The decision of District Court Judge McGill SC in Engeler v State of Queensland [2017] QDC 253 starts: “It was a dark and stormy night, and the Plaintiff was travelling across Moreton Bay…”
The Plaintiff, Ms Engeler, suffered injury in the course of her employment on 18 October 2013 when she was thrown to one side in a boat struck by a wave.
Ms Engeler commenced proceedings against her employer and the operator of the boat after the primary limitation period expired.
The court did not allow Ms Engeler to continue her claim against the employer, but allowed the claim against the boat operator to continue.
Claim against the employer
Section 302(3) of the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA) extends the primary limitation period to enable proceedings to be commenced 60 days after the Compulsory Conference. Therefore, the limitation period which expired on 18 October 2016 was extended until 21 July 2017.
Unfortunately, proceedings were not instituted until after that date on 28 July 2017.
Ms Engeler’s solicitor (an interstate practitioner) relied upon the assertion of the solicitor acting for the boat operator that “the Plaintiff now has until 4 August 2017 to file court proceedings in this matter”.
The employer’s solicitors took the point that the proceedings had been filed out of time against the employer and applied for summary judgement under Uniform Civil Procedure Rule 293.
Ms Engeler submitted that the 60 day period after the Compulsory Conference did not in fact start to run until the Written Final Offers made at the Compulsory Conference expired, which were open for a minimum of 10 business days.
The court rejected that argument and therefore Ms Engeler was not able to continue her claim against her employer.
The court specifically observed that if the Plaintiff’s solicitor was led astray by a comment made by the boat operator’s solicitor, this was no basis for relief against the employer.
Claim against the boat operator
Ms Engeler had better luck in her claim against the boat operator and allowed that claim to continue.
Ms Engeler had already received a court Order extending the limitation period to 60 days after the Compulsory Conference (much to the same effect as section 302(3) of the WCRA).
The court observed that the extension of the limitation period to bring the claim against the boat operator under the Personal Injuries Proceedings Act 2002 could be further extended and considered issues relevant to the discretion it might exercise.
Of course, the fact that Ms Engeler’s interstate solicitor was told by the boat operator’s solicitor that he had more time to file proceedings was very relevant.
The court found “had it not been for the solicitor’s mistake in the letter, and the Plaintiff’s solicitor’s reliance on it, there is no reason to think that the movement of the Plaintiff’s solicitor towards commencing a proceeding within time would have been unsuccessful.”
Viable contribution claim
The fact that the court did not allow Ms Engeler to continue with her claim against the employer may ultimately have little detrimental effect against the Ms Engeler.
The court observed that it was still open for the boat operator to claim contribution against the employer. It appears the boat operator and employer were potentially each jointly and severally liable for damages so that if Ms Engeler succeeds in her claim against the boat operator, she would nevertheless be entitled to her full quotient of damages to be paid by either or both of her employer and boat operator.
Therefore, in the end, to borrow another famous quote, the Application brought by the employer was probably “much ado about nothing”.
