In a recent decision of Milling v Fraser Coast
Regional Council  QDC 291, McGill DCJ granted an injured
worker an extension of time under section 31 Limitation of Actions
Act 1974 ('LAA') on the basis the 'worthwhileness'
of the claim was only known to the worker when his employment was
terminated outside of the limitation period.
Mr James Milling, a former carpenter of the Fraser Coast
Regional Council, alleged he suffered low back injuries during the
course of his employment from 26 April 2006 through to 2013 when
undertaking heavy manual handling and other strenuous work. He
required time off on two occasions, but was cleared for normal
duties on both occasions and experienced only mild restrictions in
his work capacity.
After starting to receive assistance with heavy duties for the
first time in July 2014, Mr Milling consulted a solicitor. He
subsequently issued a Notice of Claim under the Workers
Compensation & Rehabilitation Act on 17 December 2014. He
was assessed by a doctor on 5 February 2015, and terminated on 5
October 2015 due to work incapacity.
In assessing the discretion to extend the limitation period
under s.31 Limitations of Actions Act, McGill DCJ
confirmed a material fact of a decisive character is not limited to
questions of whether a right of action has a reasonable prospect of
success, but whether it would result in an award sufficient to
justify the bringing of the action.
In assessing the economic viability of the claim, McGill DCJ
noted the legislative restrictions restricting the award of damages
under the WCRA. His Honour emphasised that even if the applicant
were to be successful in his claim they would likely be liable for
their costs due to his modest impairment, which would need to be
offset by a significant award of damages such as to make the claim
worthwhile. Although McGill DCJ did not indicate a pecuniary
threshold for an award of damages which would make a claim
worthwhile, he nonetheless was satisfied the Respondent's
estimate on the claim of $50,000.00 would justify the bringing of
His Honour further rejected the Respondent's argument Mr
Milling's application should be dismissed due to his failure to
take reasonable steps to pursue a claim which would have alerted
him to the material fact prior to the expiration of the limitation
period. In making this determination, McGill DCJ affirmed the test
is to be applied to a person in the plaintiff's position with
their background and understanding. Although Mr Milling had
experienced some limitations in performing work tasks upon
returning to work, he had been able to return to his full
employment duties and reasonably believed his symptoms would
improve. Further, there was no evidence the Applicant knew his
employment was significantly at risk during the limitation period,
a factor which significantly contributed to the assessment of
quantum to make the claim 'worthwhile'. Given such standing
during the limitation period, McGill DCJ found it was reasonable
that the Applicant had not sought advice into his legal
This decision affirms the caution Local Councils should exercise
when considering terminating or other varying the employment of an
worker previously injured at work, even when commenced outside of
the 12 month protection period afforded by section 382B WCRA. In
such cases, Councils should ensure workers are made well aware in
advance that Council would be unable to accommodate the worker in
the event of a longstanding inability to perform all of the
inherent requirements of the role.
The comments of McGill DCJ suggest Council may be afforded some
protection by the costs and damages provisions of the WCRA, and
that any change in the workers' circumstances which would
consequently be limited by such provisions cannot form the basis of
an application to bring a claim beyond the limitation period.
Nonetheless as evidenced by the relatively modest quantum in this
case, all but the most limited cases would invariably overcome such
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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