The respondent, Nancy Fay Lee, alleged that on 19 December 2015 she injured her back whilst at work as a result of the negligence of her employer, Star Aged Living Limited, the appellant.
The respondent did not consult a lawyer until December 2019, some four years after the subject incident, and a year after the expiry of the three-year limitation period for a claim for damages. The respondent’s solicitors urgently lodged a notice of claim pursuant to s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Thereafter, proceedings were commenced in the Supreme Court in September 2020.
Application at First Instance
In September 2021, the respondent made an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’), for an extension of the limitation period, on the basis that were material facts of a decisive character relating to her right of action, which were not within her means of knowledge until such time that the limitation period had expired, and that justice was best served by extending the limitation period. There were three “material facts” that the respondent relied upon in support of the application: –
- That she “realized subsequent to back surgery on 27 March 2019 that it was unlikely that she would be able to work in any capacity”;
- That following the abovementioned surgery, she learned that her pain symptomology after the surgery were the result of a sacral end plate fracture which was a known complication of a lumbar fusion undertaken in 2016, to treat the original injury allegedly sustained in the subject accident, rather than medical negligence; and
- She learned that her cause of action was “commercial”, as a significant component of her impairment was referrable to the subject accident, as opposed to her pre-existing pathology.
The learned primary judge found favourably to the respondent in respect to the three “material facts”, and opined that there was no real argument that evidence existed to the establish the respondent’s right of action, save for a defence founded on the expiration of the limitation period. Accordingly, the primary judge found in favour of the respondent.
Appeal
The appellant challenged the primary judge’s conclusions about the contended ‘material facts of a decisive nature’, also contending that the primary judge erred in failing to find that the respondent had within her knowledge, prior to the expiry of the limitation period, sufficient information to inform her of a right of action against the appellant.
Appellant Challenges Judge’s Finding on Limitation Period
The Court of Appeal found in favour of the appellant, allowing the appeal.
The Court opined that there was insufficient evidence available to support the primary judge’s finding that the respondent first realised following the surgery of 27 March 2019 that a return to work in any capacity was unlikely. The court considered the “evidence” that the primary judge relied on to actually have the character of a submission made on behalf of the respondent.
The Court further concluded that the respondent had a “critical mass of information” prior to the expiry of the limitation period which justified bringing a claim for damages, and that she would have been advised to take urgent steps to commence a claim for damages had she sought advice in respect of same prior to 19 December 2018.
Accordingly, the Court concluded that the primary judge erred in finding that the respondent had satisfied the pre-requisites for the exercise of the discretion to extend the limitation period. Whilst not determinative to the appeal before it, the Court considered the issue of prejudice in respect of an application pursuant to s 31 of the Act. The Court opined that notwithstanding recent decisions pertaining to historical sexual abuse claims, such as GLJ, the concept of “presumptive prejudice by delay” remains “as relevant as it ever was”.
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