supplies business.

Here, Partner Robert Tidbury and Law Clerk Bradley McNamara provide a summary of the Court's decision.

Facts

Langs Building Supplies Pty Ltd (LBS) employed the plaintiff, Christine Dent, as a sawyer between 2000 and 2011.  On 16 June 2011, Ms Dent suffered a back injury whilst putting on her backpack at work, reportedly feeling 'immediate sharp pain' as she did so.  Since this time Ms Dent has been unable to return to work and has become dependent on full-time care.

Prior to her injury in June 2011, Ms Dent reported suffering several other work related back injuries whilst employed by LBS.  Reports of such injuries were made in July 2007, February 2008 and December 2009.  Additionally, Ms Dent had suffered minor injury to her back in a motor vehicle accident in December 2008.

Shortly after her work injury in June 2011, Ms Dent was made redundant from her position at LBS due to a downturn in business.  Scans of Ms Dent's back at that time revealed disc bulges, nerve compression and facet joint arthritis.  As a result of these scans Ms Dent's doctor referred her to an orthopaedic surgeon, advising her that she would not be able to search for new employment at that time.  In July 2011 Ms Dent began receiving a Disability Support Pension.

In the ensuing period which exceeded two years, Ms Dent frequently visited doctors and psychologists reporting debilitating back pain.  However, during these visits she appeared to remain hopeful of returning to work after her referral; making remarks to the effect that she had intentions to undertake work that wouldn't require her to stand, and that she would require specialised footwear upon her return to work.

As a result of her 2011 referral, Ms Dent saw an orthopaedic surgeon in August 2013.  The surgeon reported that he 'did not think surgery was likely to improve her poor level of impairment or disability'.  An MRI taken shortly thereafter revealed numerous irregularities in Ms Dent's back including loss of disc height, disc bulges, disc protrusions, and compressed nerve roots.  At a second appointment with another orthopaedic surgeon in September 2013, the surgeon reported that her condition 'could only be conservatively managed' rather than surgically improved.

Following her appointments in August and September 2013, Ms Dent contacted her solicitors.  Investigations undertaken on her behalf in April 2014 revealed that her symptoms were attributable to her injury at work in June 2011.  The primary cause of her injury was found to be the aggravation of work related back injuries stemming as far back as 2006.  The investigation revealed that improvement was doubtful, and that it was unlikely that Ms Dent would ever return to work.

In July 2014 Ms Dent's solicitors lodged an urgent Notice of Claim on her behalf with WorkCover Queensland.  However, as a period in excess of three years had passed since her injury occurred, Ms Dent's claim was barred by the Limitations of Actions Act 1974 (LAA).  Therefore Ms Dent made an application pursuant to section 31 LAA for an extension of the limitation period.

To satisfy the statutory requirements Ms Dent needed to demonstrate firstly, that her delay was due to the emergence of a material fact which was of a decisive character to her claim.  Secondly, she needed to show that this fact was not within her means of knowledge until more than two years after her injury occurred.  It was Ms Dent's contention that she did not understand that she was permanently disabled and unable to return to work until her appointments with the orthopaedic surgeons in August and September 2013, and that this was a material fact that was decisive to her claim because it alerted her that she should seek damages for her injuries.

Whether or not Ms Dent's explanation satisfied section 31 LAA was the issue in these proceedings.

Decision

The presiding Judge, Justice Byrne, found that the evidence showed Ms Dent was unaware of the permanent nature of her injury until her appointments in August and September 2013 and that this state of affairs constituted a material fact.  His Honour was not convinced that this material fact was of a decisive character or that it was not within her means of knowledge prior to August and September 2013.

The Court held that for Ms Dent's lack of understanding of the nature and extent of her injury to be a material fact of a decisive character, she needed to demonstrate that prior to knowing this fact a reasonable person taking appropriate advice would not have appreciated that they ought to bring a claim for damages.  In considering this Byrne J pointed out that prior to knowing of the permanency of her injury, Ms Dent's prolonged inability to work and her significant care requirements caused her to suffer losses in excess of $70,000 over two years.  His Honour was unable to accept that taking appropriate advice, a reasonable person in Ms Dent's position would not have appreciated sooner that these considerations by themselves constituted sufficient justification to seek damages.

Justice Byrne was also unwilling to accept that the permanency of Ms Dent's injury was outside of her means of knowledge prior to her appointments in late 2013.  To be outside of her means of knowledge, it was necessary to demonstrate not only that Ms Dent did not know of the nature and extent of her injury until that time, but that she took all reasonable steps to find out her predicament prior to that point in time.  In that regard his Honour held that Ms Dent could not show that she had taken all reasonable steps to discover the full extent of her injury prior to her appointments with the orthopaedic surgeons in 2013.  This was demonstrably so because, shortly after her motor vehicle accident in 2008 she had contacted her solicitors and sought damages for the injuries she sustained in the accident.  By contrast Ms Dent had not contacted her solicitors again on a timely basis after her injury in this case, and had she again taken this reasonable step, investigations would have inevitably revealed the complete extent of her injuries far earlier than two years after June 2011.

As a result of these findings, Byrne J dismissed Ms Dent's application.

Take Away Points

  • Actions for personal injury in Queensland, including those suffered at work, ordinarily must be brought within 3 years after the injury occurred or else the action will be statute barred.
  • Where a claim is brought outside of this timeframe, the claimant will have the onus of satisfying the court that their claim could not have been brought earlier.
  • To prove they could not have brought their claim earlier, the claimant will need to demonstrate not only that they did not become aware until two years following their injury of a material fact that demonstrated they should seek damages, but that they took all reasonable steps to discover that fact prior to that time.
  • Even where the claimant satisfies the requirements in section 31 LAA, the grant of leave to bring an action for damages is still subject to the court's discretion and if the respondent to the application can establish it is materially prejudiced by the belated commencement of the action then that consideration may make the court reluctant to exercise its discretion in the claimant's favour.  

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