A recent application brought by a worker in the District Court of Queensland in the matter of O’Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q) [2025] QDC 93 has failed to extend the limitation period to commence a personal injuries claim.
The decision highlights that where a worker has been provided a constellation of information, and sought appropriate legal advice, prior to the expiration of a limitation period, the worker should have known or ought to have known of the material fact.
BACKGROUND
The Applicant, Ms Barbara O’Toole, is a 66-year-old worker who was previously employed as an adviser for the Respondent, BlueCare.
The Applicant alleged she sustained a psychiatric injury during the course of her employment between 16 April 2019 and 26 August 2020. The Applicant alleged she sustained such psychiatric injury as a result of inadequate psychological support or assistance, combined with regularly working long hours for the Respondent under pressure without adequate support.
In accordance with s11 of the Limitation of Actions Act 1974 (QLD), an injured worker must commence an action for damages arising from personal injury within three years (in this case, by 27 August 2023). The Applicant did not do so. Instead, the Applicant sought an extension of time pursuant to s31(2) of the Limitation of Actions Act 1974.
Pursuant to s31(2), a party must satisfy the Court there is a material fact of a decisive character that was unknown to the Applicant until after a year prior to the expiration of the limitation period. A party must also satisfy the Court there is evidence to establish a right of action. If this is established, the court can then order an extension of one year from the date the Plaintiff had knowledge of the material fact.
Whether a material fact amounts to being of a “decisive character” rests on whether a reasonable person, knowing the material fact, and having taken the appropriate advice on the material fact, would regard the fact as showing:
- That an action would have reasonable prospects of success resulting in an award of damages, justifying bringing an action; and
- That the person bringing the action ought to, in their own interests and taking into account the person’s circumstances, bring an action.
To rely on the material fact, it is the Applicant’s responsibility to identify with specificity:
- What it says is the material fact which is relied upon;
- When the material fact became of a decisive character; and
- When the material fact of a decisive character came within the means of knowledge of the Applicant.
In this case, the Applicant had to prove that a material fact of a decisive character was not within her means of knowledge until approximately 27 January 2025 – 12 months prior to the Applicant applying to the court for an extension of her limitation period.
MATERIAL FACTS
On 10 February 2021, the Applicant lodged her application for Workers’ Compensation and never returned to the full extent of her pre-injury role. On 14 May 2021, WorkCover Queensland rejected the Applicant’s Workers’ Compensation application.
By 28 July 2021, the Applicant retained lawyers for assistance to advise and assist her in relation to the rejected application.
Prior to 28 July 2021, the Applicant was receiving medical treatment and utilising her leave entitlements
On 6 July 2022, the Applicant attended the Medical Assessment Tribunal. Within the assessment, the Applicant reportedly acknowledged that, “…her overall clinical trajectory, although associated with some improvement overtime, has plateaued, while short of where she considers her usual status and functioning to have been in.” The Tribunal opined that the further treatment was likely to significantly reduce the Applicant’s residual level of impairment.
On 24 May 2023, the Applicant attended the Medical Assessment Tribunal. The Tribunal concluded that the Applicant could work less than 20 hours per week in a less stressful position. This opinion was made as the Applicant was still employed on a full-time basis; however, she was completing her hours over seven days and could not deliver more than 20 hours per week of productive engagement.
On 4 April 2024, the Applicant attended the Medical Assessment Tribunal for the final time. On this final occasion, the Tribunal opined that the Applicant’s incapacity for work was likely to be ongoing for the foreseeable future. This was determined with the consideration of Dr Perera’s, psychiatrist, opinion that the Applicant would never be able to return to paid work and that she had, apart from three weeks of handover duties in the middle of 2023, not undertaken any paid employment.
The Applicant asserted that it was not until receiving the final opinion of the Medical Assessment Tribunal that the Applicant’s capacity to undertake any form of paid employment in the future had been extinguished, or at least, significantly reduced.
On the contrary, the Respondent asserted that there was a constellation of information prior to the expiry of the ordinary limitation period. The Respondent asserted that any reasonable person who was properly instructed would have commenced a claim for damages.
THE DECISION
The Court accepted on the balance of probabilities, the Applicant, by May 2023, had a “constellation of information.” The Court assessed whether the last assessment by the Medical Assessment Tribunal, which is relied upon by the Applicant, amounted to a material fact.
The Court found that the final assessment by the Medical Assessment Tribunal was not a material fact. Specifically, the Court found that the assessment was not a “necessary ingredient” and that “there was a crystallisation of the economic loss claim prior to the final tribunal assessment.”
The Court concluded that the final assessment, “added little, if anything, to the constellation of information that the applicant already had, and certainty which was already within her means of knowledge.“
In reference to the Applicant’s psychological injury, the Court considered that just because the Applicant did not know she could bring a claim prior to the expiration of the limitation period, with the justification that she had a desire to resume full-time duties following efforts at rehabilitation, was not enough to grant the Application.
OUTCOME
This case demonstrates that while the courts recognise psychological injuries and an injured workers’ desire to return to work, it also emphasised the importance of the Applicant’s actual knowledge of the materialisation of a potential action and to take steps to commence the claim.
This article was written by Paralegal, Claudia Finch