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Injury | Injury

Failure to seek relevant medical opinion prevents an injured worker claiming damages

The mechanics of s 31 of the Limitation of Actions Act 1974 (Qld) (the LAA) are considered in the recent decision of Macri v Stabilised Pavements of Australia P/L [2018] QDC 196.

In his application before Judge Andrews, Angelo Macri (the applicant) asked His Honour to determine whether he had a right to bring an action to claim damages for personal injury, after the expiration of the three year limitation period.

To succeed in his application, the applicant had to establish that pursuant to s 31 of the LAA “a material fact of a decisive character relating to his right of action was not within [his] means of knowledge” until after the expiration of the limitation period.

Facts

The applicant was a 38 year old fitter when he injured his right knee at work on 12 December 2011. He underwent surgery and eventually returned to work on 2 July 2012.

The applicant argued that the material fact of a decisive character was that his knee injury “…may (and likely will) prevent him from working until retirement age” and that he did not come to know this until after 11 August 2016 (the material fact). He served a notice of claim on the respondent and its insurer, WorkCover, on 11 August 2017. This occurred within the year he learned of the material fact as required under s 31(2)(b) of the LAA.

The applicant had to satisfy the Court of two critical issues, firstly that the material fact came into his knowledge after 11 August 2016, and secondly (but critically), that this fact was not within his means of knowledge to determine its decisiveness before the expiration of the limitation period on 12 December 2014.

In determining these issues, His Honour applied the subjective and objective “tests” prescribed by the wording of s 30(1)(c)(i) and s 30(1)(c)(ii) of the LAA.

Subjective test

His Honour was satisfied that in his position as a fitter, the applicant did not know in January 2013 when he consulted with his treating surgeon, Dr Watts, that he was at risk of being unable to work as a fitter to retirement age. However, during this consultation he was told that his injury was extremely serious and that it was highly likely it would deteriorate at an unknown rate. He was also advised in writing by the surgeon that he would require further surgery and that there was a concern he could not return to full duties as a fitter.

Objective test

Within the context of the surgeon’s advice, His Honour then considered whether a reasonable person in the applicant’s position had the means to determine whether or not he was unlikely to be able to work as a fitter until retirement (e.g. asking Dr Watts about this).

On the basis of the surgeon’s advice, His Honour concluded that in January 2013 had the applicant asked Dr Watts whether it was unlikely he would work as a fitter until retirement age, she would have probably said “yes” it was unlikely. Accordingly, His Honour found that the applicant had the means of finding out how his injury would disadvantage him in the long-term before the limitation period expired on 12 December 2014, but failed to take reasonable steps to do so.

His Honour determined that the applicant failed in his application and that “The Court has no discretion to extend time in this case.” He concluded that, “…the fact that the applicant did not personally know of the material fact in January 2013 means he could not appreciate then that it had a decisive character. That does not prevent the material fact within his means of knowledge from having a decisive character.

This case is a reminder that an injured worker needs to fully explore the impact of their injuries when consulting with medical providers or risk jeopardising their potential claim for damages.

This article was written by Catherine King, Associate, and Tony Rosenthal, Partner

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."