September 26, 2012

A 30-year-old welder injured by a toppling crane in 2004, pleaded mental incapacity as the excuse for a delay until 2010 to commence his compensation lawsuit, contending that the 3 year limitation time clock must be stopped for the duration his disability.
An excellent strategy to climb out of an otherwise hopeless predicament but only if medical evidence confirms the requisite legal disability.

Paul Bergemann asserted his post-traumatic stress condition that originated in the accident put him within the Limitations of Actions Act  section 29 exemption such that a valid claim was allowed to “be brought at any time before the expiration of 3 years from the date on which [he] ceased to be under a disability”.

He put forward his theory against WorkCover’s resistance, in a pre-trial directions hearing, contending his case for compensation should be allowed to proceed to trial. Treating psychiatrist, Chris Cantor described Bergemann as a man of limited literacy with a reduced capacity to manage his own affairs and was thus “highly likely to have been of unsound mind”.

On the other hand, colleague John Varghese opined that the condition “waxed and waned” and the symptoms “had not made him of unsound mind over the whole of the relevant period” that had to be explained away.

The court clarified in last week’s ruling that “to constitute unsoundness of mind the condition from which a person suffers needs to be more or less continuous and …. [only] brief amelioration of a disability which is too short to enable comprehension of all relevant matters”, qualifies a plaintiff for the section 29 benefit.

On the contrary said the defendant, Bergemann’s history was that of a person reasonably capable except in periods of extreme distress. He had after all, persisted with work and had applied for workers compensation for no less than three subsequent  injuries, attending all associated medical consultations as required.

What’s more, because the major damages component in respect of yet another accident – a car crash in 2004 – was for psychological injuries, any “post-traumatic stress disorder was triggered”, it claimed,  by that event rather than by the crane accident itself.

The court agreed.  Even Dr Cantor’s views did not preclude the possibility of the plaintiff being reasonably capable of handling his affairs over a period of at least months – not just a brief lucid period in one long interval of malaise. Telling also, was that Bergemann had been able to instruct his solicitors effectively for a large period of time.

“I accept that there would have been periods when he may have had difficulties ….but I do not accept that he would have been so incapacitated for all but brief periods … enable him to comprehend all the relevant matters or actions required by him”.

Our plaintiff’s claim was brought to an abrupt end. “Mere” stress and occasional depression can not stop the relentless ticking of the time bar litigation clock.

Bergemann v Tilly’s Administrative Services Pty Limited [2012] QSC 266 Brisbane Douglas J published 20/09/2012

Categories: Personal Injury , Litigation & Law Practice

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