Mullins recently successfully defended an application brought by a worker in the Supreme Court in Queensland in the matter of Vivian v Gameover Pty Ltd [2024] QSC 263 seeking to extend the limitation period for commencing a personal injuries claim.
This decision highlights the types of issues taken into account by a Court when deciding limitation period applications and the types of matters that an insurer can rely upon in its defence.
Background
Mr Vivian was 31 years old and was working as a Go Cart Track Supervisor at the time of the injury. He was working at Gameover Pty Ltd (the Employer) and had been employed since 6 September 2015.
Mr Vivian alleges that on 21 February 2018 he suffered an injury at work in the course of refitting a go-kart with new batteries weighing approximately 20kgs each. Mr Vivian did not return to any type of work following the workplace injury. Mr Vivian alleged he suffered lumbar spine and psychological injuries as a result of the incident.
In accordance with s11 of the Limitation of Actions Act 1974, an injured worker must commence an action for damages arising from personal injury within 3 years (in this case, by 21 February 2021). Mr Vivian did not do so. Mr Vivian subsequently sought to commence a common law damages claim on 1 June 2023 – more than two years after his limitation period had expired.
Where a limitation period has expired, an injured worker can apply to the Court to extend the limitation period where a material fact of a decisive character comes within the worker’s means of knowledge after the limitation period has expired. A Court may extend the limitation period for a period of 12 months from the date of that material fact.
In Mr Vivian’s case, he needed to prove that a material fact of a decisive character did not come within his means of knowledge until after 1 June 2022 – i.e. 12 months before he commenced his damages claim.
The Material Fact
Mr Vivian sought to rely on the opinion of a Neurologist (Dr Todman) on 8 December 2022 as the material fact of a decisive character. Mr Vivian claims this was the first time that he had been advised that combined physical and psychological injuries would preclude him from working, and it was not until this time that he realised the injuries were far more serious than he appreciated. Mr Vivian claimed it was not until he received Dr Todman’s report that he became aware that if successful, his negligence claim would probably result in a substantial award for damages.
The Applicant's Problems
Mr Vivian faced a very significant issue in advancing his argument – in March 2022, he had made two (2) applications for Total and Permanent Disability benefits to superannuation providers declaring he was unable to return to work in any capacity as a direct result of the injuries.
A further issue was that Mr Vivian was assessed by several specialists throughout the WorkCover statutory claim and TPD applications, which culminated in various contradictory medical opinions as to whether Mr Vivian’s injuries were stable and stationary and whether he could return to work. He claimed that as a result of the contrasting opinions, he became confused and held out ‘hope’ that if he could be ‘fixed’ he would be able to return to work.
The arguments that our firm ran were that (a), Mr Vivian knew he could not return to work as early as March 2022 and (b) Dr Todman’s opinion was simply one more opinion amongst a number of differing opinions.
The Decision
The Court accepted that on the balance of probabilities, at least from the time of the Total and Permanent Disability Applications in early March 2022, Mr Vivian knew or ought to have known:
- That he had combined physical and psychological injuries as a result of the 2018 incident;
- That the treatments undertaken had not helped;
- That he continued to experience pain and could not work;
- That the combined injuries likely precluded Mr Vivian from working again in any capacity; and
- That he did not plan to try and return to work.
Her Honour formed the opinion, in Mr Vivian making the TPD applications:
- He did so accepting, at least, the medical advice of his General Practitioner;
- He had legal advice at least in respect of the Qsuper TPD application;
- He accepted he had been unable to return to work since the 2018 incident; and
- He was unable to return to work in any capacity.
The Court found that in March 2022, Mr Vivian already had, within his means, knowledge of a “critical mass of information” that was sufficient to justify bringing an action prior to the relevant date.
The Court found that Dr Todman’s opinion did not constitute a material fact of a decisive character because his opinion was not substantially different from several previous expert opinions.
Her honour Justice Williams dismissed the application of Mr Vivian.
Outcome
This case demonstrates that where there is a “critical mass of information” available to a worker before a limitation period expires, they need to take steps to protect their legal rights – especially in the context of concurrent TPD/superannuation Applications relating to the same injuries.
This article was written by Partner, David Isaac, and Associate, James Tregenza.
