Limitation Application: alleged psychiatric condition not an impairment to commencing proceedings

Cummings v Visy Paper Pty Ltd & Anor [2016] QDC 208

Ryrie DCJ

The applicant was employed by the first respondent, Visy Paper, where he suffered a psychiatric injury as a result of bullying, harassment and intimidation. The injury occurred over a period between 1996 and 2001. The applicant filed a notice of claim for damages for the psychiatric injury on 10th February 2011 to which WorkCover Queensland waived compliance, however, maintained its right to rely on the limitation defence. The applicant sought to extend the limitation period pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) which relevantly reads:

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

Relevant history

The applicant originally filed an application for worker’s compensation with respect to the psychiatric injury in 2001 which was ultimately rejected by Q-Comp. However, in 2003 that decision was overturned in the Industrial Magistrates Court. The applicant believed at the time that this was the end of the matter. In 2007, the applicant suffered a subsequent workplace injury to his shoulder which was ultimately settled by his current solicitors in 2010. In 2008, the applicant spoke to his current solicitor about the earlier psychiatric injury where he recalled being advised that he had a right to pursue common law damages for that injury.

The parties’ contentions

The applicant argued that he did not know of his right to pursue common law damages for the psychiatric injury until 2008 when he spoke to his current solicitor. Relevantly, it was contended that the applicant was not psychiatrically fit to pursue such a claim. The respondent maintained that the 2003 decision by the Industrial Magistrates Court indicated the applicant had sufficient information on which a reasonable person would commence a claim. Further, it was argued that the medical evidence did not support a conclusion that the applicant had a psychiatric condition which would have prevented him from bringing a claim until 2011.


The issue for Ryrie DCJ was whether pursuant to s 31(2) of the LOAA a material fact of a decisive character relating to the applicant’s right of action was not within his means of knowledge until after 22nd February 2010. In dismissing the application and finding for the respondent, Ryrie DCJ refused the application to extend the limitation period. Relevantly:


[50] In either 2007 or 2008, the applicant was given certain advice from his current solicitor in respect of his right to pursue a common law action for damages against the 1st respondent … I find that the applicant was in possession of all material facts relating to his right of action against the 1st respondent which was within his means of knowledge at least by that point in time.


As to the applicant’s ability to pursue action for the psychiatric condition:


[51] The applicant relies on the opinion of Dr Byth, which in effect was that the applicant simply was not ‘well enough’ to pursue his claim until a point sometime in early 2010 at which time Dr Byth then considered the applicant could do so without exacerbating his underlying psychiatric condition … Significantly Dr Byth stated during his evidence before me that at the time he first saw the applicant, he considered that the applicant was in fact able to prosecute his claim for damages without any real risk of aggravation of his psychiatric condition.


Accordingly, the application was dismissed.


David Cormack – Brisbane Barrister and Mediator

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