Written by Peter CarterMarch 29, 2017
A Brisbane Lions development coach has won a major victory against WorkCover for all claimants over the delivery of noncomplying notices of claim for damages.
Craig Brittain was injured in two work accidents at the Brisbane Bears – Fitzroy Football Club in January 2007 and May 2009.
His solicitors delivered a notice of claim for damages in April 2010.
Because none of the injuries intended to be claimed for had at that time been assessed, WorkCover deemed the notice “invalid” due to non-compliance with s 250 and returned it to his solicitors.
Concerned his claim had been permanently barred, Brittain sought declarations that although non-compliant, the notice of claim was nevertheless valid.
There was no dispute that having given the notice of claim prior to any injuries being assessed meant that it was non-compliant with section 275.
Justice Peter Flanagan agreed – because of numerous mechanisms dealing with notices non-compliant for other reasons – non-compliance did not equate to invalidity.
Giving a deficient notice nevertheless engaged section 278 requiring WorkCover to identify the non-compliance and state whether it waived the deficiency.
It also engaged the deeming provision in section 278 (4) which permits the notice of claim to be taken as a compliant notice if WorkCover does not respond to the notice within the specified 10 days after its receipt.
That also meant that Brittain’s non-compliant notice effectively stopped the running of any limitation period by operation of section 302(1)(a)(i).
As a consequence, Brittain will be able to pursue his claim against WorkCover for the May 2009 injury.
The moratorium also applies to the limitation in respect of the January 2007 injury but because that period had expired prior to the giving of the notice of claim in April 2010, Brittain can only take advantage of the section 302 moratorium if he succeeds in an application to extend time for that injury, to the April 2010 date.