WorkCover successfully appeals extension of limitation period

WorkCover Qld v Lawson [2022] QCA 178

Background

Mr Lawson’s knee was injured on 13 April 1999 in the course of pushing a work vehicle to a service station.  Mr Lawson alleged the workplace was negligent because the fuel gauge was faulty, as it was stuck on full, and because there were no procedures in place for vehicle breakdowns.  Mr Lawson reported the injury to his supervisor.

Mr Lawson lodged an application for compensation which was accepted.  He underwent treatment, including surgery, in 2000, before returning to his usual work. Mr Lawson applied to re-open his statutory claim in 2005 for surgery to remove a Bakers cyst.  Mr Lawson’s own evidence was that his knee ‘was never the same again’ and required medical treatment, GP visits, time off work since, at least, the 2005 surgery.

By December 2020 Mr Lawson described the pain and swelling in his knee as becoming unmanageable.  Mr Lawson commenced receipt of job seeker payments from 30 November 2020 and contacted WorkCover Qld to re-open his statutory claim seeking treatment and an assessment of impairment.

In the course of assessing the injury for permanent impairment an x-ray obtained on 7 June 2021 identified the presence of arthritis in Mr Lawson’s knee.

Decision at first instance - 17 January 2022

Mr Lawson applied to the Supreme Court seeking an extension of the limitation period pursuant to section 31 of the Limitation Actions Act 1974 asserting that a material fact of decisive character arose on 7 June 2021.  Specifically, Mr Lawson asserted that it was not until 7 June 2021, when he was diagnosed with arthritis, that he was alerted to the fact that his knee would never improve.

The application was defended by WorkCover on the basis that:

• The diagnosis of arthritis, while a material fact, did not have decisive character as Mr Lawson had a continuum of symptoms since at least 2005 for which no action had been taken by him to commence a claim;
• Mr Lawson had knowledge of material to support having a reasonable prospect of success on an action for damages for the incident since the date of injury, or, at the latest, by December 2020 when he was unable to continue working in his chosen career and sought financial assistance from Centrelink and WorkCover;
• Discretion to extend the limitation period should not be exercised as it could not be shown that a fair trial could be had due to prejudice to WorkCover caused by the lapse of time.

Investigations undertaken on behalf of WorkCover identified that the employer ceased employing workers on 11 November 1999.  The business was sold and the company wound up by 2002.  Upon contacting the identified supervisor, that supervisor was unable to recall any injury or information relevant to the claim due to the passage of time.  A further supervisor was contacted who could not recall the incident nor the alleged fault.  The owner of the business was unable to be located and it was unclear whether he remained alive.

At first instance, the primary judge found in favour of Mr Lawson, granting the extension of time, noting that:

• The originally injury had resolved and, while Mr Lawson ‘may well have known that he was symptomatic..’, ‘..the material fact of a decisive character was not fully revealed until June of 2021’; and
• While there was prejudice to WorkCover in attempting to defend the claim due to delay, there was ‘potential for further inquiries to be made’ before a conclusion on prejudice could ultimately be reached.

Grounds of the Appeal

The grounds of appeal were:

1. The primary judge erred in finding that the original injury had resolved and ought to have found that there was a continuum of symptoms;
2. The diagnosis of arthritis was not a material fact of decisive character as there was a persistence of symptoms since the original injury which had caused economic loss over may years prior to that diagnosis;
3. Discretion to extend time should not have been exercised in circumstances where Mr Lawson had not shown that a fair trial could be had.

Decision

The Court of Appeal allowed WorkCover’s appeal, dismissing Mr Lawson’s originating application, finding:

• The primary judge’s finding that the original injury had resolved was not open on the evidence.  Instead, the ‘undisputed facts disclosed before the primary judge where that Mr Lawson had continuing symptomatology in his right knee that caused him pain over the years since 2005..’
• Mr Lawson had knowledge of sufficient facts of a decisive character to pursue a claim by no later than December 2020 when he was forced to cease work as a contractor. Mr Lawson 'did not need a diagnosis of arthritis to justify pursing a claim for damages..'. Any extended limitation period had expired and the application ought to have been dismissed.
• prejudice to the prospective defendant is to be answered by reference to the situation at the time of the application. To the extent that the primary judge's reasons suggested there may have been future opportunities to obtain evidence to overcome prejudice was inconsistent with that requirement.
• Mr Lawson bore the legal onus of showing that the discretion to extend the limitation period should be exercised in his favour. Mr Lawson failed to pursue enquiries that remained outstanding at the time of the application and it was insufficient for him to have passed on contact information to WorkCover. It was up to Mr Lawson to have made those enquiries which he failed to do.

Costs were awarded against Mr Lawson.

A number of applications by Mr Lawson seeking to adduce further evidence were also dismissed and were not relevant to the above findings.