Limitation of Actions Act 1974 (Qld) – knowledge of material facts of a decisive character – prejudice.
The respondent, Ms Lee, was employed by the appellant, Star Aged Living Limited as an assistant in nursing at an aged care facility controlled and managed by it. The respondent alleged she suffered injury to her back on 19 December 2015, her first shift back from maternity leave, while assisting to move residents.
The respondent alleged she was working with colleagues to care for residents on that day but there were no slide sheets available to assist in moving the residents, she did not know where the slide sheets were situated and accordingly she moved residents without a slide sheet and began to experience back pain while doing so.
The respondent was 30 at the time of her injuries and had worked as an assistant in nursing at various aged care facilities from August 2007. She had worked for the appellant at the workplace where she was injured since April 2014.
The respondent had previously suffered from a disc protrusion at L4/5 in 2007 but did not make a WorkCover claim at that time. She suffered a flare-up of back pain in 2010 for which she made a WorkCover claim for “about four months off work” and had a further short-term flare-up of her back pain in 2012 but did not apply for workers compensation benefits as that injury resolved.
The parties accepted that before the expiration of the respondent’s three-year limitation period she knew:
- She had suffered a very serious spinal injury;
- She had undergone major spinal surgery for that injury;
- She believed that she had suffered that injury because the applicant employer had not provided proper equipment (slide sheets);
- She believed the system of work was inadequate because the beds were too low;
- She asserted she and her co-worker had not been properly trained in proper manual handling techniques;
- Due to her back injury she had not been able to work since the date of the injury;
- Due to her back injury her husband was required to act as her full time carer for herself and their child;
- She had been unable to return to work as an Assistant in Nursing or in any similar capacity and would not be able to do so in the future;
- She would have trouble retraining into other work because of her pre-existing narcolepsy condition;
- Her back injury had been accepted as a work related injury by WorkCover; and
- She was continuing to receive ongoing weekly compensation payments from WorkCover.
The respondent first made contact with a lawyer through a community Facebook page in December 2019 with urgent steps being taken by the lawyer to lodge a Notice of Claim for Damages in early January 2020.
The respondent’s explanation for not seeking advice earlier was that she was “inexperienced with court processes, litigation and the law generally”.
The appeal is allowed. Bowskill CJ, Bond and Flanagan JJA , decision delivered 25 January 2024.
The Orders of the Primary Judge made on 10 March 2023 and 22 March 2023 (in relation to costs) are set aside. The respondent’s application to extend the limitation period is dismissed. The respondent pay the appellant’s costs of the appeal and of the proceedings below.
In the leading judgment, Her Honour Chief Justice Bowskill (with whom Bond and Flanagan JJA agreed) found:
- There was insufficient evidence to support the Primary Judge’s finding that the respondent first realised subsequent to back surgery undertaken on 27 March 2019 that it was unlikely that she would be able to work in any capacity;
- The respondent was aware of a “critical mass of information” prior to the expiration of her three-year limitation period that she had a worthwhile right of action, if properly advised;
- Had the respondent sought advice prior to the expiration of her three-year limitation period in December 2019 she would have been advised to take urgent steps to protect her legal rights;
- The medical reports obtained after the expiration of the respondent’s three-year limitation period did not establish a “material fact of a decisive character”;
- Although not determinative given the findings outlined above, there was no prejudice suffered by the appellant given relevant investigations to ascertain evidence had not been exhausted by it;
- Despite recent decisions of the courts with respect to prejudice in historical sexual abuse claims, the notion of “presumptive prejudice by delay” remains a relevant consideration in matters where there remains a limitation period (unlike historical sexual abuse matters).