In a recent decision of Milling v Fraser Coast Regional Council [2015] QDC 291, McGill DCJ granted an injured worker an extension of time under section 31 Limitation of Actions Act 1974 ('LAA') on the basis the 'worthwhileness' of the claim was only known to the worker when his employment was terminated outside of the limitation period.

Facts

Mr James Milling, a former carpenter of the Fraser Coast Regional Council, alleged he suffered low back injuries during the course of his employment from 26 April 2006 through to 2013 when undertaking heavy manual handling and other strenuous work. He required time off on two occasions, but was cleared for normal duties on both occasions and experienced only mild restrictions in his work capacity.

After starting to receive assistance with heavy duties for the first time in July 2014, Mr Milling consulted a solicitor. He subsequently issued a Notice of Claim under the Workers Compensation & Rehabilitation Act on 17 December 2014. He was assessed by a doctor on 5 February 2015, and terminated on 5 October 2015 due to work incapacity.

Decision

In assessing the discretion to extend the limitation period under s.31 Limitations of Actions Act, McGill DCJ confirmed a material fact of a decisive character is not limited to questions of whether a right of action has a reasonable prospect of success, but whether it would result in an award sufficient to justify the bringing of the action.

In assessing the economic viability of the claim, McGill DCJ noted the legislative restrictions restricting the award of damages under the WCRA. His Honour emphasised that even if the applicant were to be successful in his claim they would likely be liable for their costs due to his modest impairment, which would need to be offset by a significant award of damages such as to make the claim worthwhile. Although McGill DCJ did not indicate a pecuniary threshold for an award of damages which would make a claim worthwhile, he nonetheless was satisfied the Respondent's estimate on the claim of $50,000.00 would justify the bringing of the claim.

His Honour further rejected the Respondent's argument Mr Milling's application should be dismissed due to his failure to take reasonable steps to pursue a claim which would have alerted him to the material fact prior to the expiration of the limitation period. In making this determination, McGill DCJ affirmed the test is to be applied to a person in the plaintiff's position with their background and understanding. Although Mr Milling had experienced some limitations in performing work tasks upon returning to work, he had been able to return to his full employment duties and reasonably believed his symptoms would improve. Further, there was no evidence the Applicant knew his employment was significantly at risk during the limitation period, a factor which significantly contributed to the assessment of quantum to make the claim 'worthwhile'. Given such standing during the limitation period, McGill DCJ found it was reasonable that the Applicant had not sought advice into his legal position.

Comment

This decision affirms the caution Local Councils should exercise when considering terminating or other varying the employment of an worker previously injured at work, even when commenced outside of the 12 month protection period afforded by section 382B WCRA. In such cases, Councils should ensure workers are made well aware in advance that Council would be unable to accommodate the worker in the event of a longstanding inability to perform all of the inherent requirements of the role.

The comments of McGill DCJ suggest Council may be afforded some protection by the costs and damages provisions of the WCRA, and that any change in the workers' circumstances which would consequently be limited by such provisions cannot form the basis of an application to bring a claim beyond the limitation period. Nonetheless as evidenced by the relatively modest quantum in this case, all but the most limited cases would invariably overcome such threshold.

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