The Qld Supreme Court dismissed an application to extend the limitation period under s31(2) of the Limitations of Actions Act (Qld) on the grounds that, even if the relevant facts were of a material and decisive character, they were all within the means of the Applicant’s knowledge before the dates asserted by her.
In issue
- The main issue for determination by the Supreme Court of Queensland was whether the time for the applicant to commence proceedings claiming damages for personal injuries could be extended pursuant to section 31(2) of the Limitation of Actions Act 1974 (Qld) (the Act), when there were material facts of a decisive character within the means of her knowledge at a time earlier than that asserted by her.
The background
Ms Grapes (the applicant) was employed by the Queensland Ambulance Service (QAS) since 2007. On the evening of 2 September 2018, the applicant assisted a young boy, who had sustained significant injuries as a result of a single vehicle accident, in her capacity as a paramedic. By September/October 2018 the applicant deteriorated psychologically due to panic attacks and anxiety. During the following 6 months the applicant took over 100 hours of sick leave and continued to attend her GP complaining of symptoms of fatigue, anxiety, agitation and low moods. These symptoms then resulted in the applicant reducing her work shifts by October 2020. By the end of 2020 she realised that she had no capacity to return to work at all. By January 2021 the applicant’s GP identified that her psychological symptoms were caused by work and that she had PTSD. She applied for Workcover benefits on 20 January 2021. Workcover rejected her application due to a lack of medical evidence providing a causative link to a work-related injury. A review of this decision was finalised in the applicant’s favour in November 2022. As part of the review the applicant was assessed by Dr Mungomery, at the request of Workcover, who confirmed that the applicant’s PTSD condition was permanent and she was not able to return to work as a paramedic.
The applicant subsequently sought legal advice in March 2023, but was unable to lodge a claim for damages under the Motor Accident Insurance Act until late 2023 because she was unable to identify the persons against whom the claim should be lodged (the insured vehicle / driver and the insurer).
The decision at hearing
Section 31(2) of the Act relevantly provided:
'2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
- (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action, and
- (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.'
In determining the issue of whether the limitation period should be extended, and the applicant allowed to commence proceedings for damages, the court focused on the following:
- Were the facts relied on by the applicant material facts?
- Were any of the material facts of a decisive character? and
- If so, were the facts within the knowledge of the applicant prior to the dates asserted by her in December 2022 and November 2023?
Noting the above the court was content that:
- The facts relied upon by the applicant, specifically the nature and the extent of her psychological injury, were ‘material facts’ as defined by the Act, and
- The knowledge of the fact that the injury was permanent and was such as to prevent the applicant from ever returning to the work she previously did, could be a fact of a ‘decisive character’.
Notwithstanding this the court ultimately considered that the applicant did not satisfy the requirements of a grant of an extension of time pursuant to section 31(2) of the Act in circumstances where in the words of the court:
'Knowledge of the fact that an injury was permanent and that it was such as to prevent the person from ever returning to the work previously done could be a fact of a decisive character. However, for the reasons which follow, this knowledge was not of a decisive character in the applicant’s case because the evidence that I accept shows that the applicant knew, prior to December 2022, that she had available an action for substantial damages. Dr Mungomery’s opinion might have assisted to show that the right of action was “more worthwhile”, but the evidence demonstrates that the applicant was aware, prior to being informed of Dr Mungomery’s opinion, of a number of matters which would have justified her bringing an action.'
The court therefore dismissed the application.
Implications for you
This decision is a good reminder of the need, if bringing an application under section 31(2) of the Act, that all elements of that section be satisfied.
