A recent decision by the Queensland Court of Appeal in Star Aged Living Limited v Lee [2024] QCA 1 shows the approach taken by the Courts when considering material facts and prejudice in an Application to extend the limitation period under Section 31(2) of the Limitation of Actions Act 1974 (Qld) (LAA).
Background
Ms Lee was 30 years old and working as a nursing assistant at an aged care facility at the time of the injury. She was employed by Star Aged Living Limited (the Employer) and had been employed with them since April 2014, with the incident occurring on 19 December 2015 during her first shift back from maternity leave.
She alleged the back injury occurred when she was working with colleagues to assist with moving residents, with said colleagues telling her there were no slide sheets to assist in moving the residents. As Ms Lee did not know where to find slide sheets, she moved the residents without them and began to experience back pain. Ms Lee also alleged the beds were too low and she was working with a poorly trained colleague, who she could not identify.
Ms Lee alleged she sustained the following injuries:
(a) Disc protrusion at L4/5 causing cauda equina syndrome;
(b) Incisional hernia following corrective surgery;
(c) Adjustment disorder with mixed anxiety and depression.
She had her first surgery on 4 January 2016 and successfully applied for WorkCover on 11 January 2016. She had a further surgery on 27 March 2019 and developed a sacral end fracture and hernia.
Ms Lee did not return to work after the incident. Her injuries were so debilitating that around 2016 Ms Lee’s husband resigned from his job to become her full-time carer.
Ms Lee told the Court her parents wanted her to speak to a lawyer 1-2 years after the incident, stating “because they thought that it may have been negligent that reports went missing” and “[t]hey also expressed concern to me that my diagnosis and hospital admissions had been mismanaged”.
She googled a local solicitor and was told making a claim against a large hospital would be too hard but was not given any advice about time limits. She could not recall who the solicitor was.
Ms Lee did not try to contact a lawyer again until December 2019. She found a lawyer via a Facebook page, with urgent steps being taken by the lawyer to lodge a Notice of Claim for Damages in early January 2020. Miss Lee told the court that she did not seek advice earlier because she was “inexperienced with court processes, litigation and the law generally.” She said that she “did not understand what a statutory claim with WorkCover and a personal injury claim for damages were” and was not aware of any limitation period for bringing a claim.
Material Facts of a Decisive Character
A Claimant can extend a limitation period if they can rely on a material fact of a decisive character which was not within their means of knowledge until later than one year before the limitation period expired.
Ms Lee’s limitation period expired on 19 December 2018.
Ms Lee relied on three material facts that she said were not within her means of knowledge until after the expiry of the limitation period had expired.
Her Honour, Chief Justice Bowskill, noted in the Court of Appeal judgment:
(a) first, she “realised subsequent to back surgery on 27 March 2019 that it was unlikely that she would be able to work in any capacity.”
(b) second, that she learned that her pain symptoms after the surgery on 27 March 2019 were the result of a sacral end plate fracture which was a known complication of the lumbar fusion which was undertaken in 2016, to treat the original back injury from 19 December 2015, and not because of medical negligence; and
(c) third, that she learned that her cause of action was “commercial” because there was a significant component of her impairment that was caused by the 19 December 2015 incident, as opposed to being related to and caused by preexisting degeneration in her spine.
The primary judge found for Ms Lee and allowed the extension of time.
On appeal, the Employer submitted the primary judge erred in failing to find Ms Lee had within her knowledge, by the expiry of the limitation period on 19 December 2018, a “critical mass of information” sufficient to inform her to bring a damages claim.
Ms Lee maintained her material fact of a decisive character was the second surgery in March 2019 where she had an understanding that she would be permanently unfit for work as an assistant in nursing. Prior to this time, she said she did not read most of the reports obtained by WorkCover as she did not think they would be relevant for her to consider other than one report of 23 October 2017 which was to determine her percentage impairment. This was relevant to WorkCover’s decision as to whether it would continue paying her weekly benefits.
The Court of Appeal found Ms Lee had within her knowledge, prior to the end of the limitation period, a “critical mass of information” which was sufficient to justify bringing the action. This also meant that if Ms Lee had sought legal advice prior to the limitation period expiry date, she would have been advised to take urgent steps to protect her rights. Therefore, there was no “material fact” after the limitation period which would have added to her knowledge relevant to bringing a claim. The primary judge’s decision to allow the extension of the limitation period was set aside.
This case demonstrates if there is a “critical mass of information” available to a Claimant before the limitation period expires, they need to take steps to protect their legal rights. It is also a reminder for Claimants to read and seek to understand medical evidence in relation to their injury before the end of the limitation period.
This article was written in collaboration with Associate Tabetha Hilliard.
