Written by Peter CarterNovember 16, 2013
Wendy Grey sought legal advice in July 2011 for a possible common-law damages claim for cumulative workplace injuries that began as early as 2006 when she took up a housekeeping position at the Outrigger Resort, Hervey Bay.
Her first medical for the carpal tunnel condition was on 20 April 2010. Shortly after, she underwent surgery and was also diagnosed with complex regional pain syndrome (“CRPS”) and treated for depression.
All three conditions were the subject of a statutory claim for compensation against hospitality outsourcing provider AHS Hospitality P/L, who became her actual employer from 2007. WorkCover assessed those injuries in late June 2011.
Around that time she had begun receiving GP treatment for left shoulder pain and made a further statutory claim for that injury which was said to have arisen from her “use of a feather duster at work”. The legal advice of July 2012 was to “wait until the outcome of investigations into the left shoulder condition before making a final assessment as to whether it would be economical to make a claim.”
Her solicitors finally lodged a notice of claim for damages (NOCD) referring to the three earlier conditions – specifying a 20 April 2010 injury date – in March 2013. An application to extend the limitation date to cover her exposure to those injuries for the period prior to the date of NOCD, was filed on 11 July 2013.
At issue in the Brisbane District Court hearing was whether or not Wendy had discovered a material fact of a decisive nature which was unknown to her or not within her means of knowledge (had she taken reasonable steps to ascertain such fact) until only after the commencement of the last year of the limitation period.
Wendy relied on the medical investigation of her shoulder injury as offering up the requisite new “material fact”.
Orthopaedist Mark Welsh had reported regarding her shoulder only in March 2013, she attested, that “all treatment modalities had been exhausted and her prospects of returning to employment are poor”. This she claimed – when read in the context of earlier reports that linked the shoulder injury to her carpal tunnel and CRPS – caused the realisation that she would be unable to return to her pre-accident employment by reason of the earlier conditions.
However, the court could not conclude any probable link between the two medical complaints. “There is simply inadequate evidence to allow any finding to be effect of such a link exists.” It therefore followed that Wendy’s realisation from the content of Dr Welsh’s shoulder injury investigation report that she would be unable to return to work, was not in any sense, “material”.
She had after all consulted a solicitor in July 2011 but according to the court, was given “fundamentally flawed advice and a common-law damages claim ought to have been pursued at that time by means of an Urgent NOCD pursuant to s 276 which would have preserved her limitation period.”
“She was fully apprised of all necessary knowledge in relation to her earlier conditions by July 2011 …. and there is no evidence that she was provided with any new knowledge of relevance after that date by her solicitors.”