Written by Peter CarterOctober 22, 2013
A Court has ruled that a worker’s severe reading and comprehension disabilities sufficiently explained his 4 year delay in seeking legal advice about the consequences of a negligently caused on-the-job lifting injury.
Troy Richards was carrying a large oven down a set of stairs at Redcliffe’s famous Morgan’s Seafood Restaurant in April 2007. Troy had undertaken regular post-accident visits to his GP, physiotherapy and also consulted an orthopaedic surgeon. All were of the view that “his injury would heal”.
It was only on the insistence of his mother – to avoid his use of cannabis for pain relief – that he eventually sought further opinion and a CT scan in August 2010, 4 months after the expiration of the 3 year limitation period.
That scan revealed an annular disc bulge and tear.
This prompted him to enter a law office for the first time resulting in an urgent s 276 Notice of Claim for Damages in April on which WorkCover agreed to waive non-compliance on 1 June 2011, subject to the outcome of the limitation extension application.
Troy argued before the District Court that only from August 2010 had he any inkling of the permanent and income affecting nature of his injuries.
Such information was a “material fact of a decisive nature” that were not previously within his means of knowledge – he argued – and that as a result the court should exercise its discretion pursuant to section 31(2) of the Limitation of Actions Act to extend the three-year time bar.
Morgans, or more correctly, WorkCover, opposed the application on the ground Troy ought to have ascertained the true state of affairs as to his back injury much earlier.
The court found his actions had been reasonable. Particularly having regard to his “difficulties with comprehension reading and listening and difficulty in auditory decoding” he could not have been expected to have acted any differently.
He should have the opportunity, so ordered the court, to argue his case of employer negligence in relation to hauling the heavy oven up and down the slippery stairs. His case will come before the court again in the coming months, if not settled sooner.