O'Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q)
[2025] QDC 93
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- O'Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q)[2025] QDC 93
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O'Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q)[2025] QDC 93
O'Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q)[2025] QDC 93
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Toole v BlueCare ATF the Uniting Church in Aust. Property Trust (Q) [2025] QDC 93 |
PARTIES: | BARBARA O'TOOLE (applicant) v BLUECARE ATF THE UNITING CHURCH IN AUST. PROPERTY TRUST (Q) (respondent) |
FILE NO: | BD 707 of 2025 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 4 July 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 April 2025 |
JUDGE: | Jarro DCJ |
ORDER: | The application is dismissed. I will hear from the parties as to costs. |
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY – where the applicant was previously employed as an adviser for the respondent – where the applicant suffered a psychiatric injury – where the applicant was advised return to work in any substantive capacity was unlikely – where the applicant’s statutory claim was initially rejected – where the applicant was previously legally represented – where there was a constellation of information available to the applicant prior to the expiry of the ordinary limitation period – where the applicant never returned to the full extent of her pre-injury role – whether the medical opinion provided by the tribunal is a material fact of decisive character – whether an extension of time should be granted |
LEGISLATION: | Limitation of Actions Act 1974 (Qld), s 30, s 31 |
CASES: | BEK v BEL [2024] QCA 154 Berg v Kruger Enterprises [1990] 2 Qd R 301, 305 Dick v University of Queensland [2000] 2 Qd R 476 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Greenhalgh v Bacas Training Ltd & Ors [2007] QCA 327 Moriarty v Sunbeam Co Ltd [1988] 2 Qd R 325, 333 Patterson v Placer Pacific (Osbourne) Pty Ltd [2006] QSC 353 Queensland v Stephenson (2006) 226 CLR 197 Re Sihvola [1979] Qd R 458 |
COUNSEL: | M X Kehoe for the applicant G C O'Driscoll for the respondent |
SOLICITORS: | Claimwise Australia for the applicant BT Lawyers for the respondent |
- [1]The applicant brings this application pursuant to s 31 of the Limitation of Actions Act 1974 (LAA) for leave to commence an action for damages for personal injury said to have been suffered by her in the course of employment between 16 April 2019 and 26 August 2020. She is a 66-year-old lady who was previously employed as an adviser for the respondent and contends that her psychiatric injury was the result of inadequate psychological support or assistance, combined with regularly working long hours for the respondent under pressure without adequate support.
- [2]Relevantly for the purposes of this application, the applicant highlights that it was not until the receipt of the final opinion of the Mental Assessment Tribunal (tribunal) dated 9 April 2024 that her capacity to undertake any form of paid employment in the future had been extinguished or at least significantly reduced on 9 April 2024. By that stage the tribunal, after having all of the available expert medical opinion from treatment providers, expressed the opinions that the applicant’s condition was stable and stationary, her treatment had properly concluded and no further treatment was contemplated.
- [3]The application to extend the limitation period is opposed by the respondent who has submitted that there was a constellation of information well before the expiry of the ordinary limitation period (27 August 2023) that any reasonable person properly instructed would have instituted a claim for damages. The respondent highlights that the applicant retained legal advice (prior to engaging her current solicitors) very early on challenging the rejection of her application for compensation during the statutory process, such that it is untenable to accept that the question was never posed to her legal team or that the applicant’s legal team never proffered advice that the applicant should launch a common law action.
Court’s Discretion to Extend Limitation Period
- [4]Pursuant to s 31(2)(a) of the LAA, the court may extend a limitation period if 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. To inform the wording of the provision, it is necessary to have regard to the definitions contained in s 30 of the LAA.
