A worker was awarded an extension of time to bring an action for injuries after he was diagnosed with arthritis to his right knee in 2021 having initially injured it during his employment in 1999.
However, WorkCover successfully appealed the decision, arguing the diagnosis was not of a decisive character given the worker’s symptoms following the initial injury which had resulted in economic loss over the years.
- WorkCover appealed the Supreme Court’s decision to allow a worker an extension of time to bring an action for injuries sustained to his right knee in the course of his employment in 1999. The appeal was advanced on the grounds that a diagnosis of arthritis in 2021 was not a material fact of decisive character given there had been a persistence of symptoms since the original injury, and that discretion to extend time should not have been exercised in circumstances where the worker failed to discharge the onus he bore of showing that a fair trial would be available to WorkCover.
The respondent was a worker who suffered an injury to his right knee in 1999 during his employment as a boilermaker with Capalaba Engineering Pty Ltd. The worker’s application for compensation was accepted and he later underwent surgical intervention to his knee prior to returning to his usual employment. The worker then applied to re-open his statutory claim in 2005 to remove a Baker’s cyst in his knee. He provided evidence that his knee was 'never the same again' and that he required medical treatment and time off work since at least 2005.
The worker continued to work full time up until December 2020, at which time his knee symptoms prevented him from continuing to work. He again sought to re-open his statutory claim, following which he received the diagnosis of arthritis in his knee in June 2021. The worker then submitted an urgent notice of claim for damages in September 2021 in relation to the 1999 injury, to which WorkCover responded by advising of their intention to rely on the expiration of the limitation period.
The decision at first instance
The worker appeared for himself before the primary judge and argued that the material fact of a decisive character only came to his knowledge on 7 June 2021 when an x‑ray of his right knee showed 'Previous ACL tunnel repair noted with moderately severe tricompartmental degenerative arthritis'.
In finding in favour of the worker, the primary judge concluded that the original injury had resolved and that a material fact of decisive character, being the diagnosis of arthritis, was not fully revealed until June 2021. The primary judge acknowledged that WorkCover would suffer 'many obvious disadvantages' and that the opportunity to make relevant enquiries had been lost, however, considered there was potential for further enquiries to be made before a conclusion on prejudice could be made.
The issues on appeal
The Court of Appeal was tasked to consider whether the primary judge had erred in finding the diagnosis of arthritis to be a material fact of decisive character. While WorkCover conceded the diagnosis was a material fact, it was submitted that it was not of a decisive character given there was evidence that demonstrated a persistence of symptoms following the initial injury which had resulted in economic loss over the years. WorkCover submitted that a reasonable person with the worker’s knowledge and in his position would have taken appropriate advice on what he knew about his continuing knee symptoms much earlier than December 2020. WorkCover also argued that discretion to extend time should not have been exercised by the primary judge given the worker had not discharged the onus that a fair trial would be available.
The decision on appeal
The Court of Appeal found the primary judge had erred in considering that the worker’s injury in 1999 had resolved. The 'undisputed facts' disclosed before the primary judge were that the worker had continuing symptoms in his knee that caused him pain since 2005 and caused him to adjust how he performed his work. The Court of Appeal considered the worker did not need a diagnosis of arthritis to justify pursuing a claim for damages in relation to the initial injury, rather that it was sufficient the worker knew the pain in his knee prevented him from working. On that basis, the Court of Appeal concluded that any extended limitation period had expired, and the application ought to be dismissed.
The Court of Appeal also found the primary judge’s reasons regarding the issue of prejudice were inconsistent with the requirement for the issue to be decided on the basis of the material before the Court. The Court of Appeal considered the worker had failed to pursue enquiries relevant to the question of the employer’s liability, and consequently failed to discharge the onus he bore of showing that a fair trial would be available to WorkCover.
Implications for you
The decision demonstrates the significance of determining when a material fact is one of a decisive character in the context of extending limitation periods. It also emphasises the importance of identifying at which point a person is deemed to have knowledge of sufficient facts of a decisive character, effectively beginning the countdown of the limitation period. The appeal decision also affirms the position that it is the applicant for the extension who bears the onus of showing that any prejudice to the respondent caused by the delay does not thwart a fair trial.