Thompson v WorkCover Queensland

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v WorkCover Queensland [2011] QSC 197

PARTIES:

SHAUN MICHAEL THOMPSON
(Applicant)

v

WORKCOVER QUEENSLAND
ABN 40 577 162 756
(First Respondent)

and

KQ OPERATIONS PTY LTD
ABN 57 113 087 782
(Second Respondent)

FILE NO/S:

BS 866 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2011

JUDGE:

McMurdo J

ORDER:

The limitation period for the applicant’s cause of action, the subject of his Notice of Claim dated 25 February 2009, be extended until 2 September 2010.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where WorkCover waived compliance of the applicant’s Notice of Claim on various conditions – where the applicant agreed to WorkCover’s conditions once the limitation period had expired – where the applicant contracted Q-fever at work – where most patients recover from Q-fever within two years – where the applicant’s Q-fever is a permanent condition – whether the court should order that the limitation period be extended – whether the applicant had a reasonable prospect of success to justify the bringing of an action under s 30(1)(b)(i) of the Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld), s 31

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 275, s 276, s 302

Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 219, considered
Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41, cited
Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, cited

The Commonwealth v Mewett (1997) 191 CLR 471, cited

COUNSEL:

D Fraser QC with R Trotter, J Francis and RP Bridgman for the applicant.

K Holyoak for the respondent.

SOLICITORS:

Gall Stanfield & Smith for the applicant.

Corrs Chambers Westgarth for the respondent.

1. The applicant seeks an extension of the limitation period for his proposed action for damages for personal injuries against his employer, which is the second respondent.  In that employment, he was exposed to raw meat products but was given no protective clothing or masks and he was not immunised against Q-fever.  He contracted Q-fever and his symptoms began on about 24 February 2006.  He first sought medical attention on 2 March 2006 and it is common ground that the limitation period of three years began to run on that date. 

1. The applicant’s proposed action is subject to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Compensation Act’). Section s 275(1) required him to give notice of his claim within the limitation period. But by s 276, WorkCover was entitled to waive compliance with the requirements of s 275. Section 276 provides:

“276 Noncompliance with s 275 and urgent proceedings

(1)The purpose of this section is to enable a claimant to avoid the need…