- [5]Recently in BEK v BEL [2024] QCA 154 at [41], Brown J as her Honour then was said that s 30 of the LAA defines facts which are “material facts relating to a right of action”, when “material facts relating to a right of action are of decisive character” and what constitutes “a fact within the means of knowledge of a person”. Section 30 of the LAA provides:
“30 Interpretation
- For the purposes of this section and sections 31, 32, 33 and 34 –
- the material facts relating to a right of action include the following—
- the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
- the identity of the person against whom the right of action lies;
- the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
- the nature and extent of the personal injury so caused;
- the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
- material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
- that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
- a fact is not within the means of knowledge of a person at a particular time if, but only if—
- the person does not know the fact at that time; and
- as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
- In this section—
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
- [6]Her Honour observed, with Morrison JA agreeing, that since Re Sihvola [1979] Qd R 458, authorities have found that a material fact relating to a right of action includes facts beyond the bare and essential ingredients of the cause of action.[1] Further, her Honour stated:
“The authorities of this Court, referred to above, support the fact that “material fact” in s 30(1)(a) is broader than the essential elements constituting the cause of action itself and can encompass facts necessary to prove the material facts of a cause of action. That construction is supported by:
- the language of s 30(1) itself, which is not confined to facts which establish the cause of action: “the material facts relating to a right of action include” the facts outlined in s 30(1)(a)(i)-(v), rather than being limited by those categories;
- the extension of the categories of facts in (i)-(v) to facts which go beyond the bare elements of the action, such as s 30(1)(a)(iv), which relates to the evidence establishing the extent of an injury; and
- the context of s 30(1)(a) in the provisions which relate to the extension of the limitation period. The test of a material fact of decisive character requires consideration of the prospects of success of an action and whether it is a material fact which affects the claimant’s prospects of success and justifies bringing the action. The assessment of the prospects of success would call for an assessment of the ability to prove the action and the quality of the facts available to prove it. That is consistent with “evidence” of a material fact in s 30(1)(a) being treated as a material fact itself in particular circumstances. That is not to conflate the requirement that there be a “material fact” with “decisive character”. The two requirements must be separately established.”[2]
Material Fact of a Decisive Character
- [7]In the present case, the applicant submits that the material fact of a decisive character constitutes the following:
- the medical opinion provided by the tribunal (and as articulated by independent psychiatrist Dr Charana Perera dated 5 February 2024 (and sent to WorkCover Queensland) to the effect that the applicant would be unable to return to any form of paid employment or, at best, she was now limited to a day or two of work per week in a less stressful role; and
- that she had sustained a permanent psychiatric impairment, despite the extensive treatment provided.
- [8]This was against a background where (specifically as to the issue “means of knowledge” issue):
- The applicant continued to work until 22 June 2023.
- The applicant’s initial engagement with (previous) legal representation was solely in relation to the rejection and subsequent Regulator review of the rejection of her claim for statutory compensation (that is, it had had nothing at all to do with potentially bringing a common law claim).
- The applicant was observed by those providing medical treatment to her to be solely focused on her ability to continue to work and when she ceased work in June 2023, her sole focus was on returning to work.
- It was recommended to the applicant that she should undergo electroconvulsive therapy, which she underwent, her expectation being that such treatment would permit her to return to work.
- Until April 2024, when the tribunal indicated that a return to work in any substantive capacity was unlikely, the applicant held the view, based upon the medical advice that she had been provided with, that she should be capable of returning to the workforce following treatment.
- Prior to April 2024, the only knowledge that the applicant had was that it was unlikely that she would return to her employment with the respondent.
- Dr Perera (independent psychiatrist) opined to the applicant that treatment would likely enable the applicant to return to the workforce however his opinion changed and became less optimistic by the time he corresponded with WorkCover Queensland in February 2024.
- The applicant’s general practitioner expressed optimism in relation to the applicant’s ability to return to work on 15 June 2022 stating that she should be capable of a return to full-time work in six to 12 months from that time.
- [9]It was submitted that beyond the applicant’s treatment and desire to return to substantive employment, it should be inferred that she was not desirous of pursuing any form of litigation against the respondent, the sole purpose of her retaining (previous) lawyers being to have the decision to reject her statutory claim overturned, which it in fact was. Therefore:
- the applicant successfully managed to work until June 2023;
- the continuation of her symptoms prompted treatment providers to recommend and ultimately perform electroconvulsive therapy;
- the treatment providers indicated throughout, until at least April 2024 (as far as the applicant was aware and noting the report of Dr Perera to WorkCover Queensland of 5 February 2024), that treatment should permit a return to the workforce;
- the applicant throughout indicated her desire to return to the workforce and until April 2024, she considered that this remained a realistic expectation (based upon the medical opinion that she had been provided); and
- it was only in April 2024 that the applicant became aware that a return to any form of work or at least full-time work of the nature that she was undertaking – pre-accident was unlikely.
