Vivian v Gameover Pty Ltd

Vivian v Gameover Pty Ltd involved a dispute where the applicant, Benjamin Vivian, sought an extension of the limitation period for bringing a claim against the respondent, Gameover Pty Ltd, for damages arising from a workplace injury. The applicant, employed as a track supervisor, alleged that he suffered a significant back injury while carrying heavy batteries at work, which subsequently led to a secondary psychological injury. The applicant had already received WorkCover benefits and had been diagnosed with a secondary psychological injury. He served a notice of claim for damages on the respondent and applied for an extension of the limitation period, arguing that a material fact of a decisive character, namely the combined physical and psychological injuries that precluded him from working, was not within his means of knowledge until after the limitation period had expired.

The legal issues before the court were whether the material fact of a decisive character was within the applicant’s means of knowledge after the limitation period and whether the evidence provided in the notice of claim was sufficient to establish a right of action apart from a defence founded on limitation. The court examined the relevant statutory provisions concerning the extension of limitation periods in personal injury matters and the criteria for establishing a right of action.

The court found that the material fact of a decisive character, the combined physical and psychological injuries that precluded the applicant from working, was not within his means of knowledge until after the limitation period had expired. The applicant's evidence in the notice of claim was considered insufficient to establish a right of action as it did not provide the necessary details to demonstrate that the repetitive movement of a heavy weight in the manner adopted involved forces liable to injure the spine of a person of normal fortitude. The court dismissed the application for an extension of the limitation period.

The court's final order was to dismiss the application, and further directions were given for the parties to provide submissions on costs.