Written by Peter CarterJanuary 11, 2016
The 60-year-old carpenter had done manual labour all his working life. The last nine years – until March 2015 – were with the Fraser Coast Regional Council.
In April 2009, he fell off a ladder but his back pain resolved after a week and he was able to resume full duties. In August 2010 he took some time off work after carrying “heavy pieces of hardwood”. The pain subsided after rest and painkillers, as it did it again in May 2011from overexertion when trench digging.
A council appointed orthopaedist diagnosed an aggravation of a general degenerative condition in June 2011, certified him fit for a return to work on full duties and recommended the provision of an apprentice or trades assistant to reduce the demands on him for heavy lifting.
He carried on with occasional bouts of back pain until May 2013 when he woke in severe pain, numbness to his left leg and “foot drop”.
Another orthopaedic surgeon recommended surgery – performed in July 2013 – which was “very helpful in terms of pain relief”. A Fraser Coast appointed occupational therapist cleared him for return to work in December 2013 “except for sustained repetitive manual tasks” which were recognised as an aggravation risk.
But because that restriction was never revealed to him, James Milling soldiered on exactly as he did before with the heavy arduous tasks that were his daily lot.
Not until July 2014 – when his supervisor for the first time offered assistance with heavy jobs – did it occur to Milling his employment might be at risk from his back condition.
Only then did he consult lawyers who issued a WCRA notice of claim in December that year.
And only February 2015 did Milling become aware that – after his lawyers paid for an independent orthopaedic assessment – he was simply not up to the role demanded of him at Hervey Bay.
The council’s response was to place him on leave before terminating his employment in October.
To recover the income he would lose for his remaining working life as a result of the 2009 injury and its sequelae, Milling needed a court to grant an extension of the usual 3 year injury claim time limit, to the date on which the notices of claim were received by WorkCover Qld in December 2014.
The claim notices themselves would then – as specified in WCRA 302 (a) (2) – preserve his position vis a vis time limits, provided court proceedings are commenced within a specified period after a compulsory conference.
Millings’ application – which came before Judge John McGill in Brisbane’s District Court – was vigorously opposed by the Council that boasts within its area, the highest proportion of retirees in the nation.
Seeking to hold out Milling from the modest compensation potentially available to him, the Hervey Bay/Maryborough local authority – ably assisted by WorkCover – contended he should be refused the latitude he sought because he failed to appreciate – at least by July 2013 when he underwent surgery – that he had a legal claim that should be pursued.
On their reasoning, any extension of time the court might be persuaded to allow should be restricted to the period within 12 months after his surgery and the claims received by WorkCover in December 2014 should therefore be disregarded.
Judge McGill was not impressed with their contentions and delivered a comprehensive demolition of their various assertions.
The “material fact” to gain an extension of time for an injury compensation claim arising from diminished employability – he ruled – is not simply a “right of action with a reasonable prospect of success” but also whether “as a matter of economic reality …. an award of damages sufficient to justify” such claim, would result.
“In recent years,” his honour noted, “legislative restrictions on compensation…. and the legal costs that even a successful plaintiff can recover [from a careless employer or its insurer]…impact on the economic viability” of any claim. Such assessment was therefore a difficult and time-consuming exercise.
Fraser Coast readily conceded the point by agreeing Milling would need to recover at least $50k to make the claim process economically viable or “much more” if legal liability for injury was opposed, as it was in this case.
Thus even had Milling received legal advice by the end of 2013, the economic viability of legal action was, ruled the judge, at that time insufficiently clear to conclude it would be economically worthwhile “let alone in his best interests”.
In any event the mid-2013 surgery produced a significant improvement in his condition. “In those circumstances I think it was a natural response to try to get back to work,” the court noted.
“In circumstances where he was cleared for work by the orthopaedic surgeon I can see no reason why a reasonable person would have been seeking his own medical advice as to whether he really could do that work”.
“It is not the policy of the courts to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis”.
Far more “decisive” in the judge’s view – having regard to Milling’s own background and circumstances – was the event in July 2014 when for the first time his supervisor offered him assistance to perform daily tasks
That the December 2014 claim notices – issued before the independent orthopaedic assessment was conducted – sought $280k in damages, was no indicator that the prior medical opinion of September 2013 had been decisive in Milling’s own mind.
“There is no reason to be modest in nominating the particulars of damage in the context of a notice of claim”.
Fraser Coast also contended that because a notice of claim was a “relatively inexpensive thing to give” the failure to give it “at a relatively early stage with a view to protecting a claimant’s position” should count against the long suffering carpenter.
This was rejected. “Limitations of Actions Act s 30 (1) is framed by whether it is worthwhile pursuing litigation rather than being worthwhile pursuing pre-litigation procedures under the statute”.
Not to be outdone, Fraser Coast also contended that the limitation extension application should be rejected because of the absence of evidence that tasks being performed by Mr Milling were suggestive of any negligence on its part.
In particular no expert report was produced analysing the ergonomic risks associated with lifting and carrying heavy hardwood timber and other objects over the years as well as tasks like trench digging.
His Honour dismissed that contention in the context of an over-period-of-time injury, considering it “unnecessary for the applicant to place before the court expert evidence and reasonable to proceed on the assumption that such evidence is likely to be available if the matter proceeds to trial.”
The plaintiff’s evidence that the heavy items weighed 25-40 kg and were awkward for manual handling spoke to a potentially unsafe system of work. That was as far as he need go.
Put another way, the applicant need only establish something like a “prime facie” case, similar to what a party must present to withstand an opponent’s summary dismissal application.
Without indicating any probability of success on the issue of liability at trial, Judge McGill was satisfied that an arguable case had been made out and that therefore “both requirements for the discretion to extend the limitation period had been satisfied”.
The effect of the decision is that the pre-litigation procedures under the WCRA can now proceed and Mr Milling will have until 60 days after the compulsory conference to commence proceedings in court if the matter is not resolved.