- [10]It was submitted that the applicant’s reliance upon the medical opinions provided to her was not unreasonable in the circumstances and that the subjective test of reasonableness applicable to the test articulated by s 31(2)(a) of the LAA should be considered through the prism of the applicant suffering from a work-related psychological condition. Put another way, it would have been premature for her to commence a common law claim in circumstances where the medical evidence that she had received prior to April 2024 was that further medical treatment would likely permit her to return to work in a substantially similar role to that which she was performing pre-accident. Put simply, the medical evidence that the applicant received from the tribunal led the applicant to the realisation that she was unlikely to be able to perform her pre-accident duties of employment until retirement age. There was certainly never any mention at all within the three-year limitation period that the applicant may be unable to return to work until her retirement age and certainly she had no apprehension that this may be the case. The applicant’s focus was to return to work and to pursue treatment which would assist in her recovery.
- [11]In this respect, it was highlighted that the applicant was slow to make a claim for statutory compensation, initially utilising her sick leave entitlements, and her delay contributed to the initial rejection of her statutory claim. The applicant, until April 2024, had no reasonable means of knowing that she would be left with a significant level of permanent impairment or, more significantly, that she was unlikely to be able to return to her employment until retirement age. From the time of the applicant’s attendance upon the tribunal in April 2024 and the issuing of a notice of assessment at that time, the applicant knew something new (a material fact) which she did not know before, that being that she had a permanent impairment and, more significantly, that she was unlikely to return to work of the nature that she performed in the past. It was only after the conclusion of the electroconvulsive treatment that it became apparent that the applicant’s prognosis and prospects of returning to the workforce were less favourable than she had apprehended.
- [12]Because a material fact for the purposes of the LAA is limited to the acts or omissions giving rise to a cause of action and does not extend to knowledge of the legal effect or consequences of those facts, it is one reason why the application should fail.[3] In the present instance, it has been argued on behalf of the applicant that it was only in April 2024 that she became aware that a return to any form of work, or at least full-time work in the nature that she was undertaking pre-accident, was unlikely. However, in Dick v University of Queensland [2000] 2 Qd R 476 at [26], Thomas JA applied the reasoning of Dawson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 who said:
“The form of the legislation requires, I think, a step-by-step approach. The first step is to inquire whether the facts of which the appellant was unaware were material facts. If they are, the next step is to ascertain whether they were of a decisive character. If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date.”
- [13]Thomas JA continued at [28]:
“As to step 1, Dawson J held that the material facts relating to the right of action were ‘those facts that must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded…’. His Honour considered that Do Carmo was a case where it was necessary for a plaintiff, in order to show that the system of work was not safe, to provide evidence of these steps which might have been taken to minimise or eliminate the risk of injury. Such evidence, his Honour thought, was ‘one of the ingredients which go to make up the fact of the occurrence of negligence and for that reason is, in my view, and [sic] material fact…’. His Honour then rejected the suggested distinction between primary and secondary facts, noting that it was certainly not one that had been drawn by the legislation itself. His Honour observed that ‘what is relevant is what the applicant had to prove in order to establish negligent conduct’. It is enough to say that if the respondent was unaware of the fact that has now been formulated as the material fact, he could be held to have been unaware of a material fact.
[29] As to the second step, Dawson J considered that the relevant subsection ‘characterizes as decisive at least each of those facts which must be proved in order to establish cause of action’. His Honour considered the existence of an alternative safe system of work was, in that case, a material fact of a decisive character. On the evidence as it now stands in the present matter, a similar conclusion is open.
