Worker absolved of sins of delay, lives to fight another day
A seriously injured truck driver ”of limited education” has won the right to pursue motor accident compensation damages after a last gasp limitation extension hearing to rectify his lawyers’ jurisdiction selection decision.
Colin Robertson lost control of his employer’s truck when its brakes failed and it careered into trees on Mt Tamborine’s steep and windy Mystery Road in May 2007.
In January 2008 he instructed solicitors to make a claim on the assumption that the vehicle had been inadequately maintained by his employer, an assumption deduced from a Department of Transport conviction of his boss Eric Stansfield, in the Southport Magistrates Court, over the faulty truck brakes.
A Workers’ Compensation & Rehabilitation Act Notice of Claim for Damages was served at the last minute – just before the expiration of the three year limitation - in May 2010 and WorkCover initially accepted the claim, admitting compliance.
In October 2010 WorkCover’s solicitors, Jensen McConaghy, uncovered DOT records revealing the inspection of the truck – or lack of it – was performed by a third party, Leslie Sellin and notified their counterparts opposite that they considered that the Motor Accident Insurance Act (MAIA) applied. Sellin, they said, should be joined as a contributor.
But by letter of 2 November – recieved the following day at the lawyers’ office – WorkCover’s solicitors notified that, for the reasons previously explained, they now denied liability altogether.
What to do? The time to sue under the MAIA had come and gone.
Extensions of the 3 year time bar are allowed if an injured person becomes aware of some “material fact of a decisive character” that could contribute to a viable claim that wasn’t previously known or couldn’t be discovered had they made sensible enquiries.
Could this new fact – Sellin’s role in the truck maintenance – be relied upon as “a material fact of a decisive character” to bring a MAIA claim against him?
The court answered this question in the affirmative but there were still hurdles for Robertson to overcome.
Firstly, if WorkCover’s lawyers were capable of discovering Sellin’s role, should Robertson himself have sensibly made those enquiries earlier? Perhaps yes, but by entrusting lawyers to take whatever steps were necessary to protect his interests, the court ruled he had acted reasonably and no more investigation was required of him.
Almost there. But just to live dangerously, Robertson’s lawyers only filed their extension of time plea on 26 October 2011, more than one year after being notified by WorkCover’s lawyers of the MAIA issue on 6 October 2010.
The solicitors were now dicing with another time limit that lays in waiting for the unsuspecting: a court can only extend the three-year period up to a maximum of 12 months after the claimant had become aware of the “material fact of a decisive character”.
In a skilful reprise, the lawyers argued that the 12 month period had only commenced to run from 3 November 2010 (the date they recieved the WorkCover liability denial letter) thus allowing up until 3 November 2011 for the commencement of proceedings.
In her judgment given on the spot following the 1 November hearing, but published only last week, her honour agreed: “the material facts only attained the decisive character when the plaintiff [then] realised that if he did not take action ….he had the potential of not having a successful action at all”.
Having left things to the last minute of the eleventh hour, the law firm gained a reprieve. Mr Robertson will get his day in court.
The calculation of de-limiting lawsuit time periods is rarely straight-forward but it appears that getting a lawyer on the job will preserve your rights however the job is executed. Seeking legal redress early was certainly the main factor in preserving Robertson’s claim beyond the usual time bar.
The lawyers’ vices had in fact proved to be their client’s virtue.
One has to ask just one further question: Even had the employer a role in the faulty brakes, could not a MAIA claim have been commenced anyway at the outset?