The case of Vivian v Gameover Pty Ltd [2024] QSC 263 concerned an application under s.31 of the Limitation of Actions Act 1974 (Qld), (the LA Act) to extend the limitation period for filing a claim. The applicant initially filed a claim related to a physical injury and was later diagnosed with a secondary psychological injury after the limitation period had expired, prompting him to seek a s.31 extension to include the psychological injury.
The case focused on whether the limitation period could be extended to include the psychological injury based on the assertion that a material fact of a decisive character had come to light after the expiration of the limitation period.
Facts of the Case
Vivian, a track supervisor at Gameover Pty Ltd, claimed he suffered a serious back injury while carrying batteries at work. As a result of the impact of the primary injury, he says he developed a secondary psychological injury.
Initially, the applicant filed a WorkCover claim and received statutory benefits for his back injury. However, his condition did not improve, and he began to experience additional symptoms of a psychological nature, which he linked to his ongoing physical injury. Vivian was eventually diagnosed with a secondary psychological injury, which he claimed was caused or exacerbated by the physical injury and his inability to work due to the back pain. The diagnosis was not made until after the expiration of the limitation period and the combined effect of the physical and psychological injury was said to prevent him from working again.
Legal Issues
The primary issue before the court was whether the applicant could be granted an extension of the limitation period for including the secondary psychological injury in his personal injury claim against his employer, Gameover Pty Ltd.
The applicant requested an extension of the limitation period, claiming he discovered a crucial fact after it had expired. He cited the combination of his physical and psychological injuries, which severely affected his ability to work and only became apparent later in his recovery following an independent medico-legal report.
In these circumstances the relevant material facts relied upon were:
(a) the nature and extent of the injury suffered (s 30(1)(a)(iv) of the LA Act); and
(b) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty of the defendant (s 30(1)(a)(v) of the LA Act).
Sections 30 and 31 of the LAA have been considered extensively and the authorities identify the approach to be taken, in particular the decision of Dick v University of Queensland (2000) 2 Qd R 476 at [26] per Thomas JA.
Key Legal Question
The legal question before the court was whether the applicant had established that a material fact of a decisive character, which was crucial to his claim, was not within his means of knowledge until after the expiration of the limitation period. According to Section 31 of the LA Act a court may grant an extension of the limitation period if it finds that the applicant could not have reasonably known the material facts that were critical to their claim before the limitation period expired.
The central question, therefore, was whether the applicant's knowledge of the combination of both physical and psychological injuries, and how these injuries precluded his ability to work, constituted a "material fact" that was not within his means of knowledge until after the limitation period had passed.
Court's Analysis
Material Facts
The factors involved in determining the extent or impact of the material fact include considerations of degree and significance, such as:
(a) The fact that that an injury is far more serious than realised may be a material fact, particularly where the injury was reasonably believed to be “trifling” and not worth claiming for.[1]
(b) However, it may not be a material fact if the injury was sufficiently serious from the outset to be worthwhile bringing an action.[2]
(c) Further, the economic consequences of an injury are capable of being a material fact.[3]
When the Material Fact Became Known
The Court examined whether Vivian should have reasonably known about the combined impact of his physical and psychological injuries earlier, which would have triggered the commencement of the limitation period. The applicant argued that, while he was aware of his back injury, he had not fully understood the psychological consequences of his injury until later in his recovery. The applicant also contended that the psychological injury was not initially diagnosed and was only recognized after a period of ongoing treatment.
Extension of Limitation Period
The Applicant argued that he couldn't work at the time of his TPD application due to injuries from the 2018 Incident but hoped to return if possible. The Court held that this shows he knew he couldn't work and had enough information to justify an action before the limitation date. The Court held that a reasonable person with his knowledge would have acted earlier. Thus, under s 31(2)(a) of the LA Act, the Applicant had not shown that a crucial fact was unknown to him until after the Relevant Date. Therefore, the Court's discretion under s 31 of the LA Act cannot be exercised.
Conclusion
Vivian v Gameover Pty Ltd [2024] QSC 263 is an important case for personal injury claimants who suffer both physical and psychological injuries. It highlights how the combination of injuries may not be immediately apparent, and the importance of considering psychological impacts in the context of workers’ compensation and personal injury claims. The case also clarifies the application of limitation periods and demonstrates that, in some instances, the limitation period may be extended if new material facts are discovered after the expiry of the usual time limit. The decision is a reminder that personal injury claimants may not always be aware of the full extent of their injuries at the time they first make a claim, and courts may allow for flexibility where necessary to ensure access to justice but that each case will turn on its own facts.
This article should not be taken as legal advice. If you have a matter that deals with the subject matter of this article then you should seek independent legal advice regarding the particular circumstances of your case.
Liability limited by a Scheme approved under professional standards legislation.
[1] Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283.
[2] Goodchild v Greatness Timber Co [No 1] [1968] 2 QB 372 .
[3] Watters v Queensland Rail [2001] 1 Qd R 448.