[30] As to the third step, the question was whether the existence of an alternative safe system of work was ‘within the means of knowledge’ of the plaintiff during the relevant period. His Honour observed that it is not enough that the plaintiff did not know; it is a question of his means of knowledge. His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man, citing the remarks Lord Reid in Smith v Central Asbestos Co such as ‘the plaintiff must have taken all such action as it was reasonable for him to take to find to out’ and ‘…this test is subjective. We are not concerned with ‘again the reasonable man’’. Dawson J observed that [Qld s 30(1)(c)] unlike [Qld s 30(1)(b))] ‘makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense’.”
- [14]I accept that subjectively for the applicant the final opinion of the tribunal of 4 April 2024 and its conveyance to her was seen to be material. However, when considering the first step enunciated by Dawson J in Do Carmo and Brown J’s observations in BEK, I do not think the receipt of the tribunal’s final opinion sufficiently elevates it to the requisite standard because the bare and essential ingredients of the cause of action were known to the applicant prior to the expiry of the ordinary limitation period; so too were the facts beyond the bare and essential ingredients of the cause of action. The final opinion of the tribunal and its conveyance or knowledge of it was, in my view, not a fact necessary to prove the material facts for a cause of action.
- [15]Following the lodgment of her application for workers’ compensation on 10 February 2021, the applicant never really returned to the full extent of her pre-injury role. By 22 February 2021, the applicant returned to her pre-injury role, although for the matters identified below, in a limited way.
- [16]On 14 May 2021, WorkCover rejected the applicant’s statutory application. By 28 July 2021, the applicant retained lawyers for assistance, to advise and assist her in relation to a WorkCover review. It matters not that the assistance was during the statutory phase.
- [17]Throughout this time, the applicant was receiving medical treatment and utilising her sick leave and other entitlements. Her first attendance upon the tribunal was on 6 July 2022. There, the tribunal identified that the applicant “reports that her overall clinical trajectory, although associated with some improvement overtime, has plateaued, while short of where she considers her usual status and functioning to have been in”. The tribunal considered that the applicant’s illness trajectory, partial treatment response and objective clinical manifestations indicated a different clinical diagnosis and was concerned that the applicant had not undertaken adequate treatment to date with respect to her condition. The tribunal took the view that further specific treatment was likely to significantly reduce the applicant’s residual level of impairment and determined that her condition was not stable and stationary.
- [18]On 24 May 2023, a further tribunal assessment occurred where it was found, among other things, that with respect to the applicant’s employability, the tribunal noted that the applicant was employed full-time, but spread her hours over seven days and could not deliver more than 20 hours a week of productive engagement in her work. The tribunal concluded that the applicant could work less than 20 hours per week in a less stressful position. It determined the applicant’s condition was not stable and stationary. It also noted that the applicant reported a motivation to undertake such treatment, including an extended period of sick leave, in order to work on her recovery. The applicant’s then lawyers attended the tribunal hearing.
- [19]On 4 April 2024, the applicant, with her lawyer, attended upon the tribunal for the final time. The tribunal had in its possession a report from the independent psychiatrist Dr Perera dated 5 February 2024 which identified, among other things, that the applicant had completed a course of electroconvulsive therapy. According to Dr Perera, the applicant would never be able to return to paid work. The tribunal determined that, from a psychiatric perspective, the applicant could work one or two days a week in a qualitatively different, less stressful position to that of her substantive position – a position which requires less skill due to her ongoing mood and anxiety symptoms. It noted that apart from three weeks of handover duties in middle of 2023, the applicant had not undertaken any paid employment. The applicant’s incapacity for work was likely to be ongoing for the foreseeable future. As such, the tribunal determined the applicant had an incapacity to work that is partial and permanent. It considered that the applicant’s clinical trajectory, although now demonstrating some improvement, has essentially plateaued and whilst further treatment might assist her symptom control, it was unlikely to significantly alter the residual level of impairment. A Psychiatric Impairment Rating Scale (PIRS) rating was made.
