Discrete injury found to support OPT claim

02 June 2020

The injured worker brought an application for leave to start a court proceeding despite non-compliance with the pre-proceedings process under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

In issue

  • When was the over period of time injury sustained?
  • When does the limitation period for such an injury start running?

The background

The injured worker was employed as a baggage handler. He allegedly sustained an injury to his right shoulder on 26 July 2018 when lifting heavy baggage. In the course of investigating and treating his right shoulder, a number of different orthopaedic surgeons expressed different views on the diagnosis and cause of his injury.

In May 2019, an orthopaedic surgeon expressed the opinion that the right shoulder condition and ongoing symptoms were partially due to pre-existing pathology.

A Notice of Claim under the WCRA was delivered on 29 May 2019. It included a request to waive compliance on the basis that there was an urgent need to commence proceedings. The respondent declined, saying there was no urgency because the cause of action occurred on 26 July 2018 and therefore the three year limitation period did not expire until 26 July 2021.

The decision

The Court found that the limitation period for an occupational exposure injury occurring over a period of time was not determined by the date the worker first became symptomatic, but rather when the damage was caused.

For that proposition the application Judge relied upon the decision of the Court of Appeal in Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233, a decision relating to a claim for economic loss resulting from a defect in a building design. For a case involving manifestation of a physical injury see Alcan Gove Pty Ltd v Zabic [2015] HCA 33.

The evidence here was that the injured worker had performed the same work with the respondent since 2001. That supported the Court's discretion under s298 to allow the application.

So the application was granted, the effect of which was that the limitation period stopped, and the injured worker would have been permitted to bring an application to extend the limitation period required within 12 months of a material fact of a decisive character, being the opinion of the orthopaedic surgeon.

Implications for you

Where an injured worker brings a claim for an injury in the context of a pre-existing condition (whether symptomatic beforehand or not) it would be prudent to consider whether the claim will be brought in respect of a discrete event, or whether it could be extended to cover a period of time.

The impact of such an extension could be that damages are ultimately not reduced on account of any pre-existing degenerative condition or propensity, leading to a more generous award.

Torpy v Qantas Airways Limited [2019] QDC 277

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