Kalecinski v Mercy Community Case Background: Employment Injury Claim
The plaintiff was employed by the defendant as a Maintenance Assistant between February 2017 and August 2019. The plaintiff alleged that he sustained a back injury on 18 May 2018 while lifting a heavy tent in the course of his employment.
The plaintiff lodged an application for compensation on 20 July 2018. The application was rejected by WorkCover Queensland (‘WorkCover’) on 22 August 2018, advising the plaintiff that he had the right to apply for a review of the decision by the Workers’ Compensation Regulator. The plaintiff exercised this right, and the Regulator confirmed WorkCover’s decision on 8 January 2019. The plaintiff did not appeal the Regulator’s decision to the Queensland Industrial Relations Commission (QIRC), as his solicitors advised that they would require “substantial funds” to act on his behalf in relation to the matter, which the plaintiff did not have available to him.
The plaintiff pursued further investigations regarding his injury and was advised on 25 May 2022 by his treating specialist that he was suffering from a permanent right foot drop, referable to nerve damage said to have resulted from the workplace incident on 18 May 2018. This diagnosis was confirmed by a separate specialist in October 2022.
On 7 December 2023, the plaintiff filed a claim in the Supreme Court seeking almost $2,000,000.00 in damages. In response, the defendant filed an application on 17 January 2024, seeking orders under r 16 of the Uniform Civil Procedure Rules 1999 striking out the claim and statement of claim. Subsequently, the plaintiff filed an amended claim and statement of claim, which failed to plead facts necessary to constitute a cause of action in negligence.
The defendant opposed granting the plaintiff leave to remedy the deficiencies in the amended statement of claim. It sought orders that the statement of claim be struck out and the claim set aside. The defendant submitted that it was “legally impossible” for the plaintiff to succeed given his non-compliance with various requirements imposed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the WCRA’). Additionally, the defendant argued that the plaintiff was time-barred by operation of s 11 of the Limitations of Actions Act 1974 (Qld) (‘the LAA’).
Regarding the time limitation issue, the plaintiff submitted that he should be granted an extension under s 31 of the LAA, as he had received new medical evidence that was not part of the original claim, namely, the specialist opinions received in May and October 2022.
Decision
Regarding the time limitation issue, Crow J noted that the specialist reports were received more than twelve (12) months before the claim was filed on 7 December 2023. The court opined that even if this evidence constituted a material fact of a decisive nature, the plaintiff could still not succeed, as the evidence was received more than twelve (12) months before he commenced his cause of action, which was inconsistent with s 31(2) of the LAA. The court further noted that there was not “the slightest hint” that any other material fact existed, highlighting that the plaintiff’s submissions and affidavit demonstrated his knowledge of:
a. The fact of negligence;
b. The identity of the person against whom the right of action lay;
c. Causation; and
d. The extent to which his injury was caused by the defendant’s negligence.
Accordingly, the court concluded that the time limitation defence was an “insurmountable barrier” to success, making it inappropriate to grant the plaintiff leave to amend his claim and statement of claim.
The court further found that the plaintiff had completely failed to comply with s 237 of the WCRA, describing this “infirmity” as incurable since the only remedy, an appeal to the QIRC, was no longer available, as the time limit for such an appeal had expired on 6 February 2019.
The court ordered that the plaintiff’s claim be set aside.