- [20]In my view, if not the applicant, but certainly her then legal representatives, were aware or ought to have at least been aware of the extent of the applicant’s condition impacting upon her employability. That is because of two matters – the first was the need to be assessed by the tribunal on three occasions; and secondly the amount of time required for the applicant to convalesce prior to the final tribunal hearing. As to the former, I note the applicant was represented (although she appeared virtually at the first tribunal assessment) and her solicitors appeared on the subsequent occasions. As to the latter, the respondent has identified the “inordinate amounts of time off” for the period 14 April 2019 to 9 April 2024 being:
- Within that period, the applicant took 2291.8 hours (more than 300 days) of leave.
- The applicant took 152 hours of leave in 2020. This was taken in one block of 20 days from 31 August to 25 September 2020.
- The applicant took 129.2 hours (17 days) of leave in 2021.
- The applicant took 319.2 hours (42 days) of leave in 2022, including a block of 22 days in October.
- The applicant took 1,174.6 hours (154.5 days) of leave in 2023.
- The applicant took 471.2 hours (62 days) of leave from 1 January to 9 April 2024, taken in one block from 2 January to 28 March 2024.
- [21]I therefore accept the respondent’s contention that there was a constellation of information available to the applicant. It seems to me that the material fact sought to be relied upon by the applicant does not elevate it to an appropriate level for it to be accepted as such. The tribunal’s final assessment and findings were not required to establish a fact necessary to prove the material facts surrounding the respondent’s purported liability. There may have been some uncertainty in the calculation of the applicant’s economic loss but the facts, as opposed to evidence, were known prior to expiry of the ordinary limitation period. Of course, the applicant cannot be criticised for her focus in ensuring she obtained proper treatment to address her condition, but at the very least the materialisation of an action against the respondent ought to have been known prior to the receipt of the tribunal’s findings. The existence of damage or loss was known prior to then to assist in the formulation of a common law claim. The applicant never returned to the full extent of her pre-injury role following the lodgment of her application for workers’ compensation on 10 February 2021. The final tribunal assessment was not a necessary ingredient, nor should it be deemed a material fact in the circumstances. The applicant had knowledge of all the material facts constituting her claim within time.
- [22]In reliance upon the applicant’s position, reference was made to Queensland v Stephenson (2006) 226 CLR 197 where the applicants in that case were given leave to commence the proceeding out of time in circumstances where they were aware they had suffered psychiatric injury in the course of their employment as undercover detectives (the material fact), however, the material fact only became decisive when they became aware that they were no longer able to perform their duties of employment. It was submitted on the applicant’s behalf that while she was aware she had sustained injuries prior to the expiration of the limitation period, her realisation that she would not likely be capable of working to retirement age and that she had a significant degree of permanent impairment gave the material fact the character of decisiveness. In my view, the reliance upon this authority is somewhat misplaced in that the tribunal formed the opinion that the applicant had a residual working capacity and the applicant was aware of such, as opposed to Stephenson.
- [23]Reliance was also placed upon Greenhalgh v Bacas Training Ltd & Ors [2007] QCA 327. There, the unsuccessful appellant argued that the primary judge had erred in failing to appreciate that the medical opinion did not add materially or decisively to the respondent plaintiff’s knowledge of the nature and extent of his injuries as to enliven the discretion conferred by s 31 of the LAA. The applicant in the present instance contended the case was analogous in that the medical opinion that she received from the tribunal led her to the realisation that she was unlikely to be able to perform her pre-accident duties of employment until retirement. In my view, the contention overlooks the previous opinions of the tribunal on the earlier occasions in that, whilst the applicant’s condition may have been not permanent and stable, the applicant was aware, or at least ought to have been aware, that she was unlikely to return to pre-accident duties of employment. That is because at the time of the first tribunal assessment, it was reported that the applicant reported to it that her overall clinical trajectory, although associated with some improvement overtime, had plateaued, well short of where she considered her usual status and function and status to have been. The tribunal took the view that further treatment was likely to significantly reduce her residual level of impairment (but not to a negligible level). Hence the request for a further assessment in six months’ time. Insofar as the second opinion was made (on 24 May 2023), the tribunal formed a similar view. Relevantly, it noted that with respect to employability, the applicant could work in a less stressful position for less than 20 hours per week. Further treatment was deemed necessary before the condition could be determined to be permanent.
