Background
The applicant carried out employment as an adviser for the respondent. She alleged that she had suffered a psychiatric injury over a period of time between April 2019 and August 2020. This injury was said to have arisen as a consequence of inadequate psychological support or assistance from her employer, in combination with an expectation that she regularly work long hours whilst under pressure.
The applicant brought an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’), seeking leave to commence a common law claim for damages against the respondent outside of the relevant statutory time frame.
Section 31 of the Limitation of Actions Act 1974 relevantly provides: –
Section 31 Ordinary Actions
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
As identified by the Court, in order to succeed the applicant was required to identify a material fact of a decisive character that was not known to her, or within her means of knowledge, until the commencement of the year last preceding the expiration of the period of limitation, per s 31(2) of the Act.
Section 30 of the Act provides guidance as to whether a fact has the character of a “material fact”, with such facts including the fact of the occurrence of negligence, the identity of the person against whom the right of action lies, the causative relationship between the negligence or breach of duty and the personal injury allegedly sustained, and the nature and extent of the alleged personal injury, amongst others.
The applicant contended that the relevant ‘material fact’ was the contents of the opinion of the Medical Assessment Tribunal, dated 9 April 2024, insofar as it related to her poor prospects of future paid employment. Specifically, the Tribunal opined that the applicant’s capacity to undertake any form of paid employment in the future had been “extinguished”, or at least significantly reduced. It further opined that the applicant’s condition ought to be considered stationary and stable, with no further treatment being contemplated. In the applicant’s view, this was in direct contrast to medical opinion received prior to this date, which was more optimistic about her future psychological prognosis and ultimate capacity to return to work.
The application was opposed by the respondent, which submitted that there was a “constellation of information” available to the applicant prior to the expiry of the limitation period that would have led a reasonable person to institute a claim for damages. In this regard, the respondent highlighted that the applicant had retained legal representation very early in the relevant timeline, in respect of an application for review of a decision to reject her application for compensation. In the respondent’s view, it was therefore “untenable” to accept the premise that the applicant neither sought advice as to whether pursue a common law claim, nor was provided unprompted advice in this regard by her representatives, prior to the expiration of the period of limitation. The respondent emphasised that the early involvement of legal representatives meant the applicant had access to professional guidance and information that could have prompted a timely claim.
Decision
The application was dismissed, with the court hearing from the parties as to costs.
The court was satisfied that the opinion of the Tribunal, as viewed subjectively by the applicant, was material. However, it did not accept that this met the requisite standard imposed by s 31 of the Act as “the bare and essential ingredients of the cause of action were known to the applicant prior to the expiry of the ordinary limitation period; so too were the facts beyond the bare and essential ingredients of the cause of action.”
In this regard, the court concluded that the applicant, or alternatively her legal representatives, ought to have been aware of the likely effect of her condition upon her future employment landscape. Specifically, the court referenced the length of time required for the applicant to convalesce to such a point that her condition could be deemed stationary and stable, with the applicant needing to be assessed by the Tribunal on three separate occasions.
Reference was also made to the “inordinate amounts of time off” taken by the applicant between 14 April 2019 and 9 April 2024, being nearly 600 days. In the court’s view, whilst there may have been some uncertainty as to the calculation of the applicant’s precise calculation of economic loss prior to receipt of the Tribunal’s opinion, there had already been a crystallisation of the economic loss component of any potential cause of action prior to the expiry of the limitation period to a sufficient degree as to justify commencing a claim for damages. In other words, the total damages sum may not have been knowable, but the brush strokes of that damages claim were sufficiently clear well before the expiration of the limitation period. The court emphasised that the applicant’s awareness of her incapacity to work, along with early legal advice, meant that any delay in commencing proceedings could not be excused merely because the Tribunal later provided a more definitive prognosis.
In summary, the court concluded that the “materialisation of an action” against the respondent ought to have been known prior to the receipt of the Tribunal opinion as the applicant “had knowledge of all the material facts constituting her claim within time”. The Tribunals opinion, while providing a more definitive view on her prognosis, did not create a previously unknown cause of action or alter the essential facts underlying her claim.
Conclusion
The judgment serves as a reminder that ‘time is of the essence’ in personal injuries matters. A failure to act within prescribed timeframes can be fatal. For workers’ compensation claimant’s, it is important that legal advice is sought early, so as to ensure that any “essential ingredients” of a cause of action can be identified, advice as to the prospects of success of that cause of action be received, and steps taken to preserve their entitlement to damages if necessary.
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