Background

The Plaintiff, Mr Purcell sustained a knee injury on 7 March 2013 when he slipped and fell while descending the steps of a cottage. At the time, he was employed by Primary Partners and placed to work in an area occupied and controlled by the Indigenous Land and Sea Corporation (ILSC). He had previously injured the same knee in 2006, requiring surgery, but had made a reasonable recovery.  

Following the 2013 injury, Mr Purcell underwent revision ACL reconstruction and medial meniscal repair on 12 June 2013. He returned to work within 15 months, initially as a butcher. Over the years, he experienced periodic flare-ups, but they did not cause significant impairment or financial loss. By 2017, while working as a senior station hand, he developed knee pain and a catching sensation, leading to the reopening of his statutory claim. He underwent arthroscopic surgery on 19 August 2018 and resumed work within weeks. Between 2018 and 2021, his knee remained “pretty good but not perfect,” with occasional locking but no major issues. However, in November 2021, he sought to reopen his statutory claim again due to worsening pain. Dr Lawrie advised against further surgery, attributing his condition to arthritis and wear and tear. The Plaintiff was able to reopen the initial statutory claim from 2006 relating to the original knee injury. 

Background of Purcell’s Pre-Existing Knee Injury Claim

Mr Purcell retained Solicitors on 4 February 2022. WorkCover arranged an impairment assessment with Dr Winstanley on 10 March 2022, who assessed a 19% degree of permanent impairment (DPI). WorkCover issued a Notice of Assessment offering a lump sum of $49,761. 

Mr Purcell’s solicitors advised that further medical evidence was needed to determine whether pursuing common law damages was financially viable, given estimated legal costs between $80,000 and $110,000. A supplementary report from Dr Winstanley, received on 27 June 2022, indicated that Mr Purcell would likely be unable to perform heavy work within 7 to 10 years, would require a total knee replacement, and would have a whole-person impairment of 37–50% post-surgery. Based on this report, the solicitors concluded that the claim was worthwhile. Mr Purcell obtained compliance against Primary Partners on 15 December 2022 and commenced proceedings against ILSC on 19 May 2023. Since this was outside the usual limitation period, he was required to demonstrate that a material fact not previously known came to his attention on or after 19 May 2022. 

Court’s Decision

Crow J found that the critical question was when Mr Purcell had sufficient information to realise that his claim was worthwhile. His Honour ruled that it was only upon receipt of Dr Winstanley’s supplementary report in June 2022 that Mr Purcell became aware that his injury would significantly impact his earning capacity. The respondents argued that Mr Purcell and his lawyers should have made earlier enquiries, but the court rejected this. Crow J found no evidence of prejudice to the defendants and noted that key evidence, such as the state of the stairs, remained available. The court extended the limitation period, allowing Mr Purcell to proceed with his claims against both respondents. 

Summary

The decision in this matter is a reminder of the importance of acting promptly when lodging claims for personal injury. Claims lodged outside of the prescribed time limits face hurdles in terms of the process for ensuring a claim is approved. That said, the finding of a ‘material fact’ can enable matter such as Mr Purcell’s proceed.