- [24]Additionally, reliance has been placed upon Patterson v Placer Pacific (Osbourne) Pty Ltd [2006] QSC 353, where the plaintiff successfully sought an extension of the limitation period on the basis that she had a permanent incapacity for work. There, the court observed that the applicant had been reluctant to pursue a claim for damages, and only did so when it became apparent that she would be unable to return to her pre-accident vocation. It was submitted on the applicant’s behalf in the present instance that the applicant was reluctant to pursue any claim for damages in circumstances where, for a large part, she was continuing to work and was hopeful of remaining in the workforce. However, I am not persuaded that Patterson assists because, whilst I accept that the applicant was continuing to work and hopeful of remaining in the workforce, it was clear that even at the time of the inception of the application for compensation, she was significantly impacted from her injury such that there was a material reduction in her hours of work. It would have been within her means of knowledge that the applicant’s prospects of returning to a full-time role were limited as demonstrated by working at a reduced capacity for a significant period following her WorkCover application.
- [25]
- [26]Even if I am incorrect in taking the view that the final tribunal assessment did not put the applicant in the position of knowing all the material facts, the final tribunal assessment was not of a decisive character because it did not materially add anything in light of the information available to the applicant before the expiry of the ordinary limitation period that any reasonable person properly instructed would have instituted a claim for damages. There was already a crystallisation of the economic loss component which the applicant, properly instructed, ought to have commenced proceedings earlier. I do not think the final tribunal assessment materially improved the applicant’s action for negligence.
- [27]The test as to when a material fact can be regarded as decisive has been explained in Moriarty v Sunbeam Co Ltd [1988] 2 Qd R 325, 333 and Berg v Kruger Enterprises [1990] 2 Qd R 301, 305 where an applicant must show that, without the newly learned fact, the applicant would not, even with benefit of appropriate advice, have previously appreciated they had a worthwhile action to pursue and should in their interests pursue it. Further in cases like the present, the applicant not only must show that she has learnt some new fact in a quantitative and qualitative sense, but she is also required to show that without the newly learnt fact she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action to pursue and should in her own interests pursue it.
- [28]The inability to return to work in the capacity which the applicant was previously engaged must have been known prior to April 2024. The earlier opinions given by the tribunal in July 2022 and May 2023 identified that the applicant’s condition precluded her from engaging in her pre-accident duties. The applicant and her advisers were on notice during these times about her inability to return to full capacity. The statements of opinion expressed in the final tribunal assessment did not, in my view, qualify as a material fact of a decisive character principally because of the view I have reached namely that there was a crystallisation of the economic loss claim prior to the final tribunal assessment. In any event, the final tribunal assessment revealed a reduced capability for the applicant at a time when the applicant was already working at a reduced capacity. Her psychological condition clearly affected her capacity for full time employment. Further the applicant’s general practitioner, Dr Kerrin Curtin, even in about June 2022, identified, the following matters:
- The applicant does not have capacity to return her pre-injury hours and duties.
- She is currently certified as fit for four days work per week.
- The time frame for her to return to full-time work was more than six months.
- She could not return to some of the duties associated with her role with the respondent for the foreseeable future.
- [29]The applicant engaged solicitors early to prosecute her claim – her former representatives assisted in relation to the WorkCover review from 28 July 2021. Knowledge of the legal consequences which might flow ought to have been apparent then, if not shortly thereafter. The injury was significant and of a long term duration and was in fact affecting the applicant’s economic capacity and would continue to do so.
- [30]I therefore readily accept the submission of the respondent that the final tribunal assessment added little, if anything, to the constellation of information that the applicant already had, and certainly which was within her means of knowledge. Whilst the applicant may not have appreciated same and relied upon her desire to resume full-time duties following her conscientious efforts at rehabilitation, the fact that she did not know is not enough to permit the granting of the application. In reaching this view, I am by no means critical of the applicant’s actions in light of her psychological injuries which were significant, severe and required significant attention over and beyond the period of her ordinary limitation period. However, I have not been persuaded that there are grounds for exercising the discretion in the applicant’s favour.
- [31]Irrespective of the lack of prejudice to the respondent, the application is dismissed. I will hear parties as to costs.