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Common Law Limitation Period Policy

Background

The aim of this policy is to implement a consistent approach to claims lodged outside the relevant limitation period.

Prima facie, compliance or a waiver of compliance[1] must be obtained and unless a Court makes a declaration under section 297 or gives leave under section 298 prior to the limitation date expiring, the matter becomes statute barred and the limitation date cannot be altered.[2]

The determination of this is relatively simple for a defined event, and a defence under s11 Limitation of Actions Act may be available. However, where the claimant intends to rely upon a material fact of a decisive character, this becomes a little bit more difficult.

Changes to legislation

WorkCover is working through amendments and new provisions to the Workers' Compensation and Rehabilitation Act 2003 passed by Parliament on 17 October, 2013. There are changes to provisions relating to common law and permanent impairment assessments however, the old provisions still apply to injuries prior to 15 October 2013. The amendments do not have retrospective impact for injuries prior to that date.

In recent weeks, we have seen a significant spike in the number of "urgent" NOCs that have been lodged. The majority of these were not urgent but were lodged out of a concern about the legislative amendments.

To clarify, the 'old' provisions for Urgent NOCs will still apply for claims with an injury date prior to 15 October 2013.  The following guidelines may assist with determining what should be considered 'urgent':

  • Less than one month before expiry of Limitation period – WorkCover will treat these NOCs as urgent
  • Between one month and three months before expiry of Limitation period – WorkCover may treat these NOCs as urgent pending the individual circumstances (eg. the claimant lives in a remote area making it difficult to get paperwork signed in a timely manner)
  • More than three months before expiry of Limitation period – WorkCover will send these NOCs back as premature.

WorkCover will be working with various stakeholder groups including the legal fraternity to provide more detail about the legislative changes.

WorkCover Queensland has adopted the following approaches to claims served after the limitation date has expired.

Policy

For defined events where compliance, or a waiver of compliance under s276, has not been obtained prior to the limitation date expiring and with no suggestion that a material fact exists, the Notice of Claim (NOC) should be returned to the claimant's solicitors informing them that they have not complied with s 302(1)(a) by obtaining compliance or a waiver of compliance within the limitation period, that WorkCover intends to rely on a defence under s 11 of the Limitation of Actions Act and that they should withdraw their claim on the basis that it cannot be pursued. See Handover v Consolidated Meat Group Pty Ltd.[3]

1. Court proceedings issued past the limitation period under the Workers Compensation Act 1990 (also known as the Goss Amendments)

WorkCover's policy is to rely on the limitation period defence under s 11 Limitation of Actions Act and require the claimant to either discontinue the claim or bring a s31 application.

This is subject to the claimant's solicitors submitting the proposed application and supporting affidavit for WorkCover's consideration so if there is a clear case of a material fact and no evidence of prejudice WorkCover can agree to move forward with the proceedings without a s31 application and not raise the limitation defence.

2. Discrete injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or the Workers' Compensation and Rehabilitation Act 2003 past the limitation date and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement issue and claimants requested to provide material setting out the basis of their s31 application for WorkCover's consideration within 60 days of lodgement of the NOC.

WorkCover will endeavour to inform the claimant of its attitude towards the proposed s31 application within 30 days of receipt of the material or any further particulars requested.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant will be required to bring the s31 application within 60 days of the compulsory conference.

3. Discrete injuries—urgent NOCs lodged under the WorkCover Queensland Act 1996 and/or the Workers' Compensation and Rehabilitation Act 2003 and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement issue and as part of WorkCover's conditions the claimant will be required to submit a draft s31 application and supporting affidavit for WorkCover's consideration within 60 days of the agreement pursuant to which compliance is waived and bring a s31 application (unless WorkCover indicates it is prepared to waive the limitation defence) within 60 days of the compulsory conference.

4. OPT injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003- whole claim statute barred and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation period issue will be raised as an entitlement issue. WorkCover will require the claimant to submit a draft s31 application and supporting affidavit for WorkCover's consideration within 30 days of lodgement of the NOC and bring the s31 application within 60 days of the compulsory conference.

5. OPT injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003 - part claim statute barred

Compliance will be dealt with in the usual fashion however the limitation period issue will be raised as an entitlement issue.

The parties agree to confer with respect to the medical evidence and the timing of the cause of the injury within 60 days of lodgement of the NOC. If the parties are unable to agree to the timing of the cause of the injury and/or agree that the time of causation is outside the limitation period the claimant will be required to submit a draft s31 application and supporting affidavit for WorkCover's consideration within 21 days and bring the s31 application within 60 days of the compulsory conference.

6. OPT injuries—urgent NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement issue and the claimant will be required as part of WorkCover's conditions to submit a draft s31 application and supporting affidavit for WorkCover's consideration within 60 days of the agreement pursuant to which compliance is waived and bring a s31 application (unless WorkCover indicates it is prepared to waive the limitation defence) within 60 days of the compulsory conference.

To ensure consistency, all decisions about whether or not to rely on the limitation defence will be referred to a WorkCover Queensland Customer Services Manager.



[1] Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41.

[2] S302(1)(a) WCRA.

[3] Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41.

Last updated
17 October 2017

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