September 19, 2011

The recent Supreme Court failure of a worker’s limitation extension application has highlighted once again how the statutory censorship regime that applies in Queensland to lawyer statements about personal injury claims, can contribute to the loss of legal rights and a lifetime of further misfortune.

Tracey Barnes – a worker at Agnes Water Hardware – claims to have been injured as a result of lifting twenty or so drums of paint from the floor, twisting round to place them on a stool, mixing in tint and then re-placing the 23 kg drums on the floor.

She swore by affidavit that in the course of doing the work, her back became “sorer and sorer” and that by the next day she hardly moves. The events transpired on 23 December 2005 and she received treatment in early 2006, including a CT scan that imaged a disc protrusion at L5/S1 of which she was not informed possibly because her doctor had failed to keep proper records.

She continued working at the hardware store until November 2008 at which time she took up lighter work at the Agnes Water Tavern until February 2010. By this time the sciatic pain in her legs had increased markedly and she went back to her doctors for further medical help.

On 23 September 2010 her specialist Dr Yang – who six months earlier “was dismissive” – recommended surgery and in early 2011 she sought legal advice for the first time. An originating application was filed in August 2011 for leave to proceed pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2002 and for a limitation extension.

The three newly discovered factors of a decisive nature relied upon by Ms Barnes in her limitation extension application were the causal contribution of the work, the extent of her injury and the consequences thereof. The hardware store respondent resisted the contention that an injury had occurred at all: it had not been reported and its owner Mr Smith had not noticed that Barnes was impaired in the performance of her duties.

His Honour noted that the respondent’s assertions as to the injury were irrelevant for present purposes: these were matters for a trial and it was only relevant on the present application as to whether or not the plaintiff could satisfy the requirements for gaining the relevant extension.

The plaintiff also succeeded in convincing the court that the crucial facts only came within her knowledge after the critical date. A “transparently honest” Mrs Barnes had sufficiently pursued investigating her condition and it was only its escalation that caused her to become aware of the facts that are now so evident.

She also defeated the respondent on the issue of prejudice but – fatally – failed on the most fundamental requirement: to establish that there was a right of action in negligence in any event. “More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude.”

The only evidence before the court on this point was the respondents Manual Handling Guideline which set out recommendations on weights to be lifted and highlighted the risk of twisting when bearing weight and performing repetitive heavy tasks.

Despite agreeing that such evidence could be easily be obtained and a recognition that the duty imposed on an employer to minimise the risk of injury is high, the court ruled that the applicant had simply failed to adduce the requisite evidence that she had a right of action.

It followed that the late-discovered material facts on which she was said now to rely, could also not be proved to have been “decisive” because the plaintiff’s new-found recognition of the causal link and the extent & consequence of the injury could only gain that quality if based on expert medical opinion which appeared nowhere in the material.

Unless a further application is bought on behalf Mrs Barnes, this appears to be the end of the road and she will have to await her place in the public list to have her surgery conducted in Bundaberg probably need to rely on Centrelink benefits thereafter.

To decide otherwise would well have been an example of a “hard case makes bad law”. I can’t help imagining that this claimant – like so many others recently defeated on limitation applications – would have have been more aware of her compensation rights were lawyers not prohibited from making public statements warning of the consequences that limitation periods have on personal injury claim entitlements.

One can live in the hope that such outcomes will come to the attention of the parliament and prompt a relaxation of limitation laws in this era of lawyer censorship.

Barnes v Smith & Ors [2011] QSC 259 Bundaberg McMeekin J, published 31/08/2011

Categories: Law practice , Personal Injury , Litigation & Law Practice , Civil procedure , Solicitors

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