Extensions of time to lodge a WorkCover Common Law claim

In Victoria, if you suffer a serious injury at work due to the fault of your employer or another party, in addition to your statutory WorkCover claim, you may be entitled to claim common law compensation (also referred to as damages). It is important to note that the right to pursue a WorkCover common law claim is governed by a strict time limit. Generally, you have 6 years from the date of your injury to bring a common law claim.

In some circumstances, the Court can allow an extension of time to enable you to lodge your common law claim. In deciding whether an extension of time is granted, the Court needs to balance various factors including the length and reasons for delay and what (if any) prejudice will be suffered by the other party/parties (for example, your employer) if an extension of time is granted.

There is a common misconception that if a common law time limit has passed, an extension of time will be readily granted by the Court. Unfortunately, this is not always the case. While extensions of time can be granted by the Court and there are many successful applications for extending the time limit, this cannot be assumed.

The recent case of Griffiths, Jeffrey v Nllumbik Shire Council [2022] VSCA 212 (“Griffiths”) highlights this point. It further demonstrates the various factors the Court considers in deciding whether to grant an extension of time and highlights the fact that the limitation period is a strict hurdle:

“…a limitation period in a personal injuries claim, or in a proceeding more generally, is not some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.” [per Beach JA, Keogh J and J Forrest AJJA at para 66].

The law in Victoria requires the Court to consider the following in deciding whether to extend the time available to lodge a WorkCover common law claim:

1. The length and reasons for the delay;
2. The likelihood of prejudice to the other side;
3. The extent, if any, to which the other side has taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action against the other side;
4. The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
5. The extent to which the plaintiff acted promptly and reasonably once they knew that the act/omission of the other side to which the plaintiff’s injury was attributable, might be capable at that time of giving rise to an action;
6. the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

Further, the onus of establishing that it is just and reasonable for the time limit to be extended, is on the applicant (the injured worker).

Mr Griffiths was employed by Nillumbik Shire Council (“the council”), as a garbage collector from 1993 to 2003. He sustained injury to both his knees and his left shoulder during the course of this employment.

In August 2002, Mr Griffiths submitted a WorkCover claim for these injuries and that claim was accepted. This provided Mr Griffiths with statutory benefits such as:

• medical expenses;
• loss of income (weekly payments); and
• a lump sum impairment benefit.

He underwent surgery on his shoulder in December 2002. He continued to suffer pain and worked alternate duties until he was made redundant in May 2003.

In 2008, further surgery was recommended but liability was denied by the WorkCover insurer.

In April 2008, Mr Griffiths consulted a law firm for advice about his injuries and entitlements. On 15 April 2008, his lawyer wrote to Mr Griffiths outlining his entitlements and providing advice on a potential common law claim. In that letter, his lawyer provided information about the time limit and advised Mr Griffith against proceeding with a common law claim.

His lawyer did recommend proceeding with an impairment benefit claim (as part of his WorkCover statutory entitlements) and sought instructions to make such a claim. An impairment claim was lodged and on 28 October 2010 the lawyer wrote to Mr Griffiths advising him of the outcome of the claim and confirmed previous advice against proceeding with a common law claim.

In this letter, the lawyer referred to previous letters dated 22 May 2008, 15 May 2008, 15 April 2008 and 23 September 2009 confirming advice, seeking Mr Griffiths instructions and providing advice on time limits. Following each of these letters, Mr Griffiths did not provide instructions to proceed with a common law claim. The letter confirmed that on 27 October 2010, Mr Griffiths ultimately provided instructions to his lawyer not to proceed with a common law claim.

Mr Griffiths subsequently underwent various surgeries. In December 2013, he consulted a new lawyer.  Following that consultation, Mr Griffiths made a serious injury application as part of a common law claim and was granted permission to proceed for pain and suffering and economic loss damages. An application to the County Court was then made on 13 May 2021, to extend the time limit.

Mr Griffiths was ultimately unsuccessful in obtaining an extension of time.

In handing down his decision, the Judge focused on the adequacy of the advice given by his first lawyer through 2008/2009, the advice given about limitation dates and the consequences of expiration as well as Mr Griffiths being offered the opportunity to obtain a second legal opinion.

There was a delay of between 16 to 20 years from the time the cause of action arose to the Court documents being filed. The judge was satisfied that two things were made clear to Mr Griffiths:

1. The impending expiration of the limitation period; and
2. The consequences of such expiration.

Mr Griffiths appealed the County Court decision on various grounds.

The Court made it clear that Mr Griffiths’ state of knowledge was a key consideration when determining the reasonableness of the delay. It was clear from the letters Mr Griffiths received from his first lawyer, that he was aware of the existence of the limitation period. He was also informed that he could seek a second opinion but made an informed choice not to proceed with his common law claim.

The Court agreed with the trial judge that there was no explanation of why there was a further delay once Mr Griffiths instructed his current solicitors in 2016 until the serious injury application was lodged in 2019.

Mr Griffith argued that the trial judge should have given more weight to the deterioration of his condition after the expiry of the limitation date. This argument failed. The Court found that in any personal injury claim, there is a risk of deterioration after the expiration of the limitation period. This is simply a result of the law in imposing a cut off point.

Mr Griffith also argued that the prejudice suffered by him in failing to extend the limitation period was a “powerful consideration”. The Court found that the prejudice to the applicant is not one of the specific factors that the Court must have regard to.

The Court found that the delay in bringing a common law claim was considerable and resulted in an overall prejudice to the Council in defending the claim.

The Court also found that the trial judge provided a clear path of reasoning in reaching the outcome. The Court ultimately agreed with the trial judge’s findings and did not grant the extension of time sought by Mr Griffith.

The importance of bringing a WorkCover common law claim prior to the expiration date, cannot be understated. There are times, however, where for various reasons, a claim cannot be brought before the expiration of the limitation date. In these circumstances an extension of time may be sought. It is important to be aware of all the factors the Court considers when granting an extension.

The case of Griffiths highlights the importance of taking prompt action in relation to a limitation date. While injuries may deteriorate significantly after the expiration of the limitation period, that does not automatically mean an extension of time will be granted. Further, the knowledge of the applicant of the existence of the limitation date is critical.

Above all, if you believe your WorkCover common law limitation date has expired, it is important to act quickly!

You should seek advice from a personal injury lawyer experienced in WorkCover claims, including common law claims. At Polaris Lawyers, we provide free initial advice, no win no fee claims and no hidden fees or charges.