Sankey v GPC Asia Pacific Pty Ltd

In this recent matter Justice Crow considered whether the applicant’s claim was time-barred or alternatively whether the period within which the applicant could commence his action for damages was extended. The circumstances were unusual in that the applicant had made a request for a notice of assessment from WorkCover within 6 months of the expiry of the three year general limitation period from the date of the accident the subject of the claim, however the notice of assessment was received after the general limitation period had expired. His Honour held that given the applicant had “proactively requested the Notice of Assessment”, on a proper construction of Sch 5 Item 1 and s 302 Workers’ Compensation and Rehabilitation Act 2003 the six-month limitation period for commencing an action for damages ran from receipt of the Notice of Assessment.

Crow J

5 October 2022, 11 October 2022 (costs orders)

The applicant suffered personal injury from an incident on 1 December 2016 when he was employed by the defendant. The three-year period began to run immediately from that date since the damage was suffered instantaneously.[23]. He subsequently suffered a psychiatric injury. He sought a declaration under Sch 5 Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) that the period within which he could commence an action for damages for negligence arising out of the relevant incident was extended to 22 March 2021. The question of law regarding the proper interpretation of Sch 5 s 1(a) had not been the subject of any prior authority. [4].

The applicant’s mother, as an authorised contact, advised WorkCover that the applicant required a Notice of Assessment to progress his matter. The notice was issued on 22 September 2020 which was less than 6 months prior to the end of his general limitation period. In those circumstances the applicant sought to argue that his claim was not time-barred by s 11 Limitation of Actions Act 1974 and further that the insurer waived compliance with s 275 of the Act. [19]. Conversely the respondent contended that pursuant to the ordinary meaning of the words in Sch 5 s 1(1)(a), the end of the general limitation period was 1 December 2019 and the relevant six-month period was the period preceding that date. [24].

The proper construction of Sch 5 Item 1 and s 302 of the Act

Schedule 5 s 1 of the Act provides:

“1 Worker who requests or is given notice of assessment

(1) This section applies if—

(a) less than 6 months before the end of the general limitation period, an insurer gives a worker a notice of assessment for an injury; or

(b) before the end of the general limitation period—

(i) a worker asks an insurer to have the worker’s injury assessed to decide if the injury has resulted in a DPI; and

(ii) the insurer has not given the worker a notice of assessment for the injury.

(2) A proceeding for damages for the injury may be brought—

(a) within 6 months after the insurer gives the notice of assessment for the injury; or

(b) if, before the end of the period mentioned in paragraph (a), the worker advises the insurer that the worker does not agree with the DPI stated in the notice of assessment for the injury—within 6 months after a tribunal decides the DPI.”

Section 302 enables alteration of the period of limitation in accordance with Sch 5, where it provides for a different period for bringing the proceeding.

His Honour noted that the expansive interpretation favoured by the applicant addresses the scenario where an injured worker is given a late assessment of permanent impairment in that it gives them six months from the time of receipt of the Notice of Assessment to bring a proceeding for damages. In his view that interpretation was supported by both s 274(1) and s 273. [42], [47]. He clarified:

“Schedule 5, s 1(1)(b) caters for the circumstance where the insurer has not provided a Notice of Assessment. In that circumstance, all that an injured worker needs to do is at any time before the end of the general limitation period ‘“ask an insurer to have the worker’s injury assessed to decide if the injury has resulted in a DPI.’

In interpreting sch 5 s 1(1)(a), the phrase ‘the end of a general limitation period’ is certain, in this case 1 December 2019. In my view, the words ‘less than six months before’ ought to be given their ordinary natural meaning and, in this case, that is the six months from 1 June 2019 to 1 December 2019.” [46], [47].

His Honour stressed the importance of an injured worker such as the applicant who is awaiting a Notice of Assessment when the time limitation period is approaching to proactively request that the insurer have their injury assessed to determine if the injury resulted in a DPI. The six-month limitation period will begin to run either upon receipt of the notice (or alternatively if the DPI is challenged within six months after the tribunal decides the DPI). [48]. Mere provision of a notice after the three years had expired would not extend the period.

Here, the interpretation favoured by the applicant was contrary to s 236 of the Act since it “would impose a new general limitation upon the bringing of a personal injury claim by an injured worker to be a period six months after a Notice of Assessment is issued for those in cases, for example, where a Notice of Assessment was not issued for several years after an accident.” [49], [50].

Was the form of request for the notice of assessment made a sufficient request?

The applicant’s mother swore an affidavit indicating that she clearly recollected telephoning a WorkCover officer who was familiar with the applicant’s claim to request a notice of assessment. [52], [53]. The respondent sought to argue that no such request had been made and that even in the event it had been, it would not suffice for the purposes of Sch 5 s 1(1)(b)(i). [54].

His Honour held that the matter of whether the conversation occurred was a question of fact and on balance he was not prepared to both reject the applicant’s mother as a witness of credit and accept the suggestion that the WorkCover officer had followed his normal practice of recording information where such requests were made. [81].

In the circumstances his Honour formed the view that prior to the expiry of the general limitation period the applicant had requested that WorkCover assess his injury with a view to deciding whether it had resulted in a DPI. [83].

Disposition 

In the result the Court declared that the period within which the applicant could commence an action for damages for negligence arising from the incident on 1 December 2016 was extended to 22 March 2021. [84].

A Jarro