Written by Peter CarterAugust 27, 2021
He was being driven to work by his wife when they were rammed from behind and spun 180° to allow a full view of the other vehicle being torn in half and burst into flames as it hit a power pole instantly killing its driver. Aubrey Wyatt had remained conscious throughout the October 2016 peak hour accident unlike his wife and one of his two daughters who were also passengers in the vehicle.
The family were ambulanced to the Hervey Bay hospital where Aubrey was treated for a neck injury. WorkCover approved his workers’ compensation claim for that injury which resolved after a week whereupon he resumed teaching duties as normal.Six months after the accident he began to experience insomnia, nightmares and flashbacks related to the horror accident.
He took leave from his position in March 2017 and applied to reopen his WorkCover claim in September 2017 through which period he consulted his GP who prescribed antidepressants and referred him for counselling and then to a psychiatrist.
In about July 2018 Aubrey commenced a RTW program. He eventually consulted solicitors in December 2019 for advice in relation to a forthcoming Medical Assessment Tribunal hearing.
On his attempted return to full-time teaching in a classroom environment in January 2020 he realised his symptoms were so bad his “ongoing employability as a teacher” was at risk.
It was at this point Aubrey instructed solicitors to advise in relation to starting a potential motor accident injury compensation claim out of time ie more than three years after the date of accident.
A Notice of Claim was served on Suncorp as CTP insurer of the at-fault vehicle in April 2020 together with a statement that he intended to rely on s 31 of the Limitation of Actions Act to gain an extension of the limitation period by reason of material facts of a decisive nature only having come to his knowledge in the preceding three months.
The material facts relied on were the MAT assessment of a 5% permanent impairment in February 2020 and the subsequent advice from his solicitor of “the enduring nature and extent of psychological injury and the effect that might have on the extent of his loss [of future income]” on which he relied to conclude that the bringing of an injury compensation claim was justified.
His limitation extension application came before the District Court at Brisbane in February 2021 when it was resisted by Suncorp on the basis that such facts were within Aubrey’s “means of knowledge” and he would have discovered them had he made reasonable enquiries of his treating doctors at an earlier time.
He had after all received years of treatment from a psychologist and psychiatrist and taken 2 years leave from full-time employment.
In particular, psychiatrist Sharon Harding – when conducting an assessment for WorkCover in November 2018 – had diagnosed PTSD with “a very tenuous capacity to be working at all at present”.
Suncorp forcefully submitted to Chief Judge Brian Devereaux that a reasonable person in his position would have enquired at least by the end of 2018 about the potential long-term effect of the injury on his employment and would – according to the expert testimony of psychiatrist John Chalk – have been told then of his dire future employment prospects.
His Honour noted though that among the species of “material facts” relating to “the nature and extent” of the injury that may be “of a decisive character” is the fact that “the right of action has reasonable prospects of an award for damages sufficient to justify bringing the action”.
But had Wyatt taken “all reasonable steps to ascertain the seriousness of the injury” before the expiration of the limitation period?
The answer to this question “depends very much on the warning signs of the injury itself and the extent to which it or other facts might be thought to call for prudent enquiry,” Judge Devereaux observed in deciding the question in the affirmative.
“The material compels the conclusion that the applicant was struggling against serious illness but held a focus on recovery and continuing to work”.
He went on to conclude it was not until after Aubrey’s attempted resumption of full-time classroom duties and the MAT’s permanent incapacity finding, that it dawned on him his future employability was at risk.
His Honour noted that there had been no prejudice to Suncorp by the delay and that but for the operation of the limitation period, Mr Wyatt had a “meritorious claim”. He granted the extension application which will allow the claim to be determined by the Court if nor resolved by negotiation.