How can time limits thwart work injury damages claims?

Date: Jun 25, 2018

People who wish to pursue compensation for negligence must usually make a claim within a certain timeframe. These deadlines are in place to ensure a fair trial for all the parties involved; significant time lapses lead to memories fading, evidence going missing and witnesses dying or disappearing.

Under the Workers Compensation Act 1987 (NSW), individuals must commence a work injury damages claim no later than three years after the date of the injury. However, the courts can allow plaintiffs to circumvent the time limit if they provide adequate reasons for the delay.

But what constitutes a legitimate justification for missing the deadline? A case that recently went before the NSW Court of Appeal highlighted some of the key issues that judges consider when ruling on time extensions.

Teacher pursues damages for psychological trauma

The plaintiff was a teacher who was unable to return to work after he suffered psychological injuries following an incident in 2003 where a student threw a football into his face, breaking his nose.

Medical practitioners diagnosed the man as having a major depressive disorder, severe anxiety and agoraphobia. He also developed an alcohol problem and post-traumatic stress disorder.

Despite never returning to work, the plaintiff did not pursue compensation until 2014 – more than a decade after his injury and well outside of the three-year time limit.

His lawyers argued that he had only waited so long because he had not previously met the 15 per cent whole person impairment (WPI) level required to receive work injury damages. The plaintiff pursued a claim immediately after a medical practitioner diagnosed him as having a 41 per cent WPI.

Why did the work injury damages claim fail?

The defendant – the State of NSW – sought an order to have the claim struck out because the three-year limit had expired. The trial judge found in favour of the defendant, ruling the plaintiff:

  • Was aware of the time limits and allowed them to expire.
  • Did not provide a full and satisfactory explanation for the delay.
  • Had a weak case overall.

The plaintiff launched an appeal but was ultimately unsuccessful, with two out of three appellate judges agreeing with the original decision. They also said the plaintiff had misunderstood the relevant laws.

Instead of waiting until a medical practitioner had diagnosed a 15 per cent WPI, the plaintiff should have filed the claim within the three-year limit and then sought medical support for his case afterwards.

Accessing the right legal advice

Failing to give the defendant reasonable notice of a claim led to the courts dismissing the plaintiff's case and appeal. This highlights the importance of having experienced work injury damages lawyers at the helm of a claim to ensure the relevant statutory schemes are well understood.

The team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers are experts at handling workers compensation claims in NSW. Please contact us for a free consultation if you have been injured due to someone else's negligence.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.